1. This appeal arises out of a suit for redemption of property, the subject of a usufructuary mortgage, dated the 25th of August 1888. The plaintiffs, 2nd party, who are the mortgagors, sold their interest in the equity of redemption to the plaintiff No. 1 on the 23rd June 1905, and the plaintiff No. 1 deposited the mortgage debt, Rs. 1,800, in Court under Section 83, Act IV of 1882, to the account of the defendant, but the defendant refused to accept the same. The properties mortgaged are 12 bighas of sir in Badhia and fractional shares in 5 villages, viz., Tirhabir and 4 others. The defendant obtained possession of the sir and of the share of Tirhabir 011 the execution of the mortgage, but he did not get possession of the shares in the other villages till April 1893, i.e., 4 years and 7 months after the date of the mortgage.
2. The principal ground upon which the defendant refused to accept the amount deposited in Court was that the mortgage deed contained a provision for the payment of interest at the rate of 2 per cent. per mensem if possession of the mortgaged property were not delivered to the mortgagee; and that he did not get possession of portions of the mortgaged property until the month of April 1893, and is, therefore, entitled to interest on the mortgage debt. The Court of first instance decreed the plaintiff's claim and the decision of that Court was affirmed by the lower appellate Court.
3. Two grounds of appeal have been pressed before us; the first is that inasmuch as the lower appellate Court found that the defendant was kept out of possession of part of the mortgaged property for a period of 4 years and 7 months, it should have decreed portion at least of the interest claimed for that period. The stipulation in the deed provides for payment of interest if '' there is any defect (nuqs) in the mortgaged property, or any manner of defect arise in the mortgagee's possession.' It is not quite clear what these words mean, but we are disposed to think that they refer to a defect in the title of the mortgagor whereby the mortgagees should fail to get possession or having got possession should lose such possession. However this be, the mortgagees look possession of part of the mortgaged properly and raised no objection. They allowed the mortgagors to retain possession of the residue of it and made no claim in respect of the stipulation in the mortgage deed to which we have referred. We are inclined to think that the lower appellate Court was right in the reason which it suggested for this. He observes that 'apparently the land revenue assessment is comparatively high and neither party was very anxious to pay it.'
4. The principle underlying the decision in Partab Bahadur Singh v. Gajadhar Bakksh Singh 29 I.A. 148 : 21 A. 521 (P.C.) and in the case of Khuda Baksh v. Alim-un-nissa 27 A. 313 : 1904 A.W.N. 273 seem to us to be applicable to this case. The mortgagee's claim for interest is barred by his acquiescence. On this ground the appeal in our opinion fails. The only other contention raised was that the lower appellate Court, in an order of the 9th November, 1906 by which an issue was referred for determination to the Court of the first instance, stated that the mortgagee was entitled to interest for the period of his dispossession. It is contended that having expressed this view the learned Judge was not justified afterwards in dismissing the mortgagee's claim for interest. We cannot accede to this contention, bat assuming that the lower appellate Court was not justified in the course it adopted, the respondents are entitled now to support the decree of that Court on the ground that the mortgagee having acquiesced in the mortgagors remaining in possession of portion of the mortgaged property, cannot succeed in his claim for interest.
5. For these reasons we dismiss the appeal with costs, including fees on the higher scale.