# Singheswar Singh and Others v. Nadni Prasad Singh and Others

- **Citation:** [1951] 1 S.C.R. 138
- **Court:** Supreme Court of India
- **Decided:** 1951
- **Bench:** SHiil H.un.u. KANIA C.J, Patanjali Sastiu, Chandrasj!Xhara Aiyar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/singheswar-singh-and-others-v-nadni-prasad-singh-and-others-169
- **Pages:** 8

## Headnote

Bihar Money.lenders (Regulation of Transactions) Aa (Vil of
1939), s. 7-Ereculion of fresh document for amount remaining due
on loan under eariler document-Suit on later
document-Interest
before date of suit-Mazimum amount that could be decreedW hether to be calct1!ated on basis of earlier or later doctm1ent-
"A1"ount of loan
mentioned in, or evidenced by, such document''
meaning of.
Where a fresh document is executed for the amount remaining due on account of principal and interest under a loan advanced
on a prior document, aud a suit is brought for recovery of the
amount due under the 1atcr document with interest due thereunder, "the amount of loan mentioned in, or evidenced by,
such
document" for the purpmcs of s. 7 of the Bihar Money-Lenders
(Regulation of Transactions) Act, 1939, is the amount mentioned
or evidenced by the later document and not that mentioned in
the original document which was renewed and the court can pass
a decree for an amount of interest for the period prc..:::::ding the
institution of the suit, \vhich together with any amount realise as
interest after the date of the later document, is not greater than
the amount of loan mentioned in the later document.
The maximum amount that can be: so dccrccd is not the amount \vhich
together with the interest realised from the date of the original
loan docs not exceed the original loan.
Singheswar Singh and Others v. Nadni Prasad Singh and Others
(A.I.R. 1940 Pat. 65). UJl Singh v. Ramnarain Ram and
Others
(A.LR. 1942 Pat. 138), Madho Prasad Singh v. Mu/cutdheri Singh
and Others {193 I. C. 661), Deo Nandan Prasad v. Ram Prasad
(I.L.R. 23 Pat. 618), Ram Nandan Prasad Narain Singh v. K11lpati
Shri Mahanth Goswami Madhwanand Ramp ((1940] F.C.R.
1).
Surendra Prasad Narain Singh v. Sri Gajadhar Prasad
Saht1
Trust Estate and Others ( [ 1940) F.C.R. 39) referred to •
.APPELLATE
JU!USDICTION : Civil
Appeals
Nos. 98,
99, 100 and 101 of 1950.
•
_,
S.C.R.
SUPREME COURT REPORTS
139
Appeals from the orders of the High Court of Judicature at Patna
(Manohar Lall and Imam JJ.)
in
Miscellaneous Appeals Nos. 108 to 111 of 1948.
Shambhu
Barmeswar
Prasad
and
Ramanugrah
Prasad for the appellants.
H. /. Umrigar for the respondents.
1951. January 12.
The Judgment of the
Court was
delivered by
CHANDRASEKHARA AIYAR J.-The decision
of
these
four appeals, which are connected with each other and
which have arisen out of orders made by the High
Court of Patna in four Miscellaneous Appeals, depends
on the interpretation of section 7 of the Bihar Moneylenders (Regulation of Transactions) Act, 1939.
The facts which have led to the appeals are found
briefly stated in the
petition
filed
by the Present
appellants in the 3td Court of Sub-Judge, Patna, and
may be re-stated here for convenient reference :-
"The father of the petitioners borrowed Rs. 40,000
from the guru (ancestor) of the decree-holder under
mortgage bond, dated 11-1-1893.
Out of Rs. 40,370-7-6 interest and compound interest
up to 4-1-1910,
Rs. 32,370-7-6 was paid in cash and
for the balance
Rs. 8,000 interest
and
Rs. 40,000
principal, i.e., for Rs. 48,000 a Mortgage Suit No. 14
of 1910 was filed in 1st Court of the Sub-Judge, Patna,
and in lieu of the claim and cost of the said suit two
fresh mortagage bonds were executed on 11-7-1910, viz.,
one for Rs. 40,000 and the other for Rs. 9,488 and the
lattei: bond was satisfied by payment of Rs. 15,835 in
cash.
With respect to the above bond
of
Rs. 40,000 dated
11-7-1910 the
petitioners paid
Rs. 38,530-13-6.
Mortgage Suit No. 110 of 1927 was brought in the 3rd
Court> of the
Sub-Judge,
Patna,
and
a
decree
for
Rs. 58,012-2-0 was passed on 9-7-1929.
Out of this
Rs. 5,000 was paid in cash and for the balance of
Rs. 53,012-12-0 one mortgage
bond
dated 6-10-1931
was executed for Rs. 42,000 and on the same date two
2-1 S. C. Tndia/68
1951
R4mnaadan
Prasad NarayaR
Singh
v.
Malumtft
Kapild<o Ram
]It and Anothlf.
Chandrasekhar11
Aiya1J.
1951
Ramnandan
Prasad Narayan
Singh
v.
Mahantil
Kapil.Uo Ram

## Text

1951
Jan.12
I
138
SUPREME COURT REPORTS
[1951]
RAMNANDAN PRASAD NARAYAN SINGH
"·
MAHANTH KAPILDEO RAM JEE AND
ANOTHER
(and 3 other appeals)
[SHiil H.un.u. KANIA C.J., PATANJALI SASTIU
and CHANDRASJ!XHARA AIYAR JJ.]
Bihar Money.lenders (Regulation of Transactions) Aa (Vil of
1939), s. 7-Ereculion of fresh document for amount remaining due
on loan under eariler document-Suit on later
document-Interest
before date of suit-Mazimum amount that could be decreedW hether to be calct1!ated on basis of earlier or later doctm1ent-
"A1"ount of loan
mentioned in, or evidenced by, such document''
meaning of.
Where a fresh document is executed for the amount remaining due on account of principal and interest under a loan advanced
on a prior document, aud a suit is brought for recovery of the
amount due under the 1atcr document with interest due thereunder, "the amount of loan mentioned in, or evidenced by,
such
document" for the purpmcs of s. 7 of the Bihar Money-Lenders
(Regulation of Transactions) Act, 1939, is the amount mentioned
or evidenced by the later document and not that mentioned in
the original document which was renewed and the court can pass
a decree for an amount of interest for the period prc..:::::ding the
institution of the suit, \vhich together with any amount realise as
interest after the date of the later document, is not greater than
the amount of loan mentioned in the later document.
The maximum amount that can be: so dccrccd is not the amount \vhich
together with the interest realised from the date of the original
loan docs not exceed the original loan.
Singheswar Singh and Others v. Nadni Prasad Singh and Others
(A.I.R. 1940 Pat. 65). UJl Singh v. Ramnarain Ram and
Others
(A.LR. 1942 Pat. 138), Madho Prasad Singh v. Mu/cutdheri Singh
and Others {193 I. C. 661), Deo Nandan Prasad v. Ram Prasad
(I.L.R. 23 Pat. 618), Ram Nandan Prasad Narain Singh v. K11lpati
Shri Mahanth Goswami Madhwanand Ramp ((1940] F.C.R.
1).
Surendra Prasad Narain Singh v. Sri Gajadhar Prasad
Saht1
Trust Estate and Others ( [ 1940) F.C.R. 39) referred to •
.APPELLATE
JU!USDICTION : Civil
Appeals
Nos. 98,
99, 100 and 101 of 1950.
•
_,
S.C.R.
SUPREME COURT REPORTS
139
Appeals from the orders of the High Court of Judicature at Patna
(Manohar Lall and Imam JJ.)
in
Miscellaneous Appeals Nos. 108 to 111 of 1948.
Shambhu
Barmeswar
Prasad
and
Ramanugrah
Prasad for the appellants.
H. /. Umrigar for the respondents.
1951. January 12.
The Judgment of the
Court was
delivered by
CHANDRASEKHARA AIYAR J.-The decision
of
these
four appeals, which are connected with each other and
which have arisen out of orders made by the High
Court of Patna in four Miscellaneous Appeals, depends
on the interpretation of section 7 of the Bihar Moneylenders (Regulation of Transactions) Act, 1939.
The facts which have led to the appeals are found
briefly stated in the
petition
filed
by the Present
appellants in the 3td Court of Sub-Judge, Patna, and
may be re-stated here for convenient reference :-
"The father of the petitioners borrowed Rs. 40,000
from the guru (ancestor) of the decree-holder under
mortgage bond, dated 11-1-1893.
Out of Rs. 40,370-7-6 interest and compound interest
up to 4-1-1910,
Rs. 32,370-7-6 was paid in cash and
for the balance
Rs. 8,000 interest
and
Rs. 40,000
principal, i.e., for Rs. 48,000 a Mortgage Suit No. 14
of 1910 was filed in 1st Court of the Sub-Judge, Patna,
and in lieu of the claim and cost of the said suit two
fresh mortagage bonds were executed on 11-7-1910, viz.,
one for Rs. 40,000 and the other for Rs. 9,488 and the
lattei: bond was satisfied by payment of Rs. 15,835 in
cash.
With respect to the above bond
of
Rs. 40,000 dated
11-7-1910 the
petitioners paid
Rs. 38,530-13-6.
Mortgage Suit No. 110 of 1927 was brought in the 3rd
Court> of the
Sub-Judge,
Patna,
and
a
decree
for
Rs. 58,012-2-0 was passed on 9-7-1929.
Out of this
Rs. 5,000 was paid in cash and for the balance of
Rs. 53,012-12-0 one mortgage
bond
dated 6-10-1931
was executed for Rs. 42,000 and on the same date two
2-1 S. C. Tndia/68
1951
R4mnaadan
Prasad NarayaR
Singh
v.
Malumtft
Kapild<o Ram
]It and Anothlf.
Chandrasekhar11
Aiya1J.
1951
Ramnandan
Prasad Narayan
Singh
v.
Mahantil
Kapil.Uo Ram
Jet and Another.
--
Chantltase~hara
A(rar J.
140
SUPREME COURT REPORTS
[ 1951]
hand-notes were executed, viz., rme for Rs. 5,000 and
one for Rs. 6,012-Ul.
One Suit No. 14 of 1933 for
both
the
hand-notes
was brought in 3rd Court of the Sub-Judge
and
a
decree for Rs. 15,008-2-0 was passed on 28-2-1935.
T.his decree is under execution."
When the decree-holder sought to execute the money
decree
by
attachment and sale
of
the
judgmentdebtors' properties stating that they were subject to a
mortgage lien of Rs. 62,272-13-0 under the mortgage
bond
dated 6-10-1931,
the
two
judgment-debtors,
who are brothers,
filed objections
under
sections
11
and
16
of
the
earlier
Bihar
Money-lenders
Act III of 1938 and section 47 of the Civil Procedure Code.
The petitions (two by each of them)
were filed separately by the brothers.
They urged
that on a proper calculation under section 11
no lien
was subsisting on- the properties
owing
to payments
made
towards
the
mortgage
debt amounting
to
Rs. 92,394-2-0. The Subordinate Judge held that this
plea of the judgment-debtors could not be entertained
in the Miscellaneous case before him relating to the
execution and all that could be done was to notify the
mortgage incumbrance without deciding anything as
to the correctness of the amount claimed to be due
under it ; and this conclusion was partly based
on the
fact that section 16 of the Act had been declared by
the High Court void.
Appeals taken to the High
Court
were
dismissed.
The judgment-debtors thereupon preferred an appeal to the Federal Court, · contending that section 7 and 13 of the new Act ( corresponding to
sections 7 and 11 of the old Act)
were
applicable and that it was the duty of the court to
estimate the value of the property
after
making the
nec~ssary calculations under section 7 with reference to
the lien. The decision of the Federal Court is reported
in Ramnandan Prasad Narain Singh and Another v.
Kulpati
Shri
Mahanth
Goshwami
Madhwanand
Ramji('). The case was
remitted back to the High
(!) [1940] F.C.R. I.
-
S.C.R.
SUPREME COURT REPORTS
141
Court, giving liberty to the appellants to file an application under section 13.
In answer to a fresh application
for
execution dated
2-7-1942, the two brothers
filed the
same
objections
as before. Miscellaneous Cases Nos. 45 and 46 of 1942
related to sections 7 and 13 of the Bihar Money-lenders
Act and Miscellaneous Cases Nos. 50 and 52 of 1942
related to the objections under section 47 of the Code
of; Civil Procedure.
The Subordinate Judge held that
the amount of the loan should be taken as the amount
mentioned in the mortgage deed of 1931 and not the
amount advanced in 1893 and that a sum of Rs. 70,840
was still due on the bond.
He determined the market
value of the several properties given as security, adopting 16 times the net income as the basis.
Appeals to the High Court were numbered .as M. A.
108 to 111 of 1943 and they were heard by Manohar
Lall and Imam JJ. They modified the order of the
lower Court in certain respects.
Even accoriling to
them the amount of the loan was what was mentioned
in the mortgage bond of 6-10-1931, but as a sum of
Rs. 11,855-3-0 had been repaid
expressly
towards
the
principal amount after the date of
the
bond, . that
amount became reduced
to
Rs. 28,150.
Adding an
equal sum by way of interest which according to them
was the maximum amount, permitted
to be allowed
under section 7 of the
Act, the
total
liability was
stated to be Rs. 56,300 and a charge was declared on
the property for this amount. They also
directed that
the valuation of the property should be fixed at twenty
times the net income and
not sixteen
times. It is
from this order that the present
appeals
have been
preferred.
Two points were urged on behalf of the appellants,
namely
(a) that the decree-holder was
barred
by
constructive res-judicata
from
contending
that
the
construction placed upon section 7 by
the judgmentdebtors was wrong ; and (b) that in applying section 7,
we must consider the original amount of loan
of
Rs. 40,000 given in the year 1893 and allow the claim
1951
Ramnandan
Prasad Narayan
Singh
v.
Mahanth
Kapjldto Ram
]It and Anoth<T,
Chandrasekhar a
Aiyar ].
1951
Ramnarztfan
Prasad Narayan
Singh
v.
Mnhaoth
Kapildeo Ram
Jee and Anothtr
Chandrasekhar
A(yar J·
142
SUPREME COURT REPORTS
[1951]
of interest only for that maximum sum, after taking
into account all sums paid by the appellants and their
predecessors towards interest since 1893.
The first point is entirely without substance.
When
the decree-holder contended that
section 11
of the
Bihar Money-lenders Act, 1938, was declared void and
ultra vires and that therefore section 7 of the new Act
which corresponded to
section 11 was
also
inapplicable, the judgment-debtors
pleaded that they
were
entitled to the benefit of section 7 of the new Act.
The Federal Court held in Ramnandan Prasad Narain
Singh and Another v. Kulpathi
Shri Mah'anth Goshwami Madhwanand Ramji(') that the judgment-debtors (present appellants) were entitled to claim the benefit of the provisions of the new Act when the executing
court proceeded under section 13
to determine the
value of the properties to be sold. The correct interpretation of section 7 was not in question between the
parties.
To say that the appellants were entitled to
take advantage of the provisions of section 7 is entirely
different from the contention
that
the
interpretation
sought to be put by them on section 7 was the right
one.
The Federal Court was not dealing with any
question of interpretation at all.
It is
impossible to
see
where
the doctrine of
constructive res-judicata
comes in, so as to be of help to the appellants.
The second question raised on their behalf relates to
the true meaning of section 7 of the Bihar Moneylenders (Regulation of Transactions) Act VII of 1939,
which is in these terms :-
"7. Notwithstanding
anything
to
the
contrary
contained in any other law or in anything having the
force of law or in any agreement, no Court shall, in any
suit brought by a money-lender before
or
after
the
commencement of this Act in respect of a loan advanced
before or after the commencement of this Act or in
any appeal or proceedings in revision arising out oE
such suit, pass a decree for an amount of interest for
the period
preceding
the
institution of the
suit,
(1) [1940] F.C.R. I.
•
S.C.R.
SUPREME COURT REPORTS
143
which together with any amount already realised
as
interest through the court
or otherwise,
is
greater
than the amount of loan advanced, or, if the loan
is based on a document, the amount of loan mentioned
in, or evidenced by, such document."
In the present case, the original loan of
Rs. 40,000
was advanced as early as
11-1-1893.
The
appellants
contend that for the purposes of calculating the interest
to be decreed prior to the date of the suit the loan
advanced must be taken to be the original sum and
that if an account is taken of all the sums received by
the creditor as interest from that date up to the date
of the suit, there would be nothing due for interest.
On the other hand, the decree-holder urges that having
regard to the latter part of the section, the loan must
be taken to be the amount mentioned in the mortgage
bond dated 6-10-1931, namely Rs. 42,000.
Whichever
method of calculation is· adopted, it must be remembered that it has . to be . made not for the purposes
of
passing any decree on the mortgage loan, but for estimating under section 13 of the Act the
value of the
properties to be brought. to sale in
execution of the
money decree against the appellants.
As pointed out
by
Sir Maurice Gwyer C.J.
in
Surendra
Prasad
Narain . Singh v.
Sri Gajadhar
Prasad Sahu Trust Estate and Others(1), "Section 7 of
the Act of 1937 is no doubt extremely obscure and illdrawn."
The true intention . of the framers of the Act
is somewhat difficult to gather. But the Patna High
Court has been consistently placing . upon the
section
an interpretation which is opposed to the · · contention
of the appellant in these proceedings.
The
point
came up
expressly for
decision in
Singheshwp Sibgh and Others v. Madni Prasad Singh
and Others(2) where a mortgage bond was executed
on 31-8-1922 for a sum of Rs. 2,000 which was the
balance of the priQcipal and
interest
due
under a
mottgage bond of the 11th of October, 1912, for
(1) [19.fOJ F.c.R. 39.:
(2) A.I.R. 1940 Pat. 65.
19 .
.
1951
&mnaadim
PrtJJad Narayan
Singh
v.
Mahanth
l(apj/deo Ram
Jae and A not ha.
CluznartJJekhora
Aiyar ].
J95J
Ranmandax Prasad
Narr.yan Singh
v.
Afahanth f(apilr/to
R.arr Jee and
Another,
Chandrasekhara
Abar J.
144
SUPREME COURT REPORTS
[1951]
Rs. 1,391.
The judgment-debtors raised the plea that
the court should go back to the earlier bond of 1912
and that as a sum of Rs. 1,512 had been paid as and
by way of interest towards that bond, no decree could
be passed against them for more than
the
principal
sum of Rs. 1,391.
The learned Judges
rejected
this
contention and took the amount stated in
the document of 1922, namely Rs. 2,000, as the loan and
they
held that the plaintiffs were entitled to get a decree
for interest for a sum not larger than Rs. 2,000 as no
payment had been proved to have
been made after
the execution of the bond. The same view was taken
in Lal Singh v. Ramnarain Ram and Others(')
and
the plaintiffs were ~warded a decree on the basis that
the loan was to be taken as Rs. 2,909-8-0 which was
the amount for which the hand-note sued upon was
executed and not Rs. 1,000 which
was
the
original
amount advanced upon an earlier hand-note of the
year 1924.
The case reported in Madho Prasad Singh
v. Mukutdhari Singh and Others(') lays down the same
position.
The Full
Bench
decision in
Deo Nandan
Prasad v. R'am Prasad(')
reiterates
the
same
view,
pointing out the distinction between sections 7 and 8
of the Act and stating that while under section 8 we
can go to the original
loan in spite of a later document
under section 7, the loan must relate to the document
on which the suit is based, that is, the final document
and not the original one. In each ~ne of these cases, the
question of the true meaning of section 7 was pointedly
considered. This construction no dciubt enables
a creditor to circumvent the beneficient provisions of the
Act by taking a document for the interest due anil adding it to the principal amount. Gwayer C. J. points out
this difficulty at p_age 59 in the case Surendra Prasad
Narain Singh v. Sri
Gaiadhar
Prasad
Sahu
Trust
Estate and Others('). If the interpretation does
not
carry out the intentions of the framers of the Act by
reason of unhappy or ambiguous phrasing, it is for the
Legislature to intervene. But far from doing so, it has
(I) A.I.R. 1942 Pat. 138, 139.
(2) (1941) 193 I.C. 661.
(3) I.L.R. 23 Patna 618.
(4) [1940] F.C.R. 39.
S.C.R.
SUPREME COURT REPORTS
145
acquiesced, during all these years in the construction
which the Patna High Court has been placing upon the
section from the very next year after the enactment
of the statute.
Having regard to the great obscurity
in the language employed in the relevant provisions
and the inaction of
the
Legislature, it is,
in
our
opinion, legitimate to infer that the view expressed by
the Patna High Court is in accord with the intention
of the Legislature.
The appeals fail and are dismissed with
costs,
only
one set in all of them together.
Appeals dismissed
Agent for the appellants: Tarachand Brij Mohanlal.
Agent for the respondent : R. C. Prasad.
RAI BRIJ RAJ KRISHNA AND ANOTHER
v.
S. K. SHAW AND BROTHERS.
(SAIYID FAZL ALI, MEHER CHAND MAHAJAN,
MuKHERJEA and CHANDRASEKHARA ArYAR JJ.J
Bihar Buildings (J..rau-, Rent and Eviction) Co11:trol Act (Ill
of 1947), s., 11-0rder of Controller for eviction on the ground of
non-payment of rent- Suit to set aside order-Jurisdiction of civil
cour:-Q11estion rtihc:her
there
was
non-payment-Finai1ty
of
Controller' 1 tleeision.
Section 11 of the Bihar Buildings (Lease, Rent and Eviction)
Control Act, 1947, has entrusted the Controller with a jurisdiction, which includes the jurisdiction to determine whether there
is non-payment of rent or not, as
well as the jurisdiction, on
finding that there is nor.-payment of rent, to order eviction of a
tenant. Therefore, even if a Controller has wrongly decided the
question whether there has been non-payment of rent, his order
for eviction on the ·ground that there has been non-payment of
rent cannot be questioned in a civil court.
Queen v. Comm_iuroners for Special Purposes of Income·To1t
(21 Q.B,D. 313) and Colonial Bank of Australasia v.
W1'llah (L.R.
S P.C. 417) relied on.
1951
Ramananitan Prasal
Narayan Singh
V•
Mahanth Kapildeo
RamJeeaud
Another
Chandrasekhara.
Aiyar J.
i95I
Feb. 2.