1. On 16th April 1919, the appellant Gordhan Lal, and one Bal Mukand made a usufructuary mortgage in favour of one Balwant Rao. The mortgage money was Rs. 26,000 and the subject of the mortgage was the right to receive the revenue of a certain village. Defendant-respondent 1, an idol, is now the representative of the mortgagee. It is a common ground that the mortgagee was put in possession. By para. 11 of the mortgage-deed--a translation of that paragraph is given in the judgment of the trial Court--it was provided that the mortgagee would be entitled to interest on the mortgage money at the rate of six annas per cent. per mensem and that the annual interest on the sum of Rs. 26,000 calculated at that rate would come to Rs. 1170. It was further stated that it had been agreed upon that the mortgagee would be entitled to a sum of Rs. 121 per annum on account of collection charges. The total of these two sums, viz., Rs. 1291, was the amount to which the mortgagee was entitled every year. It was further laid down in this paragraph that 'at present the income derived from the land revenue is Rs. 1390' and that 'thus, after deducting the interest and the collection charges, it is hoped that there will be a Balance of Rs. 99 payable to the mortgagors.' It was then laid down, that
the mortgagors would take the surplus amount every year from the mortgagees after granting receipts, or would have the same credited towards the mortgage money.
2. The quotation just given is from the translation contained in the judgment of the trial Court. Having, however, read the original, I find that the passage in question should be translated thus :
Accordingly, (we) shall continue to realise the surplus amount aforesaid year after year from the mortgagee, or shall continue to have it credited in payment of the mortgage money.
3. In para. 13 of the deed it was laid down that the mortgagors would pay the mortgage money 'in 12 years.' It was further stated in that paragraph that if the mortgagors were able to pay the entire mortgage money in one lump sum at any time within the said period of 12 years, the mortgagee would be bound to accept the same without regard to the period fixed. In the year 1932 the present appellant brought a suit (NO. 419 of 1932) against defendant-respondent 1 for rendition of accounts and for recovery of what was found due. That suit was ultimately decreed by this Court on 12th March 1937 (S. A. No. 369 of 1935). It will be noted that the 12 years expired on 16th April 1931. The suit just mentioned related partly to a period falling before and partly to a period falling after 16th April 1931. One of the pleas raised on behalf of the mortgagee was that a suit for accounts by a mortgagor against a mortgagee could not be maintained unless the mortgagor also sue for redemption. Upon this plea being raised, the plaintiff abandoned that part of his claim which related to the period falling after 16th April 1931 and confined the claim to the period ending with 16th April 1931. The result was that the claim was confined to a period during which the mortgagors were not entitled to redeem. That being so, the learned Judge of this Court, who decided the second appeal mentioned above, held that the argument put forward on behalf of the mortgagee no longer arose, as it could not be argued that there was any bar to the right of the plaintiff to maintain a suit for accounts against the mortgagee in respect of any period during which the plaintiff, mortgagor, was not entitled to redeem. The suit, as already stated, was decreed.
4. On 1st February 1938 the appellant instituted the suit giving rise to this appeal. He prayed for rendition of accounts for a period commencing from 17th April 1931 and ending with 1st February 1938, when the suit was instituted. The suit as brought was in respect of the right to rendition of accounts alleged to belong to both the mortgagors. In appeal, however, the claim is confined to the alleged half share of the appellant alone. The only plea of the defendant with which I am concerned in this appeal is the plea that a suit for accounts, without a prayer for redemption, is not maintainable. There were certain other defences which it is not necessary to mention. Both the Courts below have accepted the defendant's plea mentioned above and have dismissed the suit. The Courts below have observed that, the period of twelve years mentioned in para. 13 of the mortgage deed having expired, there is now no bar to a suit for redemption being brought. They have then held that, there being nothing to prevent the mortgagor from suing for redemption, a suit for accounts only, without a prayer for redemption, was not maintainable.
5. The first contention raised by learned Counsel for the plaintiff-appellant is that the Courts below have misread para. 13 of the deed in that they have read only half of it and that a perusal of the whole paragragh shows that there really was no term fixed. It is not necessary to express any opinion as to the correctness or otherwise of this contention, for, whether a term of twelve years was fixed or not, it is common ground that on 1st February 1938, when the present suit was instituted, there was no bar to suit for redemption being filed. That being so, the only question that arises for consideration is whether the plea of the mortgagee, defendant, that the suit, praying as it did merely for accounts, did not lie, is a good plea. Learned Counsel for the plaintiff-appellant has contended that the decision of the Courts below is wrong and has cited the eases in Nathan Prasad v. Kali Prasad ('26) 13 A. I. R. 1926 Pat. 77, Muhammad Sadiq v. Harakh Narain ('36) 23 A.I.R. 1936 Pat. 583 and Abdul Mannan Mian v. Kalai Khan ('36) 40 C. W. N. 343. In none of these cases, however, the question which I have to consider arose. They are, in my opinion, of no assistance.
6. Learned Counsel for the defendant-respondent has cited Hari v. Lakshman ('81) 5 Bom. 614 and Laluchand v. Girjappa ('96) 20 Bom. 469. The facts in the first of these cases were these. The plaintiffs, who were agriculturists in the Deccan, were mortgagors of certain immovable property and had instituted the suit against their mortgagees in possession, praying simply for an account. The subordinate Judge, evidently being of the opinion that the suit was not maintainable unless the plaintiffs also prayed for redemption, called upon the plaintiffs to pay the court-fee requisite for a redemption suit. The plaintiffs were unable to pay the court-fee. The result was that the Subordinate Judge rejected the plaint. Thereupon the Special Judge of the Decean referred to the High Court the question whether a mortgagor might bring a suit under Section 16, Dekkhan Agriculturists' Relief Act of 1879, for an account, and no more. Upon this reference, the learned Judges made these observations:
Ordinarily a suit for an account upon a mortgage cannot be maintained by a mortgagor unless he asks also for redemption. Sections 42 and 43, Civil P. C., are opposed to the maintenance of such an action : inasmuch as it would not afford a ground for a final decision, and would not include the whole of the plaintiff's claim in respect of the cause of action. It remains to be considered whether the Dekkhan Agriculturists' Belief Act (17 of 1879) has, contrary to the ordinary law, conferred upon the agriculturists to whom that Act is applicable, the right to bring against their mortgagees a mere action to account.
7. The question was answered in the negative. This led to an amendment of the law and Act 22 of 1882 was passed. By the amendment it was made clear that an agriculturist-mortgagor, to whom the Dekkhan Agriculturists' Relief Act applied, could sue for an account, without at the same time asking for redemption. It was, therefore, held in Laluchand v. Girjappa ('96) 20 Bom. 469 mentioned above, which was decided in 1895, that such an action would not bar a subsequent suit for redemption. It was observed in the course of the judgment that:
before the amendment, the mortgagor-plaintiff was not entitled, under the general law, to sue for accounts except as ancillary to the relief implied in a redemption proceeding (pages 473-4 of the report).
8. It is stated by Sir Rashbehary Ghose in vol. 1 of his treatise, the Law of Mortgage in India, at p. 593 of Edn. 5, that
as a rule a mortgagee can be called upon to account only when the mortgagor seeks to redeem, except where such redemption has become impossible.
9. It seems to me that the principle on which a mortgagor, entitled to sue for redemption, is held to be not entitled to sue merely for accounts, is perfectly clear. As was pointed out by the learned Chief Justice in Hari v. Lakshman ('81) 5 Bom. 614 at page 620, it would not be right to give to mortgagors the power to harass their mortgagees in possession with suits de anno in annum to ascertain what those mortgagees annually received from the lands over and above their necessary expenses in relation to those lands, such suits being brought without any present intention on the part of the mortgagors to pay to the mortgagees the balance due upon the mortgage, and without liability to a decree therein either for foreclosure or sale. If the suit which has given rise to this appeal is held to be maintainable, there is nothing to prevent the appellant from refraining from suing for redemption at least for another 37, and possibly 49 years and bringing actions against the mortgagee merely for accounts every year.
10. I would like to emphasise that this is not an action for the recovery of a definite ascertained sum of money. As already stated, the language of para. 11 of the mortgage deed itself shows that it was only expected that the surplus would amount to Rs. 99. The relief prayed for in the plaint is for rendition of accounts. Learned Counsel for the appellant has argued that the suit is for the recovery of a definite and ascertained sum of money. In view however of the clear language of the plaint I am unable to accept the argument. My conclusion is that the decision at which the Courts below arrived is correct. The appeal is accordingly dismissed with costs. Leave to appeal under the Letters Patent is granted.