Tudball and Sulaiman, JJ.
1. This is a defendant's appeal arising out of a mortgage suit. The mortgaged property is a residential house in Allahabad. The original owner, on the 10th of May, 1907, mortgaged it to Dr. Banerji for the sum of Rs. 7,000. On the 1st of February, 1911, he mortgaged it for the sum of Rs. 1,000 to one Badri Prasad. On the 16th of February, 1911, he mortgaged it for the sum of Rs. 6,000 to Krishna Chandra Mukerji. On the 19th of June, 1911, he mortgaged it for the sum of Rs. 3,000 to Ganga Prasad. All four mortgages were simple. The present appellant before us purchased the property from the original mortgagor on the 20th of September, 1911 for the sum of Rs. 14,000. The vendor loft in the appellant's hands Rs. 8,500 to pay off the first mortgage; Rs. l,100 to pay off the second mortgage; Rs. 1,500 towards payment of the third mortgage, and Rs. 500 towards payment of the fourth mortgage. The appellant paid off the first two mortgages. That of Dr. Banerji was paid off on the 9th of June, 1912, and that of Badri Prasad on the 26th of November, 1911. The total sum actually paid for the first two mortgages was Rs. 9,091-11-6. The fourth mortgagee Ganga Prasad brought a suit on the basis of his mortgage and he got a decree for recovery of his money conditional on his paying off the prior mortgages. He apparently thought the property was not of sufficient value, so he did not prosecute his case any further and the fourth mortgage has thus died out. In that suit the present appellant took his stand upon the first two mortgages which he had paid off, and claimed to be redeemed before the property could be sold. Then the suit was instituted, out of which the present appeal has arisen, by the third mortgagee. The appellant again took his stand on the first two mortgages and claimed that he was entitled to be paid off before the property could be sold. The court below has held in his favour on issue No. 3 in the judgment, but a question of interest arose. The appellant, the purchaser from the original mortgagor, of course, has been in possession of the property all along, still he claimed that interest on the first two mortgages should be paid to him at least up to the date of suit. The court below remarked as follows;--'I do not think he should get interest up to the date of suit, for he has been in possession since his purchase and so enjoyed the usufruct of the property. He cannot have both the usufruct and the interest,'
2. It held that the sum payable to the appellant was Rs. 9,091-11-6. This included interest up to the dates of payment of the prior mortgages, that is, the 26th of November, 1911, and the 9th of June, 1912.
3. The appellant has come here on appeal and it is urged on his behalf that he is in justice and equity entitled to have interest on his money paid on the above two dates, not only up to those date, but up to the date of suit. The point is one which is covered by at least three decisions of this Court. The earliest is that of Sri Ram v. Kesri Mai (1903) I.L.R. 26 All. 185, where the point was actually raked and discussed and decided. There, a subsequent mortgagee was seeking to bring to sale the property mortgaged to him. There were defendants to the suit who had purchased the property and had paid off the prior mortgages. It was held that the plaintiff was not entitled to an order absolute for sale without paying not merely the amount which the defendants had paid in respect of the prior mortgages but the full amount due on such mortgages. It was further held that, where such defendants had obtained possession of the mortgaged property, having had the usufruct, they were not entitled to interest after the date of such possession. We quote the. following from this judgment:
We, however, think that since the appellants have from the date of their purchase been in possession of the mortgaged property, it must be deemed that the usufruct was appropriated as an equivalent for interest upon the money paid by them. Every person who purchases property for a certain value is presumed to pay such value as would yield to him a sufficient return for the money invested by him in the property. Therefore when the appellants purchased the mortgaged property, and as consideration thereof discharged the prior mortgages, it is reasonable to assume that since the date of the payment of the consideration they received as an equivalent for the interest of the money paid the usufruct of the property. This inference is strengthened by the fact that in their defence in the suit the appellants did not in distinct terms claim interest upon the money which they had paid in liquidation of the prior mortgages. Supposing the mortgage of Makhan Lal, instead of stipulating for cash payment by way of interest, had provided that he should enjoy the usufruct as the equivalent of interest, then the moment the mortgage was discharged by payment the purchaser would himself enter into usufructuary possession. Could it be contended then in answer to a suit for sale by a puisne incumbrancer that the purchaser could use as a shield not only the sum he had paid to discharge the mortgage but also the value of the usufruct which he had appropriated after such discharge? In other words, he would be entitled to enjoy the usufruct and also obtain from the later mortgagee the value of it. The proposition seems to be founded upon no legal or equitable consideration.
4. The judgment referred to two cases, one of Dip Narain Singh v. Hira Singh (1897) 1. L.R. 19 All. 527 and the other, The Delhi and London Bank Limited v. Bhikari Das (1901) I.L.R. 24 All. 185. The point was not, really decided in either of these two cases, but they were both instances in which interest was not allowed for any period subsequent to the date of possession of the purchaser. This same rule was adopted in the case of Mati-ullah Khan v. Banwari Lal (1909) I.L.R. 32 All. 138. It will be noticed that two issues were remitted by this Court for decision by the court below. One was, 'what amount, if any, is due on each of the mortgages held by Bhola Nath, dated respectively the 18th of August, 1894, 11th of December, 1894, and the 14th of September, 1895?' The decision of this Court on the return of the issue has not been published, but we have before us the record of the case and we quote from that judgment also to show that the same rule was adopted as in the case reported in I.L.R. 26 Allahabad, The judgment runs as follows:
We accordingly referred to the court below issues as to the amount due on foot of these earlier mortgages and as to the bar of limitation. The court has found that none of these mortgages were time-barred and has estimated the amount due with interest on foot of them, in the alternative, up to the 13th of January, 1910, and the 23rd of April, 1910, Objection has been taken to these findings on the ground that interest ought only to have been calculated up to the date when the mortgages were paid off, namely, the 28th of September, 1901. We are of opinion that interest is chargeable up to the last mentioned date and not beyond. An account has accordingly been prepared, which has been accepted by the parties, and by it is found that the sum due on foot of these mortgages with interest up to the 28th of September, 1901, amounts to Rs. 3,122-5-6.
5. In First Appeal No. 376 of 1911 the same point arose and the decision in the case of Sri Ram v. Kesri Mal (1903) I.L.R. 26 All. 185 was again followed. In our opinion this case is on all fours with that of Sri Ram v. Kesri Mal (1903) I.L.R. 26 All. 185, We think the proper and the simplest method of settling the equities between the parties is to hold that the prior mortgagee having had possession of the property is not entitled to interest after the date of possession, and we hold accordingly.
6. We have not been able to find any decision which conflicts in any way with the above-mentioned three cases. The facts in the present case are similar to those in the cases mentioned above and we can no see reason to differ from the rule adopted therein. According to that rule the appellant was entitled be interest up to the date on which he paid off the prior mortgages and the lower court has allowed him that interest.
7. It must be noticed that the respondents have not challenged the defendant's right to stand upon his prior mortgages in spite of the fact that money was left with the appellant for payment of all the four mortgages. The appeal fails and is dismissed with costs.