Decided on November 30,1961

MD. YUSUF Appellant
SARIFAN BIBI Respondents


P.N.MOOKERJEE, J. - (1.) THIS is the defendants' second appeal, arising out of a suit, for inter alia and in subsance, redemption of a mortgage.
(2.) THE suit property belonged to pro forma defendant No. 4 Sukhdas Bind. This pro forma defendant No. 4 mortgaged the said property to Rafikunnessa Bibi wife of defendant appellant No. 1, Md. Yusuf, and mother of the other two appellants, who were defendants Nos. 2 and 3 in the court below. The relative mortgage deed is dated December 6, 1949. It recites that it was for a consideration of Rs. 3,500/ - which was stated to be the principal amount of the aforesaid mortgage in the said deed. Defendant No. 1, Who is appellant No. 1 before us and who was the husband of the original mortgagee Rafikunnessa Bibi, who has since died, appears to have been a tenant in possession of the suit property at the time of the aforesaid mortgage and ever since. The rent, payable for this tenancy, is Rs. 95/ - per month, the tenancy running according to the English calendar. While the above mortgage was subsisting, the suit property was sold by pro forma defendant No. 4 to the plaintiff by a kobala dated August 9, 1955, for a consideration of Rs. 5,000/ - subject to the said mortgage.
(3.) THE present suit was brought on September 3, 1955, upon the allegation, inter alia that the above mortgage, which was, in form and substance, a usufructuary mortgage, had been satisfied by the receipts, already obtained by the mortgagee from the suit property, and, as a matter of fact, it was the plaintiff's definite allegation, that the mortgagee had realised much more than her legal dues under the aforesaid transaction and, upon that footing, a claim was made that proper accounts should be taken for ascertaining the rights and liabilities of the parties in respect of the dues under the aforesaid mortgage, and, after a declaration that the said mortgage had been satisfied, possession should be made over to the plaintiff and excess receipts should be refunded. In the plaint, it was further claimed that, although, in the deed, a consideration of Rs. 3500/ - had been mentioned as the mortgage money, as a matter of fact, only Rs. 3000/ - Had been paid and the balance of Rs., 500/ -. for which a pro -note was given by the mortgagee's husband to the mortgagor, was never paid as the said pronote remained unsatisfied The plaint also averred that, in view of the Bengal Money Lenders Act, upon the above principal of Rs. 3,000/ -, the mortgagee could not claim anything more than double the said amount, that is, anything beyond Rs. 6,000/ -, and, more than Rs. 12,000/ - having been realised by her from the mortgaged properties, the aforesaid mortgagee's claim has been satisfied and the plaintiff was entitled to refund of the excess amount.;

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