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Kishen Raj and ors. Vs. Radhalal and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtRajasthan High Court
Decided On
Case NumberSecond Appeal No. 12 of 1953
Judge
Reported inAIR1958Raj145
ActsRajasthan High Court Rules, 1932 - Rule 2(2); Rajasthan High Court (Amendment) Rules, 1957 - Rule 2(2); Code of Civil Procedure (CPC) , 1908 - Sections 34 - Order 34, Rules 2, 4, 7 and 11
AppellantKishen Raj and ors.
RespondentRadhalal and ors.
Appellant Advocate Magraj, Adv.
Respondent Advocate M.M. Vyas, Adv. for Respondents Nos. 1 and 2
Cases ReferredMohammad All v. Ramzan Ali
Excerpt:
- - so far as defendant respondent sheoraj is concerned, he filed a jawabdava in which he admitted to have executed a fresh deed of mortgage in favour of the contesting defendants after going into accounts with them and although he admitted that he as well as the plaintiffs respondents were equally related to the deceased laxminarain, he contended that the plaintiffs had no right as they had refused to incur any expenditure in connection with the death ceremonies of laxminarain and when called upon to do so, they clearly stated that neither they would contribute to any such expenditure nor they would lay any claim to the estate ot the deceased. ' this rule, to my mind, is clearly retrospective in its tenor and intendment and must be applied accordingly subject of course to the.....i.n. modi, j.1. this is a second appeal by the defendant kishenraj and others in a suit for redemption of mortgage.2. the appellants are mortgagees. contesting respondents nos. 1 to 3 who were plaintiffs in the trial court brought this suit on the 30th july, 1948, in which they also impleaded sheo-raj as one of the defendants. the case of the plaintiffs was that they were the heirs of the deceased laxminarain, the original mortgagor, who had executed a mortgage of the suit property in favour of the constesting respondents by a deed dated samwat 1998 bhadwa vadi 10 (7th august, 1941) to secure a loan of rs. 2400/- in all out of which rs. 1600/- were to carry interest at the rate of 12 annas per cent per mensem and rs. 800/- were bhoglawa, that is, this latter sum was not to carry any.....
Judgment:

I.N. Modi, J.

1. This is a second appeal by the defendant Kishenraj and others in a suit for redemption of mortgage.

2. The appellants are mortgagees. Contesting respondents Nos. 1 to 3 who were plaintiffs in the trial court brought this suit on the 30th July, 1948, in which they also impleaded Sheo-raj as one of the defendants. The case of the plaintiffs was that they were the heirs of the deceased Laxminarain, the original mortgagor, who had executed a mortgage of the suit property in favour of the constesting respondents by a deed dated Samwat 1998 Bhadwa Vadi 10 (7th August, 1941) to secure a loan of Rs. 2400/- in all out of which Rs. 1600/- were to carry interest at the rate of 12 annas per cent per mensem and Rs. 800/- were Bhoglawa, that is, this latter sum was not to carry any interest.

The plaintiffs further stated that they had Impleaded Sheoraj as a defendant as he was not prepared to join the suit. The plaintiffs also stated that they had given a notice to the defendants to redeem the property on the 12th July, 1948, but the latter declined to give any redemption, and, consequently, they were compelled to institute the present suit. The plaintiffs' prayer was that the redemption of the suit property be allowed to them on payment of a sum of Rs. 3400/- to the defendants.

3. The defendants appellants admitted that the deceased Laxminarain had executed a mortgage with respect to the house in suit for a sum of Rs. 2400/- in their favour and that the particulars mentioned in connection with that mortgage in the plaint were correct.

They, however, resisted the suit on a number of grounds all of which need not be mentioned for the purposes of the present appeal. The main contention raised by them Was that so far as they knew, defendant respondent Sheoraj was the lawful heir of the deceased Laxminarain, and that the plaintiffs were not his lawful heirs, and consequently, they had no right to redeem the suit property.

They further contended that the said Sheoraj had gone into accounts with them on the 22nd December, 1947 and had acknowledged a sum of Rs. 7001/- as due on the suit mortgage inclusive of certain further dealings between them and Laxminarain and Sheoraj as a result of which in all they claimed a sum of Rs, 7301/- as principal and Rs. 500/- as interest, total Rs. 7801/-, the interest having been calculated at the rate of 10 annas per cent, per mensem.

It was contended that Sheoraj had executed a fresh deed of mortgage in their favour, which however, was not registered. The defendants further contended that they had spent a sum of Rs. 300/- on some litigation with one Mohanlal who was a neighbour in connection with some construction which the latter wanted to raise close to the entrance door of the suit house.

The defendants claimed that they were entitled to this amount inasmuch as if they had not raised an objection to the construction sought to be made by Mohanlal, the mortgaged house would have become entirely useless. Consequently, the defendants claimed that if the court should come to the conclusion that the plaintiffs had any locus standi to bring the present suit for redemption, such redemption should be allowed to them on payment of a sum of Rs. 8101/- in addition to interest and cost of the suit.

It may also be mentioned, before proceeding further, that although the defendants did not raise any specific contention in their jawab-dava that they had actually spent a particular amount of money by way of repairs to the house in question, they claimed at the trial a sum of Rs. 600/- on account of repairs to the suit house.

So far as defendant respondent Sheoraj is concerned, he filed a jawabdava in which he admitted to have executed a fresh deed of mortgage in favour of the contesting defendants after going into accounts with them and although he admitted that he as well as the plaintiffs respondents were equally related to the deceased Laxminarain, he contended that the plaintiffs had no right as they had refused to incur any expenditure in connection with the death ceremonies of Laxminarain and when called upon to do so, they clearly stated that neither they would contribute to any such expenditure nor they would lay any claim to the estate ot the deceased.

4. The trial court found that the plain-tiffs and defendants Sheoraj were co-heirs of the deceased Laxminarain, that the mortgage executed by Sheoraj in favour of the defendants appellants was inadmissible in evidence as its registration was compulsory, and that, in any case, the plaintiffs were not bound by the acts of the defendant Sheoraj.

It also found that the defendants appellants had spent Rs. 600/- on repairs and that another sum amounting to Rs. 300/- was also spent by the defendants appellants to protect the mortgaged property. Consequently, the trial court passed a decree for redemption in favour of the plaintiffs respondents on payment by them of Rs. 2400/- as principal and a sum of Rs. 1002/-as interest on Rs. 1600/- from 7th August, 1941, being the date of the mortgage to the 30th July, 1948, being the date of the suit plus Rs. 600/-as cost of repairs and Rs. 300/- as litigation expenses total Rs. 4302/- together with further interest at 12 annas per cent per mensem from the date of suit to the date of realisation. The trial court further held that the plaintiffs were to pay this amount within six months from the date of the decree.

5. The plaintiffs went In appeal from the above decision to the learned District Judge, Jodhpur, and the defendants appellants filed a cross objection. The learned District Judge dismissed the cross-objection of the defendants which was directed against the disallowance by the trial court of the costs of the suit and interest on repairs and litigation expenses, and partly allowed the plaintiffs' appeal inasmuch as he disallowed the sum of Rs. 600/- as repairs and also the sum of Rs. 300/- as expenses of litigation with Mohanlal and he also disallowed interest on the sum of Rs. 1600/- (part of the mortgage money which was to carry interest) beyond six months from the date of the written statement of the defendants appellants; in other words, interest pendente lite was allowed only up to the 2nd November 1949, and no more. The contesting defendants have now come up in appeal against the above decision.

5a. In this appeal the defendants appellants principally seek to claim a decree for pendent lite interest and for the amount of Rs. 600/- alleged to have been spent by them as repairs to the suit house and also for Rs. 300/- alleged to have been spent on litigation with Mohanlal. It was also faintly argued by their learned counsel that a personal decree for the amount of Rs. 8001/- together with interest and costs be awarded against the defendant Sheoraj but this contention was given up for the purposes of the present litigation, and quite rightly.

I may state at once that if the appeUants wish to pursue their remedy against Sheoraj in connection with any monies advanced to him or the deceased Laxminarain by way of a personal debt, they should seek their remedy in a separate suit.

6. A preliminary objection was raised by learned counsel for the plaintiffs respondents that a single Judge of this Court has no jurisdiction to hear this appeal which was valued at Rs. 2500/- as at the time this appeal was filed in this Court on 5-8-1953, a Division Bench was alone competent to hear it according to the rules which were then in force, the jurisdiction of a single Judge extending upto the betting of appeals of the valution of Bs. 2000/-only.

It was contended that by an amendment of the rules of this Court made in 1954 during the pendency of the appeal, the jurisdiction of the single Judge was extended, so that appeals upto the valution of Rs. 5000/- could be heard and disposed of by him and that the rule so amended) was in force at this date,

The contention, however, is that this extension in the powers of the single Judge could not have a retrospective effect as the right of appeal was a vested one and, therefore, this appeal could be heard by a Division Bench only. I have given this argument my careful consideration, and have come to the conclusion that there is no force in it. A complete and categorical answer to this contention, in my opinion, is provided by Sub-rule (2) of Rule 2 of the High Court Rules, 1952. This rule was enacted in 1957 and was published in Rajasthan Gazette No. 17, dated 25-7-1957, part IV-G, page 288. This rule reads as follows :

'(2) An amendment to these rules shall apply to proceedings and matters in the court commenced on or subsequent to the date of the amendment and so far as may be also to proceedings and matters pending on that date.'

This rule, to my mind, is clearly retrospective in its tenor and intendment and must be applied accordingly subject of course to the consideration that such retrospective operation is not rendered impossible. I am, therefore, definitely of the view that the rule by which the jurisdiction of the single Judge was extended so as to empower him to hear appeals up to the valution of Rs. 5000/- read with the rule cited above applies not only to proceedings commenced subsequent to the date of the amendment enlarging the jurisdiction of the single Judge but also to proceedings which were already pending in the court on the date when the amendment came into force and are still pending.

That being so, when the present appeal came Tor hearing before me on 31-10-1957, a single Judge of this Court would undoubtedly have jurisdiction to hear this appeal -- his jurisdiction at this date admittedly extending up to appeals up to the valuation of Rs. 5000/-.

It was submitted by learned counsel for the respondents that the amended sub-rule contained the expression 'so far as may be' and so the rule was somewhat qualified in its true effect. There is no force in this contention either. The expression 'so far as may be' merely connotes that the amendment would be retrospective in so far as such retrospective effect can be possibly given effect to and is not rendered impossible.

A retrospective effect is certainly possible in the present case which is still alive, and has not been disposed of. There are no circumstances which I am able to see or have been pointed out to me which go to show that the rule as to amended jurisdiction of a single Judge of this Court cannot be given effect to in the present case. In this view of the matter, the preliminary objection has no force and I overrule it.

7. I next turn to the merits of the appeal.

8. The first, and the foremost contention which was raised before me in this connection was that the learned District Judge should not have interfered with the decree of the trial court by which the latter had allowed pendente lite and future interest to the defendants appellants and there he had acted arbitrarily in allowing interest to the limited extent to which he was prepared to go.

In this connection, my attention was drawn by learned counsel for the appellants to the circumstances that the District Judge had himself observed in the course of his judgment that the plaintiffs respondents had not given any notice to the defendants appellants, who are the mortgagees, for redemption of the mortgaged property prior to the filing of the suit nor had the plaintiffs made any tender of the mortgage money which would have gone to show their earnestness to redeem the property.

The learned Judge, however, formed the impression that the defendants appellants were guilty of mala fides in various ways in opposing the plaintiffs' claim on fictitious grounds and that they had colluded with Sheoraj to defeat the plaintiffs' rightful claim to redeem the property.

The learned District Judge has further observed in the course of his judgment that the plaintiffs could have tendered money only if the mortgagees should have agreed to reasonable terms, and that in the absence of such terms having been arrived at no question of tendering the mortgage money arose.

Finally, the learned Judge thought that after the suit was filed, the mortgagees surely had a clear .notice of the plaintiffs' intention to redeem the property, and that they did not react to this claim honestly. In this view of the matter, the learned Judge came to the conclusion that no interest should be allowed to the defendants from the date of the written statement which was filed on 2-5-1949, and taking an indulgent view, he allowed a further grace of six months from the date of the written statement for which interest at the most might have been allowed in his opinion and he allowed it accordingly.

9. Now, before I address myself to the question of the correctness of the conclusion arrived at by the learned District Judge on this aspect of the case, I consider it proper and desirable to turn to Order 34, Rule 11, C. P. C., which has a direct bearing on this question. The material portion of this rule reads as follows:

'Payment of interest: In any decree passed in a suit for foreclosure, sale or redemption, where interest is legally recoverable, the Court may order payment of interest to the mortgagee as follows, namely:

(a) interest upto the date on or before which payment of the amount found or declared due is under the preliminary decree to be made by the mortgagor or other person redeeming the mortgage--

(i) on the principal amount found or declared due on the mortgage, at the rate payable on the principal, or, where no such rate is fixed, at such rate as the Court deems reasonable;

(ii) .....

(iii) .....

(b) Subsequent interest upto the date of realization or actual payment at such rate as the Court deems reasonable--

(i) on the aggregate of the principal sums specified in Clause (a) and of the interest thereon as calculated in accordance with that clause; and

(ii) on the amount adjudged due to the mortgagee in respect of such further costs, charges and expenses as may be payable under Rule 10.'

10. I may state at once that this rule relating to interest wag introduced by the amending Act (No. XXI) of 1929 as it had been doubted in some decisions on the subject whether Section 34 of the Code of Civil Procedure applied to mortgage suits or not. Order 34, Rule 11 deals with interest in two parts: (1) period up to the date of redemption and (2) the period thereafter.

So far as interest under the second head is concerned it has been left entirely at the discretion of the court, subject of course to any other laws which may limit the exercise of that discretion. So far as interest for the first period is concerned, that is, the period from the date of the decree up to the date of redemption, the rule says that the court may allow interest on the principal amount fixed or declared due on the mortgage at the rate payable on the principal, or where no such rate is fixed, at such rate as the court thinks reasonable.

Now, it was contended before me on the side of the plaintiffs respondents that it is entirely at the discretion of the court whether interest should or should not be allowed at all to the mortgagee in a given case by way of pendente lite interest; while on the other hand, it was equally strenuously contended on behalf of the appellants that it was obligatory for the court to allow pending interest though the court had been given the authority to vary the rate of such interest having regard to the circumstances of a given case. I must confess that the decisions on this point are not uniform. I shall proceed to (leal with some of these cases now.

11. The first and most important case to which it is necessary to invite attention in this connection is Jagannath Prosad Singh v. Suraj-mul Jalal, AIR 1927 PC 1 (A). It was held in this case that the question of interest until the period of redemption has expired rests in contract, and the interest has to be paid at the rate and with the rests specified in the contract of mortgage.

In other words, the court had no option, according to this view, to vary the rate of interest for the period from the date of the suit to the period of grace fixed by the preliminary decree. This was indeed the position as laid down by their Lordships of the Privy Council before the Amending Act No. XXI of 1929.

12. The position, however, was reviewed by the Federal Court in Jaigobind Singh v. Lachmi Narain, AIR 1940 FC 20 (B). In that case, the question arose whether the court was bound to allow the contractual rate of interest pendente lite in a mortgage suit. Sulaiman J., who delivered the judgment of the Federal Court observed that prior to 1929, the position was that the question of such interest was considered to remain in contract, and the interest had to be paid at the rate specified in the contract, and in support of this view, the decision of the Privy Council in Jagannath Prosad Singh's case was cited.

The learned Judge proceeded to observe however that after Order 34, Rule 11 was introduced, the special provision contained therein 'gives a certain amount of discretion to the court so far as pendente lite and subsequent interest are concerned. It is no longer absolutely obligatory on the Courts to decree interest at the contractual rate upto the date of redemption in all circumstances, if there be no question of the rate being penal, excessive or substantially unfair within the meaning of the Usurious Loans Act, 1918.'

Reference was then made to Sripat Singh v. Naresh Chandra Bose, AIR 1932 Pat 332 (C) and an earlier decision of the Federal Court in Jagdish Jha v. Aman Khan, AIR 1940 FC 3 (D), where interest at a reduced rate had been allowed from the date of suit up to the date fixed for redemption; and it was pointed out that the view taken as to the power of a court to reduce interest pendente lite was not contrary to law.

13. The position which thus emerges clearly seems to be that, whereas, before Order 34, Rule n had been introduced, the court had no option to reduce the rate of pendente lite interest which was considered to rest in contract until the date fixed for redemption in the case of a redemption suit, the court after the introduction of the said rule, would have the power to reduce the rate of such interest.

14. The next case to which I might refer is Brij Jiwandas v. Kawal Mani Bibi, AIR 1942 All 444 (E). In this case it was held that under Order 34, Rule 11 read with Rule 4, interest should ordinarily be allowed at the contractual rate on the principal amount due, in the first place, up to the date of the decree, and in the second place, from the date of the decree to the date fixed for payment.

But in some circumstances and for good rea-sons, a Judge may disallow interest altogether but if he does allow interest, he has no option except to allow it on the principal amount at the contractual rate if such a rate has been stipulated between the parties. The learned Judges who decided this case do not appear to have noticed the decision of the Federal Court in Jaigobind Singh's case (B). With respect, it seems to me that this case cannot be considered to have laid down the correct law in view of the decision of the Federal Court.

15. The next case to which I wish to refer, though it was not cited by either parties, is Sukhraj Rai v. Ratinath Panjiara, AIR 1942 Pat 102 (F). It was held by a Bench consisting of Harries C. J. and Chatterji J., that the decision of the Federal Court in Jaigobind Singh's case (B) could not be interpreted to lay down that the court had the power under Order 34, Rule 11 to refuse pendente lite interest altogether, and that all that the learned Judges there laid down was that Order 34, Rule 11 gives 'a certain amount of discretion' to the court so far as pendente lite and subsequent interest were concerned, and that interest at the contractual rate up to the date g redemption need not be decreed at the contractual rate even if there was no question of the rate being penal, excessive or substantially unfair, and that reading Order 34, Rule 2 and Rule 11 together, it could not be held that the Federal Court intended to lay down that the court could refuse pendente lite interest altogether.

16. The next decision to which I was referred is Siaram Singh v. Jugutdeo Singh, AIR 1952 Pat 161 (G). It seems that the previous decision of the Patna High Court referred to above was not brought to the notice of the learned Judge who decided this case. It further seems to me with utmost respect that the learned Judges have not correctly construed the decision of the Federal Court in Jai Govind Singh's case (B), when they thought that according to that decision, Order 34, Rule 11 gives an unlimited discretion to the court, and, in the exercise of that discretion, the court may refuse pendente lite interest altogether.

It is important to recall here what the Federal Court said, & all it said was that the new rule gives a certain amount of discretion to the court, and that under the rule enacted in 1929, it was no longer obligatory on the courts to decree interest at the contractual rate up to the date of redemption in all circumstances even in those cases where no question of the rate being penal, excessive or substantially unfair arose.

Again, this Patna decision seems to proceed on the lines of Brij Jiwandas v. Kawal Mani Bibi (E), which, as I have already pointed out above, does not seem to me to be consistent with the view laid down by the Federal Court, and does not lay down the law correctly.

17. The next case to which I should like to refer is Nil Moni v. Baidyanath, AIR 1957 Cal 140 (H). In this case it was held that the court under Order 34, Rule 11, C. P. C., is bound to decree pendente lite interest though it is left to the discretion of the court at what rate it is to be allowed, and that in doing so the circumstances of each particular case will have to be taken into consideration.

With respect, the proposition as stated above must be read subject to the qualification that the grant of the interest claimed is not opposed to any law, because where such be the case, interest cannot but be refused.

18. Lastly, I proceed to address myself to the decision of the Privy Council in Mohammad All v. Ramzan Ali, AIR 1921 PC 100 (I), on Which learned counsel for the contesting respondents placed considerable reliance to show that pendente lite interest could be refused altogether where the mortgagor raises unwarrantable claims and thereby protracts the litigation which would have otherwise had a speedier end.

In this case the mortgagee's claim to interest was based upon the construction of the mortgage bond which was not upheld by the first two courts in India, and though a different construction was put by the learned Judicial Commissioner and the entire claim as to interest disallowed, the Privy Council upheld the construction placed upon the document by the subordinate courts in disagreement with the view of the Judicial Commissioner and restored the decree of the trial Court which allowed interest to the mortgagee upto the date of the decree.

But what the Privy Council further did in this case was to disallow interest during the pendency of the appeals to the courts in India and also to the Board. This case is thus no authority for the proposition that even interest pen-dente lite can be refused altogether where it is not opposed to lav; though the case supports the view that subsequent interest may be refused in the discretion of the court on account of the undue persistence of the defendant mortgagee in persisting an unjustifiable claim.

19. From a review of the decisions referred to above, the true principles for the award of interest, pending and future in a mortgage suit may be laid down somewhat as follows:

(1) There can be no doubt or dispute that where the interest claimed is opposed to any law, or the rate of interest claimed is penal or extortionate or is contrary to any law, such interest has to be disallowed or the rate claimed cannot be permitted and must be reduced as the case may be.

It seems to me that this rule applies equally to interest upto the period of the suit as Well as to pending and future interest.

(2) But even where interest is legally recoverable and the rate of interest is not penal or unconscionable or otherwise excessive according to any law, it is open to a court to vary the rate so far as the period between the date of suit and the date fixed for redemption in a preliminary decree is concerned, and high support for this view is to be found in several decisions of the Federal Court including Jai Gobind Singh's case (B), already cited above.

The decisions which take a contrary view namely, that where interest is allowed, it must be allowed at the contractual rate and the rate cannot be varied, do not lay down the law correctly.

(3) The view taken in some cases that Order 34, Rule 11 permits an absolute refusal of interest pen-clentc lite even where interest is legally recoverable and is not opposed to any law does not ap- pear to be correct having regard to the terms of Order 34, Rule 2 or 4 or 7, which clearly require an account to be taken of both principal and interest on the mortgage, as also Section 34 of the Civil Procedure Code.

It is true that under Section 34, the award of in-terest from the date of suit to the date of decree is discretionary, but the discretion must be exer-cised on sound principles, and the rate of inte-rest may certainly be reduced where it is justified by the circumstances of a case.

It clearly seems to me however that when the Federal Court observed in Jai Gobind _Singh's case (B), that the special provisions contained in Order 34, Rule 11 removed the conflict between Section 34 and certain rules of Order 34, it was in the sense just mentioned above that they had made the observation in question, and that observation should not be interpreted to support the view contended for that even where interest was legally recoverable, it could be refused altogether.

(4) As for subsequent interest, i. e., interest from the date of redemption fixed in the preliminary decree up to date of payment or realisation of the mortgage money, the matter rests clearly in the domain of judgment and the grant of such interest is entirely in the discretion of the court.

20. Having regard to the principles summarised above, let us see whether the learned District Judge was right in disallowing pendente lite interest to the defendants appellants. I have given this question my serious consideration, and have come to the conclusion that the learned Judge was not right in the order which he passed.

He could not, as a matter of law as discussed above have deprived the appellants of all interest after six months of the filing of the written statement up to the date fixed for redemption by the preliminary decree. Apart from that, and even assuming for the sake of argument though not conceding that the learned Judge had a discretion in the matter to refuse interest altogether, I am of opinion that he has gone too far in disallowing all interest to the appellants after the period of six months from the filing of the written statement.

The learned Judge seems to have been greatly influenced in his decision because the mortgagees appellants had, to use his own expression, colluded with defendant Sheoraj to defeat the just rights of the plaintiffs respondents to redeem the suit property. It also appears to me that the learned District Judge thought as if Sheoraj was just a busy-body who had no business to enter into any accounting with the appellants.

Both these impressions of the learned Judge seem to me to be rather conjectural. There is not an iota of evidence on the record that the appellants had entered into any collusion with defendant Sheoraj. I have carefully perused the evidence of plaintiff Radhalal and the defendant Kishenraj who is the principal contesting defendant, Radhalal did not utter a single word in his deposition that there was any collusion bet-ween defendant Kishenraj and Sheoraj.

Nor was any cross-examination directed at all against Kishenraj upon this point. On the other hand, Radhalal plaintiff admitted that upon the death of the original mortgagor Laxminarain, defendant Sheoraj (who admittedly was a coheir of the deceased) had incurred all the expenditure on the ceremonies which were performed in connection with Laxminarain's death in 1943, though he (Radhalal) qualified this statement by saying that such expenditure was met by Sheoraj out of Laxminarain's own assets.

Radhalal, however, felt himself completely concerned when he was further asked what assets, if any, Laxminarain had left behind him. In reply Radhalal was forced to admit that he did not know anything as to that. There is also some evidence on this record to suggest that in a suit of pre-emption which had been filed by Laxminarain against Mohanlal, a neighbour, Sheoraj applied to be made a legal representative of Laxminarain after the latter's death and was accepted as such and the plaintiffs respondents did not even apply to be made Laxminarain's legal representatives.

In fact, if plaintiff Radhalal is to be believed, he did not know of this litigation at all. All these facts clearly point to the conclusion that the plaintiffs for reasons best known to themselves did not interest themselves in the affairs of Laxminarain at all after his death, and Sheoraj held himself out as the latter's legal representative.

It is true that Sheoraj was sought to be produced by the defendants in their evidence and when he did not appear in spite of service of summons, they did not enforce his attendance by the issue of a warrant against him. But that cannot be a matter for. legitimate comment against the defendants as the learned District Judge seems to have thought because Sheoraj might have been won over by the plaintiffs by that time. Sheoraj's reluctance to appear in evidence is in itself not without significance.

Again, it must be remembered in this connection that after all it was not easily possible for a more or less unconnected person like Kishenraj to know precisely the rather distant relationship which existed between Laxminarain on the one hand and the plaintiffs on the other. The plaintiffs did not give the family pedigree table even in the plaint. All that they roundly said therein was that they were Laxminarain's next heirs.

The pedigree table was got produced by the plaintiffs from a family Bhat P. W. Devilal for the first time on 26-8-1949. From a perusal of this family tree, it appears that the common ancestor of Laxminarain and the plaintiffs was one Rama removed six degrees from both of them and also from Sheoraj.

In these circumstances it cannot be contended and much less accepted with any justification that there was any collusion between Kishenraj and Sheoraj or that the former knew as a matter of necessity or even probability that the plaintiffs respondents were the lawful heirs of Laxminarain. I would also add in this connection that the plaintiffs undoubtedly mentioned in their plaint that they had given a notice to the defendants to give redemption of the mortgage, but the plaintiff Radhalal who alone examined himself on behalf of the plaintiffs said not a word about this in his deposition. This notice was not even produced on the record much less proved.

Having regard to these circumstances, taken! together with the further circumstance that the plaintiffs had at no stage throughout the trial tendered to the appellants or deposited in court even such mortgage money as they thought was due from them, I am of opinion that the learned District Judge was manifestly wrong in limiting the grant of interest up to six months from the date of the written statement and refusing it for the rest of the period of the suit. I hold accordingly.

21. The next question is whether there are any circumstances warranting the reduction of the rate of interest pendente lite. I confess, I see none. The rate stipulated in the deed of mortgage was 12 annas per cent., per mensem simple, and that was limited to part of the mortgage money viz., Rs. 1600/- only.

I do not see that this rate was penal or unconscionably high or excessive on any considers-tions of justice, equity or good conscience. I am also unable to hold, having regard to the circumstances already discussed above that the plaintiffs were entitled to redeem the property until they proved their right to redeem the property as legal representatives of the deceased mortgagor Laxminarain in a court of law in the presence of Sheoraj who was certainly intermeddling with the estate of Laxminarain after his death without any objection or interference by the present plaintiffs.

Consequently, I am of opinion that no reduction of the rate of interest pendente lite or even up to the date of redemption fixed by the trial court is called for in the circumstances of the case.

22. As regards interest subsequent to the period of grace, the learned District Judge disallowed it altogether. For the reasons which I have already mentioned above, which I need not repeat, I am of opinion that this decision was arbitrary and based upon a complete misappre-ciation of the true circumstances of the case, and interest should not have been refused having regard to these circumstances.

I however, think that the ends of justice will be met if interest, at 4 per cent., per annum is allowed to the appellants on the aggregate of the principal sum plus interest as already awarded above subject to what follows hereafter.

23. The only other question which was seriously raised before mo was as regards the amount of Rs. 600/- alleged to have been spent by the appellants on repairs to the suit house, which was allowed by the trial court but refused by the lower appellate Court.

Learned counsel for the appellants in this connection drew my attention to the recital in the deed of mortgage in which it was stated by the mortgagor Laxminarain that certain repairs to the house were required to be done urgently, and that the mortgagees would be within their rights to spend up to a sum of Rs. 600/- on such repairs. It was, therefore, claimed that the learned District Judge should not have disallowed the repairs.

It is remarkable, however, that the defendants appellants did not raise any specific plea with regard to this item of Rs. 600/- in their jawabdava, and all that they stated was that they had spent some money on the repairs of the house and that the entire account relating thereto had been explained to Sheoraj heir of Laxminarain after the latter's death.

No account for this expenditure was produced. When the defendant Kishenraj came into the witness-box, he deposed that he had made over such accounts as he had kept to Sheoraj. The result is that though it is probable that the defendants appellants may have spent some money on repairs to the suit house, such expenditure has not been legally proved.

Under the circumstances, I am unable to interfere with the finding of the lower appellate court refusing this amount to the appellants.

24. As to the contention that the defendants appellants had spent a sum of Rs. 300/-in connection with certain litigation which they had to enter into with a neighbour Mohanlal there is no proof, worth the name, on this record that this litigation was necessary in order to protect the mortgagor's title with respect to the suit property.

Certain certified copies in connection with this litigation appear to have been produced in the trial court in July, 1951, but it is difficult to understand why they were produced at such a late stage, and, in any case they are entirely inadequate, as they stand, to show that this litigation was necessary in order to protect the title of the mortgagor.

The finding of the learned District Judge, therefore, does not call for any interference on this point also.

25. For the reasons mentioned above, I partially allow this appeal, modify the judgment and decree of the learned District Judge, and hereby direct that the plaintiffs respondents shall, in addition to the principal amount of the mortgage and the interest upto the date of the suit awarded by the courts below, be also liable to pay interest on Rs. 1600/- only (being the part of the mortgage money which was to bear interest) from the date of the suit to the date fixed for payment by the trial court in its preliminary decree, at 12 annas per cent., per mensem and subsequent interest on the aggregate of the principal and interest mentioned above at 4 per cent., per annum upto the date of realisation.

I am informed that the plaintiffs respondents paid the sum of Rs. 3582/- in court on 29-7-1953, and so consider it just to direct that subsequent interest shall be allowed at 4 per cent., per annum on the entire amount as mentioned above upto that date, i. e., 29-7-1953, only, but thenceforward it shall be allowed on the amount which still remains to be paid.

The plaintiffs respondents will retain thecosts awarded to them by the trial court, but theparties will bear their own costs in the districtcourt as well as in this Court. I fix a period ofthree months from today for the redemption ofthe mortgage. Let a preliminary decree for redemption be drawn up accordingly.


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