1. This is a second appeal on behalf of plaintiffs 1 and 2 against the decree of the lower appellate Court, allowing redemption of a deed of mortgage by plaintiff 1 only and not by plaintiff 2, and on payment of a sum of money amounting to Rs. 858-8-0. The main points In appeal are that the sum of money should only be Rs. 125, the original mortgage money, and that redemption ought also to be allowed to plaintiff 2. We may mention here that during the hearing of this appeal we express our willingness to remit an issue to the lower appellate Court for a finding in regard to whether the expenditure was such as came under Section 72 or Section 76, T.P. Act. But the learned Counsel for the respondents opposed the suggestion, and accordingly we proceed to dispose of the appeal by deciding the question under Order 41, Rule 24. The facts are as follows:
2. There was a plot 28, area 2 bighas 8 biswas odd on which certain trees stood, which was mortgaged on 5th December 1892 to the predecessors of the defendants. The plot was recorded as an occupancy holding, but at the time there was besides the trees a large pit from which it is said that bricks had been taken. The plot was let for the purposes of a grove and the defendants claim to have levelled the ground and made a boundary ditch and a mud wall round it and planted a number of palm trees on it. In the written statement the defendants claim that on redemption of the usufructuary mortgage the following sums should be paid by the plaintiffs:
(a) Expenses incurred in levelling and beautifying the land mortgaged. Rs. 28660
(b) Interest on rupees 286 6-0 at the rate of Rs. 9 per cent per annum. ' 44720
(c) Value of the palm trees. ' 17500
(d) Mortgage money. ' 12500
Total Rs. 1,03380
3. Of these sums the lower appellate Court has allowed (a), (b) and (d). The appellants claim that (a) and (b) should not be allowed. The lower Courts have allowed (a) and (b) on the ground that the expenses in (a) were incurred by the defendants under Section 72(b), T.P. Act, that is, money spent for the preservation from destruction of the mortgaged property. The question before us is whether the lower appellate Court had legal evidence before it on which it could come to a finding that the whole amount of Rs. 286-6-0 was money spent in this manner under Section 72(b), or whether it was money spent as necessary repairs of the property under Section 76(d). In the former case a mortgagee is permitted to add the money spent to the principal money at the rate of interest payable on the principal, or, if no such rate is fixed at the rate of 9 per cent per annum, which has been allowed by the lower appellate Court. In the latter case the mortgagee cannot claim repayment of money spent on such necessary repairs from the mortgagor. The lower appellate Court accepted as correct and based its finding on an account-book which contains accounts of expenditure by the mortgagee from the year of the mortgage in 1892 up to 1915, that is for a period of 23 years. The mortgage-deed does refer to the existence of a pit, and provides that the mortgagee should level the ground and add that money to the mortgage money. The account-book in question mentions items for the first few years of the mortgage, which was executed in Sambat 1949, as follows:
Sambat 1950. Rs. 1700
Sambat 1956. Rs. 3330
4. All these items are entered as expenditure incurred in 'filling in pits.' Along with this account-book and in explanation of it there was the evidence of a defence witness Azimullah referred to on p. 12 of the paper-book in the judgment of the Court of first instance as personally supervising the levelling work, and he states that on account of floods the pits had to be filled more than once and the boundary walls had also to be repaired several times, as the plot in suit was situated close to the river Barna and only a little rise in the river would put the land in suit under water. It appears, therefore, that the evidence on the record was to the effect that at the beginning of the term of mortgage in Sambat 1994 and Sambat 1950 four items of expenditure were incurred on filling in pits, totalling Rs. 36-7-6. Then there was a gap of six years in which the account-book does not show any expenditure at all. Accordingly, read with the evidence of Azimullah we consider that the only evidence before the lower appellate Court showed that out of the total of Rs. 286-6-3, only the sum of Rs. 36-7-6 was spent on filling in the original pit. The remaining expenditure of Rs. 286-6-0 was clearly spent on annual repairs due to flooding from the adjoining river. In regard to the question of interest Section 72, T.P. Act, states that in the absence of a contract to the contrary the mortgagee may add such money to the principal money at the rate of interest payable on the principal. In the present case the mortgage-deed specifically provides for the addition of the money incurred on levelling the ground to the principal money, but it does not provide for the payment of interest. Accordingly we consider that the parties by this agreement did not intend that interest should be paid and, therefore, we allow only Rs. 36-7-6 on account of the claim in (a) to para. 8 of the written statement, and nothing on account of the claim for interest in (b).
5. The next point which was argued before us was whether plaintiff 2 should obtain a decree in addition to plaintiff 1. The lower Court has disallowed the claim of plaintiff 2, because the plot was an occupancy plot, and, therefore, the transfer by sale from plaintiff 1 to plaintiff 2 on 22nd May 1925, of the equity of redemption was invalid. We consider, however, that at the time this transfer was made the plot, though originally an occupancy plot, had admittedly become a grove, and accordingly as there is nothing to show that the zamindar made any objection to the transfer, we consider that so far as the present case is concerned the transfer must be regarded as a valid transfer. In arriving at this decision we do not make any decision as regards the rights of the zamindar. Accordingly we grant a decree to plaintiff 2.
6. The next point which arises for decision is in regard to the fact that during the pendency of the second appeal in this Court plaintiff 1 to whom the lower appellate Court had granted a decree died. An application was made by one Tarhu as son of a daughter of the sister of plaintiff 1, and this application is supported by an affidavit, showing that there was no sapinda of the deceased plaintiff 1. Under these circumstances Tarhu is an heir to plaintiff 1 as a bandhu. If the plot were recorded merely as an occupancy plot, no doubt Tarhu would not be entitled to succeed plaintiff 1, but we must consider that the plot now is grove land, and accordingly Tarhu is entitled to succeed plaintiff 1 as his heir. Accordingly we grant a decree in favour of Tarhu as heir of plaintiff 1 and we grant a decree also in favour of plaintiff 2. Therefore we allow this appeal to the extent indicated, that is that Tarhu and plaintiff 2 will redeem the property in suit on payment of Rs. 125 within the period of six months from the date of this decree, otherwise their suit will stand dismissed. The defendants will deliver possession of the property in suit on receipt of Rs. 125. If the deposit is made within the period of six months allowed the plaintiff will obtain full costs in all Courts, and if the deposit is not made the suit of the plaintiff will stand dismissed with costs in all Courts.