Norman Macleod, Kt., C.J.
1. The plaintiff sued to recover on a mortgage bond dated the 6th of August 1910 Rs. 99-l5-0 principal and interest at 12 per cent from the date of the mortgage to the date of suit. The mortgage is as follows:
I took from you to-day Rs. 99-15-0 to pay Mulchand Jeth; bhai. This is without interest, in consideration of this the property of my ownership situated at Wafagaon is mortgaged. The property thus described is mortgaged to you and delivered into your possession. According to the terms I shall pay the amount without interest within one year and shall take back the mortgaged property-my lands-into my possession. The profits of the said land should be enjoyed in lieu of interest. If the amount is not repaid within the stipulated time, the profits should be enjoyed in lieu of interest according to the aforesaid agreement. If the money be demanded after the expiry of the stipulated period and if I be unable to pa> the same the rupees without interest should be realized by the sale of the mortgaged property. If the amount realized is not sufficient, I shall be personally liable for the balance.
2. The plaintiff never got possession of the property under the terms of the mortgage. The property who sold by the first defendant on the 13th of April 1915 to the 2nd defendant. The trial Court passed a decree for the sum claimed with further interest at 12 per cent, per annum from date of suit to date of decree on the principal sum with costs of suit against the 2nd defendant. It was also decreed that if the defendant 2 did not pay the amount decreed into Court within six months, the property should be sold. On the question of interest the learned Judge said; 'It is not shown, nor is it defendant 2's case, that the plaintiff', the mortgagee, had ever been in the enjoyment of the mortgaged land though the mortgage deed is possessory in form. As the mortgagor has been in actual possession and the mortgage is merely possessory in form only, plaintiff is entitled to charge interest on the principal sum at a reasonable rate and the rate of 12 per cent, per annum claimed by him is fair.' In appeal this decree was altered substituting the amount of Rupees 99-15-0 for Rupees 188-15-0, by deleting the direction to pay future interest at 12 per cent, per annum from date of suit to date of decree, by deleting the direction to pay future interest on the principal from date of decree to date of payment and by directing that the costs in the lower Court should be borne in proportion to the success and failure as between respondent and appellant. The learned Judge said that the case appeared to be on all fours with Mahadoji v. Joti I.L.R. (1892) Bom. 425 and it was the fault of the mortgagee himself if he took no steps to recover possession of the mortgaged property. The terms clearly showed that the mortgaged property was a security only for the amount borrowed and not fur interest, that the mortgagee was to have possession and enjoyment of the profits of the mortgaged property, in lieu of interest which was not made payable otherwise, that the amount advanced was recoverable after one year by sale of the property.
3. It appears to me that it is very difficult to distinguish this case from the case of Mahadaji v. Joti. The only difference which can be seen in that case is this, that the mortgage did not contain a power of sale in default of the payment of principal. But it was held that the mortgage was a simple usufructuary mortgage carrying the right to have the property sold in default of payment of the principal sum of Rs. 500. On the question of interest Mr. Justice Candy said: 'The claim for interest is bad, for the plaintiff was entitled to possession in lieu of interest, and, if he never took the trouble to obtain possession, he lost his right to interest. The land was security for the principal'. That is exactly what has happened in this case. Plaintiff has lost his claim to interest as he never took the trouble to obtain possession. The mortgage bond is positive on that point. There is a personal covenant to pay back the mortgage amount within one year. There is also a power of sale if the mortgagor does not pay back the rupees without interest. It has been contended that the Transfer of Property Act, which was not in force when the decision of Mahadaji v. Joti was given, made an alteration in law giving a usufructuary mortgagee who does not take possession the right to charge interest. I can see nothing in Sections 58, 67 and 68 to which we have been referred which can enable a mortgagee to make a claim to interest-which is not given to him by the mortgage bond. In my opinion, therefore, the decree of the lower Court as against the 2nd defendant is perfectly correct.
4. The only difficulty I have in my mind is whether the plaintiff can claim, against 1st defendant, who has not appeared, damages for breach of what may be called a covenant to give possession. That would be a claim entirely of a different nature, it has not been made out in the plaint, and it would require entirely different considerations before it could be determined. No case has been cited to us in which such a claim has ever been put forward. In the case of a usufructuary mortgage, it is the business of, the mortgagee to get into possession before he advances the money, and if he does not get into possession, then he is entitled to take steps to get into possession. And for myself I should like to say that it would be a very bad precedent if we hold that a usufructuary mortgagee could lie by and not take the trouble to get into possession relying upon his being able afterwards to make a claim before the Court for damages, for not having been given possession.
5. The appeal must be dismissed with costs.
6. I agree that the appeal fails. It was argued that the plaintiff-appellant was entitled to recover interest by virtue of the provisions of Section 68 of the Transfer of Property Act. But that section can scarcely be applied in the present case inasmuch as the suit is one for sale of the mortgaged property falling under Section 67. As has been ruled in many cases Sections 67 and 68 provide entirely distinct remedies by a mortgagee, and though it might be possible to combine them in one suit, yet in the present case clearly no attempt has been made to do so. All that the plaintiff asks for in regard to a persona] remedy was to recover any deficit in the sale proceeds from the defendant. But quite apart from that it also seems to me clear that interest could not in this particular case be considered to be a part of 'the mortgage money, within the meaning of that expression as defined in Section 58. It is there said that the principal money and interest of which payment is secured for the time being are called the mortgage money, that is to say, interest to be part of mortgage money must be actually secured for the time being under the mortgage in question, and in the present case it is beyond all possible doubt that the interest is not secured by the terms of the mortgage. The only possible basis on which the plaintiff could claim interest is that of damages for breach of the covenant to deliver possession and in regard to such a claim I entirely concur with the learned Chief Justice.