The main legal point established in the judgment is the interpretation of the Bengal Money-lenders Act and its application to the rights and obligations of the parties in a mortgage agreement.

JUDGMENT

Henderson, J. - This appeal is by the mortgagee and it arises in connexion with an application made by the respondent under the provisions of Section 38, Bengal Money-lenders Act. Exhibit 1 is a copy of the usufructuary mortgage bond executed by the respondent in favour of the appellant. Under its terms the appellant was to remain in possession of the mortgaged property in lieu of interest. The principal sum advanced was RS. 440. The respondent paid this sum into Court under the provisions of section 83, T. P. Act. The appellant refused to take it on the ground that the deposit was insufficient. It cannot be ascertained with precision from the materials on the record on what, basis this objection was sought to be sustained. It seems, however, that the appellant was relying upon Ex. 3 a later mortgage, which according to the respondent was never acted upon. At any rate, it is the validity of this document which is the chief point of dispute between the parties. A few months after the deposit u/s 83, T. P. Act, became infructuous, the Bengal Money-lenders Act came into force. The respondent then filed the present application with, for him, the delightful result that he has obtained a declaration that, instead of being indebted to the appellant, he is entitled to recover Rs. 83 from her. An appeal by the appellant to the District Judge was dismissed

2. Mr. Ghose has objected to the form of the Order and contends that the Court has no jurisdiction Under this section to find that anything is due from the mortgagee to the mortgagor. Mr. Das conceded that this contention is correct, and admitted that the most he could ask for is a declaration that nothing is due on the mortgage.

3. On the merits, Mr. Ghose contended that section 38 has no application in view of the terms of the bond. The mortgagee was put into possession in lieu of interest. u/s 77, T. P. Act, he was absolved from accounting. As a result, no question of accounting can arise. The question depends upon the provisions of Section 30, Bengal Money-lenders Act. Under Sub-section 1 (c) interest is not to exceed 8 per cent, per annum. This applies even when the loan was advanced and interest was paid before the commencement of the Act. The result is that the respondent is entitled to the benefit of this provision in spite of the terms of the original bond. The Munsif was, therefore, right to take an account and limit the rate of interest to that allowed by the section.

4. In the second place it was contended that the respondent is estopped from making this application in view of his deposit u/s 83, T. P. Act. There is nothing in this connexion upon which any plea of estoppel can be based. The deposit merely amounted to an offer which the appellant refused. As long as his equity of redemption remains intact, the respondent cannot be prevented from taking advantage of an Act passed to give relief to debtors.

5. It remains to consider one curious argument on behalf of the appellant to the effect that the Munsif was wrong in allowing interest at 8 per cent., when the bond itself does not provide for any particular rate. When I asked Mr. Ghose what rate should be allowed in view of the provisions of the bond, he was of course unable to give any answer. If anything turns upon the provisions of the bond in this respect, the only conclusion would be that the appellant is not entitled to any interest at all. The Munsif was obviously right when be calculated the interest at the highest rate allowed by the law.

6. Objection was also taken to some of the findings on the report of the commissioner who took the accounts. These are dealt with Under the headings 3, 4 and 5 in the final judgment of the Munsif. The sums under the first two heads are so small that they do not affect the result. I only deal with them because of the principle involved. They consist of money which the appellant might have realised from the tenants but actually did not. Under the terms of the bond, the appellan