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Shankerlal Lallubhai and ors. Vs. Bai Jiykor and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtGujarat High Court
Decided On
Case NumberSecond Appeal No. 754 of 1960
Judge
Reported inAIR1966Guj40; (1965)6GLR177
ActsTransfer of Property Act, 1882 - Sections 76, 83 and 84
AppellantShankerlal Lallubhai and ors.
RespondentBai Jiykor and ors.
Appellant Advocate N.R. Oza, Adv.
Respondent Advocate V.D. Desai, Adv.
DispositionAppeal dismissed
Cases ReferredKundanntal v. Kashihai.
Excerpt:
property - mortgage - sections 76, 83 and 84 of transfer of property act, 1882 - general proposition that every case of breach of duty laid down in section 76 (g) must necessarily entail consequences of loss of interest could not be acceded to in every case as circumstances of case may differ - incase mortgagor able to prove loss that he incurred on account of breach of that duty - mortgagor entitled to be re-compensated for such loss - incase in breach of duty court not in position to record correct and definite findings due to failure of mortgagee to prove amount of receipts derived and expenditure incurred - court justified in drawing presumption against mortgagee. - - 1 and 2 had failed to establish the basis for that claim. 1 and 2 with the consequence of the loss of interest as.....1. this is a second appeal by a plaintiff: it arises out of a suit instituted by appellant for redemption of the suit property and for its possession. the mortgage which was sought to be redeemed was created on 17th february 1930. it was an anomalous mortgage partaking of the characteristics of simple and usufructuary mortgages. the amount advanced under the mortgage deed was rs. 6,500 and interest was payable at the rate of 6 per cent per annum. original defendants nos. 3 and 4, who are respondents nos. 3 and 4, were the mortgagors. the mortgagors remained in possession of the whole of the property until 24th of february 1932. the mortgagee took possession of the upper storey of the mortgaged property on the latter date and the ground-floor on 25th of october 1933. it is common ground.....
Judgment:

1. This is a Second Appeal by a plaintiff: It arises out of a suit instituted by appellant for redemption of the suit property and for its possession. The mortgage which was sought to be redeemed was created on 17th February 1930. It was an anomalous mortgage partaking of the characteristics of simple and usufructuary mortgages. The amount advanced under the mortgage deed was Rs. 6,500 and interest was payable at the rate of 6 per cent per annum. Original defendants Nos. 3 and 4, who are respondents Nos. 3 and 4, were the mortgagors. The mortgagors remained in possession of the whole of the property until 24th of February 1932. The mortgagee took possession of the upper storey of the mortgaged property on the latter date and the ground-floor on 25th of October 1933. It is common ground that mortgagee was in possession of the whole of the property since the latter date. Original defendant No. 1 was the mortgagee. She died during the pendency of the litigation and is now represented by respondents Nos. 1-A to 1-E. There is no dispute that,at a subsequent date, appellant purchased and became the owner of the equity of redemption. It is in the latter capacity that appellant filed the aforesaid suit for redemption. Defendant No. 1 donated the mortgagee's right lo defendant No. 2, who is now respondent No. 2 in this Court. There were some more defendants appearing as defendants Nos. 5 to 11, but it is common ground that they do not have any interest in the mortgaged property. Before the present suit was instituted, there was an exchange of correspondence between appellant on the one hand and at first, respondent No. 1, and, subsequently, there was a similar correspondence between appellant and respondents Nos. 1 and 2. By the notices given by appellant, he claimed on account of the management of the mortgaged property by the mortgagees and true copies of the accounts together with the vouchers. The mortgagees, however, did not supply any copies of the accounts or of the vouchers. Instead, they claimed that a sum of Rs. 22,000 and odd was due under the mortgage. One of the terms of the mortgage was that rent was to be credited towards interest and if rent was more than the amount of interest, then, the excess was to he appropriated towards the principal amount and if it was less, then, the deflcit was to he paid by the mortgagor to the mortgagee. The trial Court passed a preliminary decree for taking accounts and appointed a commissioner for the purpose. After receipt of the commissioner's report and hearing objections of the parties thereon, the trial Court came to the conclusion that a sum of Rs. 10,995-14-0 was due from the mortgagor to the mortgagee and consequently passed a final decree therefor. The finding was that Rs. 5,500 was due as the principal amount and the balance was due by way of interest and costs of improvement. Appellant felt aggrieved by the final decree and preferred an appeal which was numbered as Civil Appeal No. 3ft of 1955 to the District Court at Godhra. Respondents Nos. 1 and 2 filed cross-objections The learned District Judge came to the conclusion that the mortgage amount due was Rs. 8,996-14-0. He held that Rs. 5,500 were due by way of principal amount and the balance was due by way of interest. The learned appellate Judge disallowed the claim for the costs of improvement on the ground that respondents Nos. 1 and 2 had failed to establish the basis for that claim. The Second Appeal has been preferred by appellant and it is directed only against that part of the first appellate Court's decree which awards the sum of Rs. 3,496-14-0 by way of interest. Appellant does not challenge the decree for Rs. 5,500 which has been awarded by way of principal amount. I shall mention just in a moment the two grounds on which the decree for Rs. 3,496-14-0 is being challenged by appellant in this Court. Respondents Nos. 1 and 2 have filed cross-objections to the appeal Under the cross objections, they claim a further amount of Rs. 1,999. This amount is claimed by respondents Nos. 1 and 2 on the ground that a sum of Rs. 1,000 should have been awarded as interest due from lit July 1938 at the rateof IS per cent per annum and that the balance was due as costs of improvement.

2. I shall first take up the two points of law on the basis of which the appeal for Rs. 3,496-14-0 is supported by Mr. Oza. The first point of Mr. Oza is that the learned Appellate Judge should have visited respondents Nos. 1 and 2 with the consequence of the loss of interest as a result of its finding that they had failed lo keep clear, full and accurate accounts of all the sums received and spent by them as mortgagees. The second submission of Mr. Oza is that, in any case, respondents Nos. 1 and 2 should have been visited with a similar consequence on account of their failure to supply appellant true copies of accounts and all the vouchers by which they were supported. I shall lake up the cross-objections for consideration after I have dealt with these two submissions made by Mr. Oza.

3. Now, before 1 deal with the first point of law, I may mention that respondents did produce an account-book in the trial Court. It was marked as Ex. 99/A. The learned Appellate Judge recorded a finding that he concurred with the finding of the trial Court that the above account-book was open to suspicion and unreliable. He also recorded a finding to the effect that he was, however, not able to persuade himself that the accounts were fabricated for the purpose of the suit. Me further held as follows: 'It is true that the state in which it (account-book) is kept is highly unsatisfactory. It is equally true that it is open to suspicion and cannot be relied upon, but the way in which the entries have been made in the account book, the difference of ink and the old appearance, would rather suggest that there is little possibility of fabrication for the purpose of the suit.' It appears that a very strong plea was made before the learned appellate Judge for raising a presumption against respondents, based on the fact that the account-book was unreliable. After making the observation that the accounts were not fabricated, the learned Judge recorded his finding regarding this plea as follows. 'Tin's is also another reason why I refuse to raise the presumption as contended for on behalf of the appellants.' The first point which was raised for decision in the first appellate Court was as follows:

'Whether interest on the mortgage amount should be held as paid off by rent on account of failure of the mortgagee to keep a clear, full and accurate account of all sums received and spent as mortgagee?'

The learned Judge recorded a finding in the negative on this issue for the reasons already given. The learned Judge also recorded a finding that, though the accounts were unreliable and suspicious, it was possible for him to form an estimate of the probable produce on the evidence that was available and that, in his opinion, the estimate of Rs. 13 per month as found by the lower Court was an accurate estimate of the income of the mortgaged property.

4. Now the proposition for which Mr. Oza contends for is an absolute proposition oflaw and that proposition is based upon the breach of the statutory duty imposed upon a mortgagee who takes possession of the mortgagors property as laid down in Section 76(g) of the Transfer of Property Act, 1882 (hereinafter called 'the Act') Section 76 enumerates in all about nine duties which a mortgagee who takes possession of the mortgaged properly must discharge in regard to such a property. At this stage, it is not necessary to mention all those duties except one mentioned in Clause (g) aforesaid, in regard to which, according to the finding of fact recorded by the first appellate Court, respondents Nos. 1 and 2 have committed a breach. The relevant part of that clause is as follows:

'76 Liabilities of mortgagee in possession. When during the continuance of the mortgage, the mortgagee lakes possession of the mortgaged property -s x x x x

(g) he must keep clear, full and accurate accounts of all sums received and spent by him as mortgagee x x x x x'

Now there is no doubt whatsoever that, having regard to the aforesaid finding, mortgagees have been guilty of committing a breach of this statutory duty. The question for consideration is as to what is the liability which a mortgagee incurs for breach of the aforesaid duty. Section 76 itself makes a provision for this purpose in the second paragraph thereof, which is as follows:

'11 the mortgagee fails to perform any of the duties imposed upon him by this section, he may, when accounts are taken in pursuance of a decree made under this chapter, be debited with the loss, if any. occasioned in such failure.'

A plain reading of this part of Section 711 will show that in case of a breach of the aforesaid statutory duty, the liability which is incurred by the mortgagee is that he may, in taking accounts, be debited with the loss, if any, occasioned by the breach of that duty. It is not the contention of appellant that the amount of interest which appellant claims in the suit for rcdemp lion is the amount of loss which has been occasioned to him by the failure to perform the aforesaid duty. It is quite clear from the aforesaid part of the section that there must he a nexus established between the loss and the failure to perform the aforesaid duty. In the case of several of the duties mentioned in S 76, such a tiexus can be easily established. As for example, Section 76 casts a duty upon the mortgagee to manage the mortgaged property as a person of ordinary prudence would do it if it were his own or that he must make his best endeavours to collect rent and profits thereof or that he must first pay off the Government dues and all charges of a public nature from out of the rent received by him. As a result of the non-performance of these duties or any of them, if the properly gets lost or If the property gets sold by public auction, or If the rent has become unrecoverable, It Is quite clear that, in taking accounts, all the losses which the mortgagor has Incurred as a result of the non-performance of the aforesaid duties would be debited to the account of the mortgagee. But it is difficult to say that if a mortgagee falls to keep clear, full and accurate accounts, then the loss which: arises as a result of the non-performance of this duty is the amount of interest which mort-; gagee is entitled to receive from mortgagor. Broadly speaking, there docs not appear to be any connection or nexus between the amount of interest and the breach ,if the aforesaid duty. But Mr Oza derives support for his aforesaid proposition from the case of Shadi Lal v. Lal Bahadur . In that case, it appears that the mortgagee had failed to produce accounts in relation to the mortgaged properly and the High Court had, on that account, disallowed the claim fur interest of. the mortgagee. The contention which was urged before their Lordships of the Privy Council was that the High Court ought not to base disallowed the mortgagee's claim in to and that they ought Io have, in any event, directed an enquiry into the accounts. It also further appears from the judgment of their Lordships that, though the accounts were not produced in the course of the trial, some accounts were placed before the trial Court a day before the judgment was pronounced and afler the evidence was closed. Those accounts were prepared from the 'Khatumnis kept by the revenue authorities Their Lordships considered the aforesaid argument on behalf of the mortgagee in two parts, the first part relating to the accounts and the second part relating to the disallowance of the claim for interest. After noting the aforesaid contentions addressed Io their Lordships on behalf of the mortgagee, their Lordships recorded at page 87 their findings in the following words:

''Their Lordships arc unable to accede to this contention. As. regards accounts, it is enacted by Section 76. Clause (g), T. P. Act, that a mortgagee in possession 'must keep clear, full and accurate accounts of all sums received and spent by hint as mortgagee '

'No such accounts were kept by the appellant or his predecessors, nor were any such filed in Court. All that the appellant did was to place before the Court a day before the judgment was pronounced, and after the evidence was closed, some accounts which apparently were prepared from Khataunis kept by the revenue authorities. No actual receipts from the land were shown in the accounts. The receipts as shown in the accounts included inter alia the rent payable by respondent 8, which, us already stated, was Its. 150 per annum. Respondent 8 was a clerk in the employ of the heirs of the mortgagee, and he admitted in his evidence that the lease to him was 'nominal', and that he paid the profits of the land to the heirs. Those profits were not shown in the accounts, In the circumstance* their Lordships think that the High Court were right In disallowing the appellant's claim for Interest.'

The contention of Mr. Desai is that the aforesaid case does not support the absolute proposition of law for which Mr. Oza contends, namely that, every failure to perform the duty under Section 76, Clause (g) must be visited with thepenalty of loss of interest. His contention is that the case arose out of non-production of accounts and that the actual decision was supported on the ground that the accounts were not produced and not on the ground that the belated accounts which were produced were wholly unsatisfactory. Mr. Desai contends that, in any case, It was as a result of the cumulative finding aforesaid that their Lordships have upheld the finding of the High Court that the mortgagee was disentitled to claim interest. Mr. Desai contends that, therefore, the aforesaid Privy Council case is not an authority for the proposition that, in every ease of a breach of duty, the mortgagee must necessarily incur the penalty for the loss of interest. Prima facie, the contention of Mr. Desai appears to be sound. Having regard to the provision contained in the second paragraph of S, 76 which provides for the consequence which should flow from breach of the performance of the duty laid down in Section 70 of the Act, it is difficult to agree on principle with the broad proposition that, In every case, where the duly is not performed, the mortgagee must ncur the loss of interest The clause directs not only keeping of accounts, but keeping of full, clear and accurate accounts. In a country like India where the proportion of people who cannot keep proper accounts is likely to be large, an examination of the accounts kept by them is more often than not likely to reveal a want of clarity, fullness or accuracy. It sounds rather odd to say that whenever a mortgagee fails to keep clear or full accounts or commits an inaccuracy in keeping them that he must lose Interest. If the inaccuracy can be remedied or if the error can be corrected, there is no reason, broadly speaking, as to why a Court of law, charged with the duly of administering justice, should not act after correcting the Inaccuracy or the error. A case in which accounts have not been Willfully kept or where accounts, though kept, are being sup pressed, may stand on a different footing from a case where accounts are found to be inaccurate or Incomplete or obscure in some respects. In such cases, It may be more in the interest of justice, if the materials permit, to read the other evidence and to record findings, if the Court can do so, and to construct a decree which may meet the ends of justice. This should specially be so because the Legislature has expressed its own mind as to what the consequence or the penalty of a breach of the duty should be It may be that, in some cases, reading all the evidence which the mortgagee may have led, if the Court is not in a position to reach any reasonable conclusion, then it may act odium spoliators omnla praesumuntur: the Court may draw all presumptions against the mortgagee and, as was done in the aforesaid Privy Council case, may even visit the mortgagee with the loss of interest. But whether this should or should not be done must depend upon the facts of each case. It is easy to see that, in a case where accounts have been deliberately suppressed, the Court may be easily persuaded to draw an inference of the aforesaid bind. Itmay be that, in a given case, the accounts may have been kept so slovenly that a similar presumption may also be raised specially when, on the evidence as it stands, it is not possible for the Court to come to any definite conclu-sion as to what income was derived by the mortgagee from the mortgaged property. The absolute proposition of law for which Mr. Oza, contends would mean that the moment, on an examination of the accounts produced by a mortgagee, the Court comes to the conclusion that the accounts are not in accordance with the duly laid down in Section 7(5), C|. (g) of the. Act, any evidence relating to the income from the mortgaged property or the expenditure incurred therefor would become taboo. For the aforesaid reasons, prima facie, it appears to me that there was considerable force in the argument advanced by Mr. Desai. Mr. Besai's contention derives support from the observations made by Fulion. J. in Kundanntal v. Kashihai. ILR 26 Bom 363. In that case, at page 372, the learned Judge has pointed out the procedure which is to be followed in a case where accounts have not heen properly kept by the mortgagee and has also pointed out the correct principles which are applicable in a case of that type This is what the learned Judge has said on this topic:

'While it is true that no general rule as to the value of accounts can be laid down, till It is clear that in each case all the circumstances must be considered, such as the relative positions of the parties to each other, the trade or caste of the mortgagor, and any oilier matters likely to be material- It is for the party who puts forward the accounts to explain them and support them in such a way as to convince the Judge that there is such a probability of their accuracy as to make it reasonable for a prudent man to accept them. If the Judge accepts them as correct, he ought to act on them If he thinks that they are not correct and ought not to be acted on, then he must do his best to form an estimate of the probable produce on the evidence that is available Such an estimate, which will of necessity usually be based on average profits, cannot of course be accurate, but, if moderate and reasonable, can he adopted on the ground that it is fair to draw inferences against the mortgagee in possession, became he, being the party who alone can know the actual facts, has failed to keep the accounts in ft manner in which the Court can safely accept them'

But, Mr. Oza very strongly relies upon the case of Suratsing Chandanmal v, Nommihhai Abdulhussein. AIR 1061 Bom 43. He con tends that the arguments which have prima facie appealed to me and the interpretation which Mr. Desm contends for on the aforesaid Privy Council case have been definitely rejected as invalid by a Division Bench of the High Court of Bombay in the aforesaid case, and Mr. Oza contends that that interpretation of the Privy Council case is binding on this Court, I have no hesitation in saying that if the aforesaid case does decide the proposition for which Mr. Oza contends, then, It would bebinding on this Court and if any arguments are advanced which would throw any doubt upon the correctness of the reasoning adopted in that case, then, the proper course for me would he to make a recommendation to the learned Chief Justice to constitute a Full Bench for a consideration of the correctness of the aforesaid principle. The passage on which Mr. Oza relies is to he found at page 46, which ends by saying that 'if the mortgagee fails to comply with the aforesaid statutory obligation, then, he must forfeit his right to claim interest.'

5. Now, the facts in that case were that the mortgagee had not produced accounts for the periods 1805 to 1920 and 1030 to 1947, but that he had produced accounts for the intervening period between 1920 to 1930. In that case, the same contention was raised as the one raised by Mr. Oza in this case and, in support of that proposition, reliance was placed upon the aforesaid Privy Council case. Mr. Jahagirdar who appeared for the mortgagee in that case tried to distinguish the Privy Council case more or less on the same grounds on which Mr. Desai has attempted to distinguish that case in this Court. That attempt was rejected by their Lordships in the following passage at page 46:

'Mr. Jahagirdur contended that this decision does not lay down, any absolute rule to the effect that in all cases where accounts have not been produced, interest to the mortgagee must be disallowed He argued that it was in the peculiar circumstance of the case that their Lordships came to the conclusion that the facts justified their Lordships in holding that interest should not be allowed to the mortgagees. In particular, he laid stress upon the words 'in the circumstances' appearing in the last sentence of the paragraph cited above. We are unable to accept this line of argument. The words 'in the circumstances' are not indicative of the existence of any discretion with the court in the matter of allowing or disallowing interest when it is found that accounts have not been maintained in the ordinary course or if maintained, have not been produced in Court. The words 'in the circumstances' have reference to only one fact, viz.. the mortgagee's failure to produce the accounts. There was no other circumstance present in the case and the only circumstance which prevailed with their Lordships In coming to the conclusion that interest should not be allowed to the mortagee was the non-production of accounts. Mr. Jahagirdar further pointed out that if any such penalty, viz., the forfeiture of the right to claim interest, were to follow from the mortgagee's failure to keep accounts, the Legislature would have provided for the same in the section itself. This argument also leaves us unimpressed because Section 76 does cast a statutory duty upon the plaintiff to maintain clear, full and accurate accounts of the incomes received and the sums spent by the mortgagee. The reason for this provision is not far to seek. Unless the mortgagee were to keep full and accurate accounts and to produce them before the Court, it would be difficult and notInfrequently well-nigh Impossible for the Court to take accounts and to find the true position obtaining at the foot of the accounts. If the mortgagee, therefore, falls to comply with this statutory obligation, then he must forfeit his right to claim interest.'

Now Mr. Desai contends that the judgment delivered by the aforesaid Division Bench was not a judgment in the true sense of the word. The contention was based on the observations made by the reporter at page 48 wherein it is stated that, after the findings mentioned therein were recorded, the parties compromised the matter and a decree was passed in terms of the compromise. Therefore, Mr. Desai contends that the aforesaid observations have no legal effect whatsoever. I cannot agree with this submission. The binding nature of the findings on a point of law does not depend upon the findings being incorporated into a decree. It may be that the case may have terminated by a compromise. But, there is no doubt whatsoever that, before the case was compromised, their Lordships did deliver a judgment in which they pronounced on a point of law which was submitted before them, and, in my judgment, the aforesaid passage would certainly he binding on this Court if it does constitute the ratio of the case. Secondly, Mr. Desai contends that the aforesaid observations were per incuriam inasmuch as they were based upon the wrong assumption that Section 76 of the Act itself did not lay down the consequences that should flow from a failure on the part of the mortgagee to perform the duty laid down in Section 76(g). For the latter proposition, Mr. Desai relies upon a passage to be found at page 45 wherein the aforesaid observations have been made by their Lordships. I am not impressed by this argument either Whilst it is true that Section 76 does pro-vide as to what the consequence of a breach of the aforesaid duty is, as 1 shall presently point out, that section does not provide for the contingency as to what the consequence of the non-production of accounts by a mortgagee is. Therefore, to the extent to which, and as I shall presently point out that that is the point which their Lordships were called upon to decide, their Lordships were considering as to what consequence should flow from the non-production of accounts by a mortgagee, their Lordships were justified in making the aforesaid observation that no consequence has been provided for by Section 76. However, in my judgment, Mr. Desai's contention is correct that the aforesaid observations were not made to cover a case where full, clear and accurate accounts were not kept by the mortgagee and which accounts on an examination were found to be unreliable, but, they were made to cover a case where the mortgagee had failed to produce the accounts altogether and that the case which their Lordships were deciding was the case of non-production of accounts. Mr. Oza contends that this is not an accurate reading of the aforesaid case. He submits that this was a case wherein also accounts had been produced in relation to the period from 1920 to 1980 and the aforesaid observations were marie bytheir Lordships in regard to these accounts which were found to be unreliable by the Commissioner and the trial Court. I cannot agree with this submission. Paragraphs 6, 6 and 7 of the judgment show that their Lordships undertook an examination of the aforesaid point of law without consideration of the merits of the contention of Mr. Jahagirdar that the findings recorded by the trial Court in respect of accounts for the period 1920 to 1930 were not correct. This appears quite clear from the following passage in paragraph 6 wherein their Lordships have stated as follows:

'Mr. Janagirdar, the learned advocate for the plaintiff-appellant has contended that the findings arrived at by the Commissioner are without basis in the evidence led in this case and are also contrary to the documentary and oral evidence led on behalf of the plaintiff, xxx x xx.

Before considering the merits of the case, it is necessary to refer to the circumstance that the plaintiff has not produced his accounts relating to the mortgage transactions at least for the period from 1890 to 1920 and also for the period from 1930 to 1947.'

Therefore, the point of law has been considered by their Lordships on the basis that the accounts for the aforesaid period were not produced and not on the basis that the finding that the accounts for the period for which they were produced were found to be unreliable. That this is so also appears from a part of the aforesaid passage at page 46, which has been already quoted, wherein their Lordships have emphasized that the Privy Council case also was a case of non-production of accounts. Therein their Lordships have' pointed out that the words 'in the circumstances' used in the passage extracted from the Privy Council case have reference to only one fact, namely, 'the mortgagee's failure to produce the accounts.' As against this line of reasoning, Mr. Oza relies upon the following part of the passage which has already been extracted by me:

'We are unable to accept this line of argument. The words 'in the circumstances' are not indicative of the existence of any discretion with the Court in the matter of allowing or disallowing interest when it is found that accounts have not been maintained in the ordinary course x x x x x x.'

But, in my judgment, the last observation must be regarded as obiter. The observation really did not arise for decision in view of the fact that their Lordships were considering the case on the basis that the account-books had not been produced. Under the aforesaid circumstances, it is not necessary for me to consider the question as to whether a reference is or is not required to be made to a larger Bench for considering the correctness of the interpretation which their Lordships have placed upon the Privy Council case and as to whether the absolute proposition which has been laid down in that case is correct law. Having regard to the fact that I am dealing with a case, not of non-production of accounts by a mortgagee, but with a case in which accounts have been found to be unreliable, that is, a case in which there has been a direct breach of duty cast under Section 76(g) of the Act, the. aforesaid Bombay case cannot be regarded as an authority for the absolute proposition for which Mr. Oza contends. If it had been a case of non-production of accounts by a mortgagee, I would have been certainly bound by the! aforesaid case. But, in view of the fact that this is not so, though the observations which their Lordships have made as to the correct reading of the Privy Council case arc entitled to weight, the same are not binding on me inasmuch as those observations are in the nature of obiter and did not directly arise for decision in the case. On general principle, for the reasons already indicated by me, it is impossible to accede to the general proposition that every case of a breach of duty laid down in Section 70(g) of the Act must necessarily entail the consequence of loss of interest. Though, if a mortgagor is able to prove that he has Incurred any loss on account of a breach of that duly, he would he entitled to be re-compensated for such loss, it cannot be laid down that he also incurs the further penalty of total loss of interest. Even in a case where a breach of duty has been committed as aforesaid, It is open to a mortgagee to lead evidence alinnde for the purpose of proving as to what exactly was the amount of receipts derived or expenditure incurred by him, although, in a given case, after doing its best with all that has been adduced by the mortgagee, if the Court is not in a position to record correct and definite findings on any of the aforesaid two topics, the Court would he justified in drawing all presumptions against the mortgagee, including the presumption that, during the period of his management, he had received Income which was equal to the amount of Interest that he was entitled to receive.

6. The second point of law which Mr. Oza submits for consideration is that respondents Nos. 1 and 2 had incurred a similar consequence of loss of interest on account of failure of their statutory duty to supply appellant, at his request and cost, true copies of accounts and of vouchers by which they were supported. The findings of facts recorded by the first appellate Court are that several notices were given by appellant to respondents Nos. 1 and 2 in which demand as laid down in the latter part of Section 76(g) of the Act was made by appellant and that the demand was not compiled with by respondents Nos. 1 and 2. That part of Clause (R) of Section 76 is as follows:

'76. When, during the continuance of the mortgage, the mortgagee takes possession of the mortgaged property,-

xx xx xx xx xx xx (g) he must x x x x x x at any time during the continuance of the mortgage, give the mortgagor, at his request and cost, true copies of such accounts and of the vouchers by which they are supported.'

Mr. Oza supports the above contention firstly on the basis of Section 84 of the Act. That sectionprovides for cessation of interest when the mortgagor has tendered or deposited in Court under S 88 the amount remaining due on the mortagge and the same has not been accepted by the mortgagee after proper steps have been taken in the mortgagor in regard to such tender or deposit. The condition precedent for the application of that section is a lender or a deposit. None of these two conditions is satisfied in the present case. It is not the inurlgagor's case that lie had deposited any amount under Section 83. There is no evidence, nor any finding of any tender either. All that was done was that appellant stated in the course of his notices that he had deposited the principal amount of Rs. 5,500 with his Advocate and further stated that he was prepared to pay on the accounts being supplied, such further amount as was legitimately due from him to respondents Nos, 1 and 2. This would, at the most, mean an expression of willingness on the part of appellant to pay the amount due under the mortgage. Even if this is construed to be a tender, it is quite clear that it would not he a valid tender and would not attract the provisions contained in Section 84 unless the tender is found to be of the whole of the amount found due under the mortgage. The finding of the first appellate Court is that the amount due under the mortgage was not Rs. 5,600. but was Rs. 8.996-14-0. But Mr. Oza contends that the unawareness of appellant as to what exactly was the amount due under the mortgage was due to a default on the pan of respondents Nos 1 and 2. This is true. However. Mr. Oza is unable to show as to how the consequence of a breach of this duly would be the loss of interest. At the most the arguments which can be advanced in support of this second proposition of law would lie the same as the arguments which are advanced in support of the first proposition of law and, for the reasons which I have already given, the second proposition must also be rejected.

7. Mr. Oza then tries to bring the rase within the purview of the second paragraph of Section 76 of the Article As 1 have already staled, in order that that second paragraph may apply, there must be a nexus between the loss and the failure of duty, and it is difficult to accede to the proposition that the loss which appellant incurred as a result of the breach of that duty was the amount of interest which respondents Nos. 1 and 2 were entitled to claim from appellant. It is not as if appellant was without any remedy on the breach of the aforesaid duty on the part of respondents Nos. 1 and 2. The moment appellant found that respondents Nos. 1 and 2 committed a breach of the aforesaid duty, they could have taken steps under Section 83 of the Act or could have filed a suit for redemption. The utmost loss which appellant can be said to Incur was that the aforesaid proceedings had necessarily to be taken by appellant on account of the breach of the above duty. But, I am not pursuing that particular matter further because Mr Oza did not contend that, because of the breach of the duty, reipondents Nos. 1 and 2 must be saddledwith the costs of the redemption suit. If the matter had been raised in that form, then, the argument would have been worth serious consideration. Under the circumstances, I am also not Impressed by the second proposition of law for which Mr. 0za contends.

8. Mr. Oza intended to raise the question about the correctness of the findings on the examination of accounts recorded by the learned appellate Judge I did not permit him to enter into this question because that was entirely a question about the appreciation of evidence and as to what exactly was the amount due on an examination of the evidence considered by the learned appellate Judge was a finding of fact.

9. For the aforesaid reasons, in my judgment the Second Appeal deserves to be dismissed with costs.

10. That leaves the question of cross-objections. As regards the claim of Rs. 1,000 as costs of repairs and improvement, the finding of the learned first appellate Judge is based on questions of facts. The learned Judge has observed that the said claim was based on three bases: (i) the assent of appellant, (ii) the expenses were necessary for preserving the property from destruction or deterioration, and (iii) they were necessary for security being insufficient. The learned Judge has found that all these three bases were not proved by respondents Nos 1 and 2. Mr. Desai was unable to formulate any point of law arising out of the findings of the learned Judge that all the above throe points had not been established by respondents Nos. 1 and 2. As regards the claim on the basis of interest, the same observations apply. That is also a matter of accounting and the learned Judge, after taking into consideration all the evidence on which reliance was placed, has come to the conclusion that the total amount of interest which respondents Nos. 1 and 2 were entitled to was Rs, 3.496-14-0 and no more. Therefore, the cross objections also deserve to be dismissed with costs.

11. Second Appeal and cross-objections dismissed with costs.


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