1. This appeal is connected with first appeals No. 572 of 1930, No. 90 of 1931 and No. 109 of 1931. We shall dispose of all these appeals by means of this judgment. They all arise out of a suit instituted on 7th September 1929 by Mahant Ram Kishan Das in order to redeem a usufructuary mortgage. This transaction was evidenced by three documents, viz., a lease dated 29th October 1919, a kabuliyat dated 30th October 1919 and an agreement dated 24th November 1919. The lease was executed by Mahant Ram Kishan Das in favour of Badri Bisal, Ajodhya Prasad and Gauri Shankar. It was for a period of ten years from 1327-F to 1336-F. The lessees were to remain in possession of the property and collect profits and were to credit the amounts collected after deducting expenses towards a debt said to be due from Mahant Ram Kishan Das. The kabuliyat was merely a counterpart of this lease. The agreement recited that certain sums of money were due to Bhairon Prasad, Seth Ganpatji and the lessee Ajodhya Prasad. It was agreed that these debts should be paid off by the lessees. Bhairon Prasad was the brother of the lessee Badri Bisal and was with him a member of a joint Hindu family. The sum due to Seth Ganpatji who had nothing to do with the lessees was admittedly never-paid and it is not disputed before us that the three documents to which we have referred were jointly evidence of a usufructuary mortgage under the terms of which Badri Bisal, Bhairon Prasad, Ajodhya Prasad and Gauri Shankar were to take possession of certain villages, collect the profits, meet the expenses and sets aside the balance towards a debt of Rs. 14,000 due to them. Interest on the-debt was 9 per cent, per annum. After the suit for redemption was instituted, the learned Subordinate Judge, Mr. Kanhaiya Lal Nagar, passed a preliminary decree under Order 34, Rule 7, Civil P.C., on 15th November 1930. He directed that the mortgagees should furnish accounts for the years 1327-F to 1336-F and that the plaintiff should also furnish some accounts-and it should be worked out what amount if any, was still due from the plaintiff to the mortgagees.
2. We may mention at this stage that a number of defendants were impleaded besides the mortgagees or their representatives in interest. We may refer particularly to two of these, namely, Ram Sewak and Shree Jagannathji. We have already explained that the debt due to Seth Ganpatji was not paid off and the result was that he instituted a suit and obtained a decree. In execution of that decree part of the mortgaged property was put to sale and Ram Sewak purchased the village of Chakaundh and Shree Jagannathji the village of Ludhwara, These two men were impleaded as defendants. The plaintiff alleged that the sale of his property was not competent because he was protected by the provisions of the Bundelkhand Land Alienation Act. The learned Subordinate Judge, when he passed his preliminary decree, decided that he was so protected. This finding has led to the two appeals, No. 90 of 1931 by Ram Sewak and No. 109 of 1931, by Shree Jagannathji.
3. It has been admitted in the course of arguments that it was not necessary for the learned Subordinate Judge to decide the questions raised between these two appellants and the plaintiff. We understood that the mortgagees were still in. possession of the property; but even if that was not certain, the plaintiff was entitled to possession as against them if he redeemed the mortgage and it was unnecessary in the suit to raise the question whether he was entitled to possession as against others. It was agreed, therefore, that it was unnecessary to decide the questions raised in these two appeals, viz., No. 90 and No. 109 of 1931. We, therefore, record a finding that the questions between the plaintiff Mahant Ram Kishen Das and the defendants Ram Sewak and Shree Jagannathji are left undecided. We shall dismiss these two appeals and direct in the circumstances that the parties shall pay their own costs in both Courts.
4. The present appeal, No. 337 of 1932, is not directed against the preliminary decree passed by Mr. Kanhaiya Lal Nagar, but against a subsequent order passed by his successor Mr. Kidwai. According to the provisions of Clause 34, Rule 7, Civil P.C., and subsequent rules there are two methods open to a Court which is called upon to pass a decree in a suit for redemption. According to one of these methods the Court states in its preliminary decree what the amount is which is due on the date of that decree. That was not the method adopted in this case and we need not discuss it any further. The second method, that is, the method which was adopted is that the Court passes a preliminary decree saying that the plaintiff is entitled to redemption of the property provided he pays off the debt still due from him and directing that an account shall be made between the parties up to the date of the preliminary decree. When this method is adopted the account is made up at some subsequent date and it is then finally confirmed and countersigned by the Court which then declares what the amount is and directs the plaintiff to pay that amount (if any sum is due from him) on or before a certain date within six months of the date when the account is confirmed and countersigned. In the present case, the accounts were referred to commissioners who made a report. Upon their report there were certain objections and eventually the successor of Mr. Kanhaiya Lal Nagar, that is, Mr. Kidwai, passed an order on 15th August 1932. A decree was prepared in accordance with this order. This was clearly an order which had the effect of confirming and counter-signing the accounts between the parties. Appeal No. 337 of 1932 is against this order. The other appeal, No. 572 of 1930, is ah appeal by Govind Prasad, mortgagee, against the preliminary decree passed by Mr. Nagar. The point raised in this appeal is avery short one and we think we had better dispose of it before we proceed any further.
5. We have already mentioned the village of Ludhwara. At the time when the parties entered upon this usufructuary mortgage there was in existence a lease or theka executed by Mahant Ram Kishan Das in favour of Ram Dayal in respect of this village. Under the terms of the theka Ram Dayal was to be in possession of the village as a thekadar for 10 years from 1322-F to 1331-B1 and was to pay a sum of Rs. 100 per annum to Ram Kishan Das on account of profits, that is, as theka money. When the mortgagees were called upon to furnish accounts they protested that they had never been in possession of this village of Ludhwara because it had first been in the possession of Ram Dayal and subsequently had been sold and had gone into the possession of Shree Jagannathji. We do not think that the possession of Ram Dayal was such as to affect the rights of the mortgagees. Mr. Kanhaiya Lai Nagar in his. judgment which was the basis of the preliminary decree passed by him decided that the mortgagees were responsible for the profits of this village. The commissioner excluded the profits from their account, but Mr. Kidwai decided that the mortgagees should be liable for this sum of Rs. 100 a year. We are in agreement with this view. Ram Dayal was in the position of a tenant who had to pay a sum of Rs. 100 a year as rent to the proprietor. The mortgagees, after they came into possession in that capacity, were in the position of proprietors and it was their craty to collect the rent from Ram Dayal, and after the period of his theka had expired, to eject him in proper course of law if they did not wish the theka to continue. There is no evidence to satisfy us that the mortgagees were ever ousted by Shree Jagannathji or that Mahant Ram Kishan Das collected the theka money himself. In these circumstances, we think that they should have collected at least the thekadar's rent on account of the village of Ludhwara and we see no reason to differ from the finding of Mr. Kanhaiya Lal Nagar against which appeal No. 572 of 1930 is directed, that the accounts of Ludhwara should be included in the accounting between the parties. We shall therefore dismiss Appeal No. 572 of 1930 with costs.
6. This leaves us with Appeal No. 337 of 1932 which is concerned with the items of accounting between the parties. The commissioners examined the books of the mortgagees and prepared an account according to which the plaintiff was ultimately liable to pay the mortgagees a sum of about Rs. 20,000 after the mortgagees had been in possession of his property for a period of 10 years. The first objection taken by the plaintiff to this account is that it is on the basis of actual collections. He maintains that the books of the mortgagees are not reliable and that they should have been made to account on the basis of gross rental. We are satisfied that the collections are not such that it could be assumed that the mortgagees have concealed any sums which they did actually collect; nor that the collections are so much less than the demand that we can say that the mortgagees were negligent in allowing sums due to remain uncollected till the claim of the zamindars was barred by limitation. Nothing has been placed before us upon which we can base a finding that the books of the mortgagees are unreliable. In these circumstances we feel that we must agree with the Commissioners and base the accounts on the collections recorded in the books of the mortgagees. We make an exception only on account of the village of Ludhwara for reasons which we have already explained. The commissioners had before them a claim by plaintiff that the mortgagees had acquired some sums of money every year by the sale of grass or grazing rights. There is the evidence of some witnesses that it has been the practice in the village for the proprietor to lease out the right to take grass and that the lessee in his turn sells the right to others. Ram Bharosey has deposed that he was the karinda of Badri Bisal and that some 150 or 175 bighas of land were let out for grazing purposes at Re. 1 or Rs. 1/4 per bigha. Ram Prasad, another witness has deposed that Eaghu-raj used 'to take on Rs. 150 grazing land in theka' and that the villagers used to take land from him according to their requirements. There is other evidence of the same kind including the statement of Raghuraj himself. The Commissioners found that it was impossible to say exactly how much income there was from this grazing land and other miscellaneous sources of profit, but they decided that it would be safe for them to assume that a sum of Rs. 150 a year was acquired in this way. Mr. Kidwai decided that this sum should be deducted from the accounts.
7. We are in agreement with the Commissioners that there must have been a certain amount of profit under this head and that a sum of Rs. 150 a year is a safe estimate. We therefore decide that this item should be included in the accounts. The Commissioners on the other side allowed certain items on account of expenses which we think cannot be allowed. There was a sum of Rs. 351-11-4 on account of customary village expenses. We think that the Commissioners made an obvious mistake about this item. There was a statement showing the expenses alleged to have been incurred under this head by Mahant Ram Kishen Das when he was in possession of the village and continued by the mortgagees when they were in possession. This statement was put in by Raghunath Singh, the agent of the mortgagees. The Commissioners have relied upon the fact that Mahant Ram Kishan Das himself admitted that he had incurred an expenditure of Rs. 171-8-2 on account of village expenses. They have overlooked the fact that this sum of Rs. 171-8-2 is really the same as the sum of Rs. 175-9-0 which was alleged by Raghunath Singh to be the expenses of Mahant Ram Kishan Das. They have added the two amounts together and have consequently counted them twice over. We therefore think that the only amount that can possibly be allowed on account of village expenses is Rs. 175-9-0. We are prepared to accept the statement of Raghunath Singh that these were the actual expenses paid by the mortgagees. Then the Commissioners have included a sum every year on account of Court expanses and servants' pay. We may mention that it was part of the agreement between the parties that the mortgagees might deduct 10 per cent, of the amount collected by them every year as commission. In our opinion, on examination of the agreement, it must be held that this commission was to be deducted in order that the mortgagees might meet the costs of collecting the profits. We think that the mortgagees intended to pay their servants out of this 10 per cent, commission which they were allowed to deduct.
8. It has been said that there are entries in the wajib-ul-arz that certain amounts are paid by the zamindar to certain servants, but we do not think that those entries affect the issue because they are intended only to affect the distribution of profits between co-sharers at any time in possession as proprietors and do not affect the relations between the mortgagor and the mortgagees. It is said that certain sums were spent each year in instituting suits and obtaining decrees against tenants and those sums are included in this item of expenses by the Commissioners. We find that the alleged expenses are very much greater than the amounts which the mortgagees admit to have collected by the execution of decrees. We think that the institution of suits was part of the machinery for the collection of the profits and that the commission should have covered any expenses over and above those which the mortgagees were able to charge against the judgment, debtors. We are therefore not prepared to allow anything to the mortgagees on account of Court expenses and servants pay. It has been admitted that the plaintiff realised a sum of about Rs. 2,000 in the year 1330-F. The Commissioners have included this item in the accounts as a deduction to be made from the amounts collected by the mortgagees. It is obvious that any sum collected by the plaintiff cannot have any effect upon the sums collected by the mortgagees for which they are liable to him. We have examined the record to see whether this sum of Rs. 2,000 was included by the Commissioners in the actual realisations alleged to have been made in that year, but we find that the sum admitted by the mortgagees themselves to have been collected by them is not less than the sum which the Commissioners have included in the actual realisation. This sum of Rs. 2,000 must therefore be excluded from the accounts.
9. We have prepared an account ourselves. We have accepted the Commissioners' figures of actual realisations. It has been urged before us that the sums admittedly collected by the mortgagees in certain years are greater than those shown by the Commissioners as having been realised. One of the respondents has supplied us with a statement of account but it is not a statement which we can regard as evidence in the suit. If it had shown as a whole that the amount collected by the mortgagees was greater than the amount debited against them by the Commissioners we might have accepted it, but it shows an amount which is less than that shown by the Commissioners. The Commissioners had the books before them and we have not been supplied with any printed or typed evidence from which we can say that the figures entered in the account by the Commissioners under this head are incorrect. To the amount which the Commissioners have shown in their accounts we have added a sum of Rs. 100 a year for the village of Ludhwara. We have deducted from the realisation a sum of Rs. 175-9-0 a year on account of village expenses. We have also deducted the revenue and cesses and the commission allowed under the terms of the agreement. As we have already explained, we have allowed nothing on account of Court expenses and servants' pay. We showed the statement of account to counsel for the parties and it has been accepted by learned Counsel for the mortgagees. There were some objections on behalf of the mortgagor. One was that interest should have been calculated every six months. This certainly was the agreement and it might have resulted in the reduction of the total amount due because of the reduction of the principal at more frequent intervals; but we have no figures before us which would enable us to say what amount had been calculated on account of profits every six months. We can only say what amount was calculated every year. We therefore find it necessary to calculate the interest yearly.
10. Another objection was that the amount of principal according to our statement of account was reduced to Rs. 10,880-1-0 in the year 1339-F, whereas the amount due to the mortgagees increased in the next year to Rs. 11,320-12-4 because the amount of profits was less than the amount of interest. We calculated interest for the year 1331-F on the sum of Rupees 11,320-12-4. The objection was taken that it should have been calculated on the sum of Rs. 10,880-1-0 because there was no covenant for the payment of the compound interest. We think there is force in this objection. It has been said in the objection that the total amount due will be reduced by Rs. 67-5-3 if this adjustment is made and we think that it should be made. The third point was that there was a clerical mistake in the printed chart which was the basis of our original account and that the amount of cesses in the year 1329-F should have been Rupees 320-8-6 instead of Rs. 340-8-6. We have added together the amounts of cesses for all the years and we find that there must have been a clerical mistake in the chart because the total is consistent with the fact that the cesses for 1329-F were Rs. 320-8-6 and not consistent with the fact that the cesses were Rs. 340-8-6. It has been said in the objection that an adjustment of this clerical mistake will make a difference in the total of a sum of Rs. 32-9-6. The total adjustment will then be Rs. 99-14-9 up to 30th June 1929. Interest on this sum is approximately Rs. 12 up to 31st October 1930. We have therefore deducted a sum of Rs. 112-5-10 from the original sum of Rs. 6,413-5-10 which we had originally found to be due. The amount due then from the mortgagor to the mortgagees at the end of the year 1336-F is Rs. 6,301. We direct that the chart which we have prepared shall be considered as part of this judgment.
11. The mortgagor made a claim that his zilla had been allowed to fall into disrepair and the Commissioners found that he was entitled to a sum of Rs. 800 to enable him to put it into repair again. This item was accepted by Mr. Kidwai and it has not been shown to us that the sum should not have been allowed. We have therefore deducted this sum. We may mention that some other points were raised in arguments. On behalf of the plaintiff it was said for instance that the mortgagees had not accounted for income which accrued to them from certain sir lands. We find that this point was apparently not raised before the Commissioners nor pressed in the Court of Mr. Kidwai. The latter has discussed certain objections which were taken before him and has specifically stated that no other points were pressed. We find also that there is no material on the printed record or on the typed papers with which we have been supplied in accordance with which we can come to any conclusion upon this point. In these circumstances we cannot accept the plain, tiff's contention. The plaintiff has also drawn our attention to the fact that the mortgagees have presented certain accounts in which they admitted, at any rate in the year 1327-F, that they had collected a larger amount than that which they subsequently stated had been collected by them on behalf of the mortgagor. The mortgagees explained this by saying that in their accounts they had a ledger for the mortgaged property and included in that certain sums which they received on account of irrigation dues paid by them on behalf of tenants and on account of revenue paid by them on behalf of other co-sharers in the villages. They have deducted these amounts from the total realizations shown in their ledger because these amounts had nothing to do with the mortgagor. We accept the explanation given by the mortgagees upon this point. We have not gone into any question which was not raised before Mr. Kidwai and discussed by him. Under the provisions of Order 34, Rule 7 the account should have been taken up to the date of the preliminary decree. We find from the plaint that the plaintiff claimed possession of the property, but at the same time he admitted that he had begun to collect rent from the tenants in the year 1337-F. We presume that this was the reason why the learned Subordinate Judge directed that accounts should be taken from the mortgagees up to the end of the year 1336-F. It appears that at some date after the preliminary decree was passed the mahant was prevented from collecting rents but we are not at present concerned with that matter. On the pleadings it seems to us that the learned Subordinate Judge was right as there was nothing to show that the mortgagees would be liable for any sums collected by them after the year 1336-F. We think however, that we should allow interest at the contractual rate up to the end of October 1930, that is, up to the end of the last full month before the preliminary decree was passed. Including this sum of interest the amount due from the mortgagor to the mortgagees is Rs. 6,301. We allow 9 per cent, on this amount up to 15th August 1932 when Mr. Kidwai passed his order; the amount now found due should have been found due and the plaintiff should have been in a position to pay that amount with interest within a period of six months. After 15th January 1933 up to the date of actual payment interest will be allowed at the rate of 6 per cent, per annum. We consider that the parties should bear their own costs in both Courts. The mortgagees denied the existence of a mortgage which is not now disputed and for this reason are not entitled to their costs.
12. The result is that Appeals Nos. 90 of 1931 and 109 of 1931 are dismissed and the parties will bear their own costs in both Courts. Appeal No. 572 of 1930 is dismissed with costs. The result of Appeal No. 337 of 1932 is that the order of Mr. Kidwai dated 15th August 1932 is set aside and we declare that a sum of Rs. 6,301 was due from the plaintiff mortgagor to the defendants mortgagees on 31st October 1930 and that the mortgagor will be entitled to a decree for redemption if he pays this sum on or before 1st March 1937 with interest at 9 per cent, per annum up to 15th January 1933 and thereafter at 6 per cent, per annum. The mortgagor shall make no payment to the mortgagees on account of costs in the Court below. The plaintiff-appellant shall be entitled to half his costs in appeal in this Court from the mortgagees. The respondents will bear their own costs. It has been urged that we should allow the costs of Seth Ganpatji on the ground that he was unnecessarily impleaded in the appeal, but as this party was included in the array of parties in the Court below we think it was not unreasonable that he should have been included among the respondents in the appeal to complete the array of parties. He has not appealed against the order for costs in that Court and he must have known that it was not really necessary for him to appear and incur costs in this Court.