Judgment

RAGHUBAR DAYAI, J. : We allowed Civil Appeal No. 533 of 1960 on May 4, 1962* by our Judgment dealing with the facts of the case and giving the reasons for the opinion expressed. It is not necessary to repeat them.

2. Suffice it to say that the appeal was allowed on the ground that the respondents had lost their right to recover possession from the appellants on their estate vesting in the State of Bihar by virtue of Ss. 3 and 4 of the Bihar Land Reforms Act, 1950 (Bihar Act XXX of 1950), hereinafter called the Act, and their having no subsisting right to recover possession from the appellants. It was also held that they could not get advantage of the provisions of cl. (c) of sub s. (1) of S. 6 of the Act, as amended by the Bihar Land Reforms (Amendment) Act, 1959 (Act XVI of 1959) as no mortgage subsisted on the date of vesting. The amended cl. (c) reads as follows :

(c) Lands used for agricultural or horticultural purposes forming the subject matter of a subsisting mortgage on the redemption of which the intermediary is entitled to recover khas possession thereof."

3. It is contended for the respondents, who applied for the review of our Judgment, that our view that the mortgage was not subsisting on the date of vesting was wrong The contention is that even though the respondents mortgagors had paid up the mortgage money in 1943, the mortgage continued to subsist till the date of vesting as by that time the right of redemption given by S. 60 of the Transfer of Property Act had not come to amend. That right, according to the respondents contention, would not come to an end so long as the mortgagors right to ask the mortgagees to perform any of the acts mentioned in S. 60 continues. In support of the contention that the mortgage continues till the right of redemption comes to an end, reliance is placed on the case reported as Subba Rao v. Mattanalli Raju 1919 FCR 484 " We do not agree with these contentions.

4. Section 58 of the Transfer of Property Act defines mortgage to be a transfer of an interest in specific immovable property for the purpose of securing the payment of money advanced or to be advanced by way of loan, an existing or future debt, or the performance of engagement which may give rise to a pecuniary liability. It also defines various varieties of mortgage and, in clause (d) defines usufructuary mortgage thus:

"Where the mortgagor delivers possession or expressly or by implication binds himself to deliver possession of the mortgaged property to the mortgagee, and authorizes him to retain such possession until payment of the mortgage-money, and to receive the rents and profits accruing from the property or any part of such rents and profits and to appropriate the same in lieu of interest, or in payment of the mortgage money, or partly in lieu of interest or partly in payment of the mortgage money, or partly in lieu of interest or partly in payment of the unfructuary-money, the transaction is called a usufructuary mortgage and the mortgagee a usufructuary mortgagee".

When the mortgage money is paid by the mortgagor to the mortgagee, there does not remain any debt due from the mortgagor to the mortgagee, and therefore the mortgage can no longer continue after the mortgage money has been paid. The transfer of interest represented by the mortgage was for a certain purpose, and that was to secure payment of money advanced by way of loan. A security cannot exist after the loan had been paid up. If any interest in the property continues to vest in the mortgagee subsequent to the payment of the mortgage money to him, it would be an interest different from that of a mortgagee s interest. The mortgage as a transfer of an interest in immovable property for the purpose of securing payment of money advanced by way of loan must come to an end on the payment of the mortgage money.

5. Further, the definition of usufructuary mortgage itself leads to the conclusion that the authority given to the mortgagee to remain in pos