1. The plaintiff was mortgagor and the defendant was usufructuary mortgagee of certain plots of land. On 4th June 1919, that is, in the year 1327 fasli, the plaintiff deposited the money due on the mortgage for payment to the original mortgagee and subsequent transferees (the sum of Rs. 1,250) and took possession of the property. When the money was not removed he brought a suit for redemption and did not include therein a claim for profits from the date of deposit because he had already taken possession and was himself realizing the profits subsequent to the date of deposit. After contesting, the suit for redemption was decreed. It was held that Rs. 1,250 was a sufficient deposit. A decree for redemption was passed but not one for sale in the alternative, because the plaintiff had already obtained possession of the mortgaged land and the mortgage money also had been deposited:
2. As usually happens the suit for redemption was protracted and the decree was not passed till 25th June 1923, that is in the year 1330 fasli. The defendant thereupon treated the plaintiff as a trespasser for the years 1323, 1329 and 1330 fasli, and sued for the recovery of rent for that period under Section 34 of the old Tenancy Act. The plaintiff claimed that he was proprietor and not a tenant during the years in suit and was referred to the civil Court to obtain a declaration. In the civil suit the trial Court decided in his favour, but the decree was reversed by the lower appellate Court. This is a second appeal.
3. I am of opinion that the decree of the trial Court was correct. As soon as money is deposited, if the amount happens to be correct, the mortgagor is entitled to resume possession of the property as proprietor. This is apparent from the provisions of Section 84 which apply to a simple mortgage. Applying the same principle to a usufructuary mortgage, the mortgagee, if the amount deposited is correct, becomes entitled to recover the profits of the property as soon as a deposit is made. The mortgagor was formerly the owner of the property and by deposit became entitled to realize the profits of the property, so it is not apparent what qualifications of a proprietor would be wanting in him if, on making the deposit, he happened to take possession of the property peacefully. It is quite true that a different situation would arise if the deposit was not sufficient but deficient and under the circumstances the mortgagor would not be entitled to obtain the entire profits of the property. It was because the mortgagor had taken possession that he did not apply in the redemption suit for recovery of profits which he would have done if he had not been in possession. It was argued by Mr. Mukhtar Ahmad that merely by making a deposit the mortgagor does not become entitled to possession of property. In my opinion such a negation cannot be accepted under the law. If the mortgagee does not become entitled to possession it would follow that he would not be entitled to recovery of profit, but the law definitely states on the analogy of the provisions of Section 84, Transfer of Property Act, that as soon as deposit made it would be the mortgagor, and not the mortgagee, who would be entitled to realize profits. It was questioned why, if the plaintiff had got all he wanted he should have proceeded with a suit for redemption. There was every reason; there had been transfers subsequent to the mortgage and the plaintiff naturally desired an authoritative pronouncement as to the persons entitled to recover the money deposited by him. The suit was directed to that matter and not to the question of possession.
4. The principal of law enunciated in Ram Din v. Bhup Singh [1903) 30 All. 225 supports the view that the provisions of Section 84 would, by analogy, apply to usufructuary mortgages, and that a mortgagor, on making a deposit would be entitled to recover profits. The entire claim for profits up to the date of redemption has to be settled in the redemption suit, and there cannot be a subsequent separate suit on the subject. In a single Judge ruling reported in the same volume at p. 36 a learned Judge held that in a suit for redemption there ought to be a complete and final settlement of all accounts between the mortgagee and the mortgagor right up to the time of actual redemption: Kashi v. Bajrang Prasad. I set aside the decree of the lower appellate Court and restore the decree of the trial Court with costs throughout.