ORDER

The result of this appeal turns on the interpretation of the notification No. S.O. 207 dated 13th February, 1981 issued by the Government of Bihar under Section 12 of the Bihar Money Lenders Act, 1974 (Bihar Act 22 of 1975) (hereinafter referred to as the Act ) and its interaction with the relevant provisions of the Act.

2. The appellant filed the suit seeking a declaration that he is entitled to retain possession of the mortgage property till mortgagors repay the loan and for other consequential reliefs. The case of the plaintiff, shorn of unnecessary details, was that the suit land was mortgaged with him by the predecessor-in title of the respondent under three deeds of usufructuary mortgage executed on 26th of July, 1974 and 4th of November, 1974. The total area of land covered under the three documents as stated by Shri Sanyal, learned senior counsel for the appellant, is 3.12 acres. The further case of the plaintiff was that he was entitled to exemption from the purview of Section 12 of the Act under the notification dated 13th February, 1981 since the total land held by him was less than 5 acres. He placed reliance on the oral and documentary evidence placed on record including Exh. 3 which, according to him, was a document of family arrangement.

3. The case of the defendant on the other hand, was that the land-holding of the mortgagee was more than 5 acres; therefore he was not entitled to exemption under the notification referred to above. It was the contention of the defendant that Section 12 of the Act was applicable in the case and 7 years from the date of the mortgage having elapsed, the mortgages stand automatically redeemed and he was entitled to recover possession of the property.

4. Before considering the case of the parties on merit, it will be convenient to quote the relevant provisions of the Act. Section 12 of the Act is quoted hereunder:

"12. Usufructuary mortgages and their redemption-Notwithstanding anything to the contrary contained in any law or anything having the force of law or in any agreement, the principal amount and all dues in respect of an usufructuary mortgage relating to any agricultural land, whether executed before or after the commencement of this Act, shall be deemed to have been fully satisfied and the mortgage shall be deemed to have been wholly redeemed on expiry of a period of seven years from the date of the execution of the mortgage bond in respect of such land and the mortgagor shall be entitled to recover possession of the mortgaged land in the manner prescribed under the rules:

Provided that if the mortgage bond had been executed before the commencement of this Act nothing in this section shall entitled the mortgagor to claim any accounts or profits from the mortgagee by the reason of the benefit of redemption of the mortgage under this provision.

Explanation-Nothing in this section shall be construed to confer a right of effecting usufructuary mortgage of land on persons who do not possess transferable rights in such land."

5. Under Section 3 of the Act, power is vested in the State Government to exempt by notification any class of money lenders or any class of loan in the whole or any part of the State of Bihar from operation of all or any of the provisions of the Act. The notification dated 13th February, 1981 was issued in exercise of the power under Section 3 of the Act. The relevant portion of the notification reads:

"Now, therefore, in exercise of the powers conferred by Section 3 of the said Act, the State Government is pleased to exempt all such mortgagee land-holders holding land not more than seven acres (equivalent to 2.8329 hectares) in North and South Chotanagpur Divisions and district of Santhal Parganas and five acres (equivalent to 2.0235 hectares) in other parts of the State, and who advance loans on usufructuary mortgage of agricultural land from the operation of Section 12 of the said Act from the date of publication of this notification in the Bihar Gazette."

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