KIDAR NATH versus MANGAT RAI & ORS.

Citation: [1970] 3 S.C.R. 213 · Decided: 31-10-1969 · Supreme Court of India · Bench: J.C. SHAH · Disposal: Dismissed

Judgment (excerpt)

A 
B 
c 
D 
E 
F 
G 
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H 
213 
KIDAR NATH 
v. 
MANGAT RAI & ORS. 
October 31, 1969 
[J. C. SHAH AND K. S. HEGDE, JJ.) 
Transfer of Property Act (4 of 1882)·, s. 58 (!), anomalous mortgage, 
U'hat is. 
Punjab Relief of Indebtedness Act, 1934, s. 30.-Whether legal re-
presentatives of debtor entitled to apply for relief-Scope of. 
_ Usurious L0<;ns Act, 1918, ss. 2(3)(a) (b) and (c) ands, 3(2)(e)-
Scope of. 
In a suit for redemption of a mortgage with possession under a mort· 
gage deed of 1896, the Court declared the amount due on the mortgages. 
No payment was made undeir the decree by the mortgagor. 
Instead, on 
his death, his replresentatives applied for relief under s. 30 of the Punjab 
Relief of Indebtedness Act, 1934 and the Usurious Loans Act, 1918. as 
amended by the East Punjab Amendment Act, 1948. The applicants were 
given relief by the High Court and the representatives of the mortgagee 
appealed to this Court. 
HELD: (I) Under the covenants in the mortgage deed. there is a 
stipulated rate of interest payable by the mortgagor, and the amount te· 
covered from the income was to be first applied towards interest and the 
bala~ce towards principal. 
It was an anomalous mortgage and 
not 
a 
usufructuary 
mortgage. 
The 
liability 
of the mortgagor to pay the 
money due under the mortgage and to pay interest accruing due creates 
a debt, even if it be assumed that the mortgagee had no right to enforce 
the mortgage by sale but only had a right of foreclosure. [217 H, 218 C] 
(2) The obligation is enfo<ceable against the estate of the debtor in 
the hands of his legal representatives. 
When it is so sOught to be en-
forced, in the absence of an express provision to the contrary, the re· 
presentatives may set up the defence which the original debtor could, if 
he had been sued. 
There is no' warrant, therefore, 
for the contention 
that the jurisdiction of the court under s. 30 . of the Punjab Relief of 
Indebtedness Act, is attracted only when the original debtor is the appli-
cant and not on the 
application of his legal 
representatives. [218 H; 
219 Al 
( 3) The legal representatives were not entitled to claim the benefit of 
the Usu'rious·Loails Act, 1918. Section 2(3) (a) and (b) do not apply 
to a suit for redemption by the mortgagor and cl. ( c) only applies in 
those cases where the security is given after the commencement of the 
Usurious Loans Act. [219 G] 
( 4) The legal representatives were entitled to the benefit of the Punjab 
Relief of Indebtedness Act. . The application of s. 30 of the Act does !lot 
depend upon the suit being one to which the Usurious Loans Act •PP!tes. 
Even if the suit is not within the definition in s. 2(3) of the Usunous 
Loans Act by virtue of s. 30 of the Punjab Relief of In,\!ebtedness A7t, 
the amount receiyed by a creditor in excess. of. the amount due to him 
under s. 3(2)(e) of the Usurious Loans Act" liable to be deducted from 
twice the amount actually advanced. [220 El 
214 
SUPREME COURT REPORTS 
[ 1970]3 S.C.R. 
( 5) Section 30 uses the expressiort "sum found by the court to hav.:: 
been ·actually advanced.' 
Such amount is not the amount found by the 
court to be the amount due on taking account. 
Therefore, the amount 
declared by the court as the amount due cannot be deemed to be the 
amount actually advancedi and under s. 30, the court cannot declare any 
amount due under the n1o'rtgage which is in excess of twice the amount 
actually advanced less any amount received in excess of the amount due 
to the creditor under s. 3(2)(<) the Usurious Loans Act. [220 H] 
CIVIL APPELLATE JURISDICTION : Civil Appeals Nos.· 10 and 
11 o.f 1966. 
Appeals from the judgment and decree dated May 23, 1961 
of the Punjab High Court in Regular First Appeals Nos. 184 of 
1954 and 6 of 1955. 
C. B. Agarwala and A. D. Mathur, for the appellant (in both 
the appeals). 
K. L. Gosain, N. N. Goswami and P. C. Khanna. for respon-
dents Nos. 1 to 4 (i·n C.A. No. 10 of 1966) and respondents Nos. 
1 to 6 (in S.A. No. 11 of 1966). 
.B. Datta, for respondent No. 18 (in C.A. No. 10 of 1966) and 
respondent No. 24 (in C.A. No. 11 of 1966). 
The Judgment of the Court was delivered by 
Shah, J.-On July 20,. 1896, L11dhia-grandfather of the 
respondents-borrowed Rs. 5,000 from Ramji Dass and as security 
for repayment thereof mortgaged with possession certain agricul-
tural lands and a house. 
The mortgage amount was to carry 
interest at the rate of 12 annas per cent. per mensem, and in defa

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