1. Mahbub Bakhsh and Mt. Azizan executed a deed of mortgage on 18th June 1927, in favour of Nurul Hasan in order to secure the payment of a debt of Rupees 2500. Under the terms of the deed, Nurul Hasan was to remain in possession of the property for a period of 10 years and after that period was entitled to recover the amount due to him. The deed is not in very clear terms, but there can be no doubt that the intention was that Nurul Hasan should enjoy the profits of the property in lieu of interest for the period during which he was to be in possession. Nurul Hasan instituted the suit which has given rise to this appeal at the beginning of the year 1988 in order to recover the principal amount secured by the mortgage together with a sum of Rs. 52 which he said that he had expended on repairs and a sum of Rs. 508 which he claimed as the profits which would have accrued to him from the rent of a part of the property which never came into his possession. The sum of Rs. 2500 was paid into Court and the dispute was only about the other two sums. The learned Judge of the lower appellate Court has dismissed the suit for their recovery. We are told in second appeal that the claim for Rs. 52 is no longer pressed because it appears from the terms of the deed of mortgage that Nurul Hasan was not entitled to spend any money on repairs without giving a registered notice to the mortgagors which he never did. We are concerned, therefore, only with the sum claimed by way of usufruct or profits. It is admitted that the mortgagee did not obtain possession of part of the mortgaged property, that is, a room or apartment on the first floor known as a balakhana. He claimed the sum of Rs. 508 upon the ground that he could have recovered a sum of Rs. 4 a month by way of rent if this property had been delivered to him. Both the Courts below have found that the amount of rent would have been Rs. 3 a month. The learned Munsif gave a decree for Rs. 381 at that 'rate but the learned Judge of the Court below, as I have already stated, disallowed the claim. His point was that this sum could not be described as interest on the principal sum secured and that it was not a charge upon the property as the plaintiff claimed it to be.
2. Learned Counsel for the appellant argues that it was the intention of the parties that the mortgagors should pay interest upon the loan in the sense that the mortgagee should get some benefit in return for allowing the mortgagors to have use of his money for this period of 10 years and the agreement that the mortgagee should remain in. possession and should enjoy the usufruct was merely a convenient arrangement for the payment of interest. His contention is that the mortgagors were liable to pay as interest a reasonable amount by way of profits if they failed to deliver a part of the mortgaged property so that the mortgagee could enjoy the profits from it. He has referred us to a number of decisions. The first is the case in Raja, Oodit Purkash Singh v. Henry Martindell (1846-51) 4 M.I.A. 444. That was a case in which interest was allowed on a loan secured by a usufructuary mortgage but there was no objection to the payment of interest and consequently this is not a very strong authority in the appellant's favour. The next is the case in Sita Nath Ghose v. Thakurdas Chakravarty ('19) 6 A.I.R. 1919 Cal. 46 where the learned Judges allowed interest upon the ground that the deed of mortgage allowed for payment of interest by reception of profits. The third is the case in Linga Reddi v. Sama Rau ('94) 17 Mad. 469 but in that case there was a definite agreement that interest was to be charged on the loan at the rate of 10 per cent., and that the usufruct of the property was to go to the mortgagee in lieu of interest. There was a reference in this case to Cradock v. The Scottish Provident Institution (1894) 69 L.T. (n.s.) 382 but the learned Judge who decided the latter case merely said that a charge could be created if that was the intention of the parties and that it was not necessary to use any specific words to create a charge. Then there are two cases in Gurusami Thevan v. Ganapathi Chetti : AIR1932Mad173 and Subramania Aiyar v. Panohanada Odyar : AIR1932Mad175 which followed the decisions in 17 Mad. 4698 and 46 Cal. 448. Learned Counsel has also referred us to the case in Mathura Das v. Raja Narindar Bahadur ('97) 19 All. 39 but that was a case of a simple mortgage which was to be repaid after a period of one year with interest. The learned Judges of this Court held that there was no agreement to pay interest after the expiry of the period of one year, but their Lordships of the Privy Council held that it must have been the intention of the parties that interest should be paid till such time as the mortgage was redeemed.
3. On the other side we have been referred to the case in Partab Bahadur Singh v. Gajadhar Bakhsh Singh ('02) 24 All. 521. That was a case where the mortgagee obtained possession but was ejected from part of the mortgaged property by a stranger. He remained in possession thereafter for a period of 30 years and eventually his successor claimed interest on the loan from the date of his ejectment. Their Lordships of the Privy Council said that the mortgagee had acquiesced in the situation and that interest could not be allowed. It does not seem to me that this case is very much in point because I think their Lordships merely meant that the mortgagee had considered for that long period that he was sufficiently remunerated from the profits of the property which remained in his possession. There are, however, a long series of decisions of this Court which suggest that the mortgagee at the time of redemption cannot claim by way of interest the profits of property which has not been delivered to him. There are the cases in Dulli v. Bahadur (75) 7 N.W.P.H.C.R. 57, Rameshar Singh v. Kanahia Sahu ('81) 3 All. 653 (F.B.), Allah Baksh v. Sada Sukh ('86) 8 All. 182, Khuda Bakhsh v. Alim-un-nissa ('05) 27 All. 313 and also a series of cases from Lucknow, namely, Bhawani Prasad Singh v. Sahib Din Lal A.I.R. 1927 Oudh 594, Sheo Shankar Pande v. Raj Jas Lal ('27) 14 A.I.R. 1927 Oudh 594, Dubri v. Ram Naresh Singh ('26) 13 A.I.R. 1926 Oudh 224 and Mt. Pranpati v. Mt. Hasiban ('32) 19 A.I.R. 1932 Oudh 57. It is true that in a recent case, Dal Singh v. Mt. Sunder Kunwar ('44) 31 A.I.R. 1944 Oudh 208 an Hon'ble Judge took a contrary view, but the bulk of authority in this province seems to be in favour of the view that profits should not be allowed in these circumstances in lieu of interest as a charge upon the property at the time of redemption.
4. Speaking for myself, I should say that the question whether the profits should be allowed should depend in each case mainly upon the provisions of the deed itself, but I would not ignore the trend of opinion that the parties do not normally intend that the profits of property not delivered into the possession of the mortgagee should be paid as interest and as a charge upon property at the time of redemption. I may add that it seems to me that it is rather straining the meaning of the term 'interest' to say that it includes profits from property which is placed at the disposal ' of the mortgagee. One can conceive of an agreement other than mortgage by which in return for a loan some person allows another to make use say of a motor car. I think it would be going rather too far to say that the* pecuniary equivalent of the value of the use of the motor car could be treated as interest. In the present case no rate of interest is fixed in the deed and there was a mere agreement that a certain mortgaged property should remain in the possession of the mortgagee. He was to get the use and benefit of it but was himself responsible for any variations in the profits which might accrue to him. On the whole I am not satisfied that the decision of the learned Judge of the Court below on this question of interest was wrong.
5. The question has arisen whether we should allow the appellant damages for a period of six years for breach of the covenant to deli-ver possession or mesne profits for a period of three years on the ground that the mortgagors were in possession of the property to which he and not they were entitled. In so far as damages for breach of the covenant to deliver possession are concerned, I think that the breach occurred once and for all at the time when the mortgagee was first entitled to recover possession of the property, that is, at the time when the deed of mortgage was executed and that the claim would be barred, but both in respect of this claim for damages and the claim for mesne profits I think it is a sufficient answer to the appellant's argument that he never claimed damages or mesne profits when he instituted his suit or when the case was argued in the lower appellate Court. I do not think that we should at this stage, come to a decision against the respondents on the basis of a case which they were never required to meet. In my judgment the appeal should be dismissed and I would dismiss it with costs.
6. I agree.
7. I agree.
8. By the Court.-We dismiss this appeal with costs.