1. This is an, appeal by the defendant Gaddhar Mal against the appellate judgment and decree of the learned District Judge, Bharatpur. It arises out of a suit for recovery of Rs. 3,300/- from the defendant.
2. The facts are that in the year 1917, Sona executed a usufructuary mortgage deed in favour of the defendant Gaddhar Mal for a sum of Rs. 4,200/-of certain immovable property situated in the town of Kumher in the erstwhile State of Bharatpur. On 17th July 1929, Gaddhar Mal defendant sub-mortgaged that property with possession to plaintiffs Kaluram and his son Girdhari for a sum of Rs. 3,400/-.
The interest was fixed in this later mortgage at the rate of As. -/12/6 per cent, per mensem and it was recited that the property under mortgage was fetching a monthly rent of Rs. 18/14/- at that time and it was stipulated that after the deduction of Rs. 18/14/- from Rs. 26/9/-, the interest on the mortgage money at the stipulated rate, a sum of Rs. 7/11/- per month would be payable to the mortgagee. It was further stipulated that during the pendency of the mortgage, if there is any increase or decrease in rent, it would go towards the payment of interest and would be credited in the ac-count.
The legal representative of Sona, the original mortgagor, brought a suit for redemption impleading both the original mortgagee and his son Girdhar Lal as defendants. This suit was decreed in the year 1946. On 17th September 1947, possession was taken by the original mortgagor from the defendants of that suit on payment of Rs. 3,552/8/- which was received by the mortgagees Kaluram and Girdhar Lal. This sum was the balance of the mortgage money after deducting the cost of the suit from the principal mortgage money of Rs. 4,200/-.
3. On 17th October 1949, the sub-mortgagees Kaluram and Girdhar Lal filed the present suit against Gaddhar Mal. It was alleged that the total interest on the sum of Rs. 3,400/- at the stipulated rate up to 17th September , 1947, the date of dispossession, came to Rs. 5,790/10/-. Thus, the principal plus interest on the said date, came to Rs. 9190/10/-. Out of this amount, Rs. 2,243/5/6 had been realized from the rent of the mortgaged property and a sum of Rs. 3,352/8/- had been realised in the redemption suit brought by the original mortgagor.
Thus, a sum of Rs. 3,394/14/6 remained due from the defendant till 17th September 1947. Thereafter interest at the stipulated rate up to the date of suit came to Rs. 657/8/- and the aggregate thus came to Rs. 4,032/6/6. Out of this amount, only Rs. 3,300/- were claimed and the balance was given up.
4. The defendant filed a written statement and his contention, which is relevant for the purposes of this appeal, was that the plaintiff had realised much more amount by way of rent than he had shown in his plaint. It was averred that the entire interest had been paid off from the rent realised by the plaintiff and that nothing was due to him. It was prayed that the suit be dismissed.
5. The learned Civil Judge, who tried the suit, held by his judgment dated 21st October 1951, that the plaintiff had not kept proper accounts of the realisations from the mortgaged property during the period of the mortgage, and it could not, therefore, be found out as to how much money they had realised by way of rent. He, therefore, dismissed the plaintiff's suit.
6. The plaintiff went in appeal and the learned District Judge, Bharatpur, agreed with the first Court so far as the finding about the accounts was concerned. He, however, partly decreed the suit inasmuch as he gave a decree for Rs. 1,523/6/-. This amount was found by deducting the sum of Rs. 18/14/-, the monthly rent prevailing on the date of the mortgage, from the sum of Rs. 26/9/-, the total amount of monthly interest at the agreed rate and multiplying the balance of Rs. 7/11/- by the period during which the property had been in mortgage with the plaintiff respondent.
7. The defendant Gaddhar Mal has come in second appeal.
8. It has been argued by Mr. R.A. Gupta on behalf of the appellant that both the lower Courts have held that the plaintiffs as usufructuary mortgagees, did not keep proper accounts of the income of the mortgaged property during the continuance of the mortgage. It was the fluty of the plaintiffs to keep proper accounts of the income of the mortgaged property from which it could be found out as to what amount by way of rent had been realised by the plaintiffs.
As they did not keep proper accounts a presumption should be raised against the plaintiffs and they should not be given any decree on account of interest. In his support, learned counsel for the appellant relied upon a Full Bench ruling of Allahabad High Court in the case of Mohammad Ishaq Khan v. Rup Narain Singh, AIR 1931 All 562 (A), and a ruling of the Privy Council in the case of Shadi Lal v. Lal Bahadur, AIR 1933 PC 85 (B), and that of Calcutta High Court in the case of Chen Shankar Lal Shankar Jani v. United Bank of India . Ltd., AIR 1955 Cal 569 (C) and of Allahabad High Court in the case of Mahadeo Tamoli v. Mohammad Siddiq, AIR 1949 All 189 (D).
9. Mr. P.C. Bhandari on behalf of the plaintiff respondent argued that at the time the mortgage deed in suit was executed, Transfer of Property Act of 1882, was not in force in Bharatpur State and therefore the provisions of the said Act and the authorities thereon did not apply to the facts of the present case. It was argued that the Transfer of Property Act, 1882, was applied to Bharatpur State in the year 1932, whereas the mortgage deed in suit was executed on 17th of July 1929.
It was further argued that according to the terms of the mortgage deed, the mortgagor had undertaken that a sum of Rs. 7/11/- per mensem would accrue a balance of interest after deducting the rent of Rs. 18/14/- from the total monthly interest of Rs. 26/9/-. It was further argued that if the defendant wanted to claim more money as having been realised by the plaintiff on account of rent, it was for him to prove that more money had been realized by way of rent by the plaintiff per month than the sum of Rs. 18/14/-, which was the rent obtaining at the time of the execution of the mortgage deed in suit. Under the circumstances, simply because no account had been held to have been kept by the plaintiffs, they could not be penalised by wiping off the entire balance of interest.
10. I have considered the arguments of both the learned counsel.
11. The points for determination in this appeal are, as follows :
1. Whether the provisions of Transfer of Property Act of 1882, especially those of Section 76 apply to the facts of the present case;
2. If the reply to the first point is in the negative, whether the plaintiffs were under a duty to keep proper accounts of the income of the mortgaged property during the continuance of the mortgage;
(3) Whether according to the stipulation in the mortgage deed, the plaintiffs had an absolute right to get Rs. 7/11/- by way of balance of interest per month irrespective of the fact whether they had failed to keep proper accounts.
12. I take up the first and second points together. I do not think that it can be positively held that the Transfer of Property Act, 1882, with or without amendments of 1929, had been in force in the erstwhile Bharatpur State before the year 1952. As the mortgage deed in question was executed in July 1929, it cannot, therefore, be said that Clause (g) of Section 76 of the Transfer of Property Act, 1882, which enjoins upon the usufructuary mortgagee to keep clear, full and accurate accounts of all sums received and spent by him as mortgagee, applies in terms to the present mortgage.
However, the principles enshrined in Section 76(c) are equitable principles and it has been held by a Full Bench of the Allahabad High Court in the case of Mohammed Ishaq v. Rupnarain Singh (A), refer-red to above that in the case of a mortgage deed executed before the Transfer of Property Act, 1882, came into force, the parties would be bound by the equitable principles governing mortgages and not by the strict language of any section of the Transfer of Property Act. It was observed :
''Where the parties expressly agree that the entire income, whatever it be, should be set off against the whole of the interest on the amount advanced, there is of course, no necessity for the mortgagee to keep any account. On the other hand where the intention is that the mortgagee should get the interest at an agreed rate, the primary consideration is 'the payment of the mortgage money with interest at that rate to the mortgagee, even though the income may fluctuate from year to year.
It would follow on general equitable principles that where there is a fixed rate of interest there should be a liability on the mortgagee to maintain proper and regular accounts and give credit for all the receipts and claim compensation for deficit or pay for the surplus. The liability of the mortgagee to render accounts was well recognized even before the coming into force of the Transfer of Property Act.'
In that case, the mortgage was of 1867, that is before the Transfer of Property Act, 1882, came into force.
13. In the case of Muhammad Sadiq v. Harakh Narain, AIR 1936 Pat 583 (E), also, the mortgage was of the year 1880, i.e., before the Transfer of Property Act, 1882, came into force. There the provisions of Section 76 of the Transfer of Property Act were applied on equitable principles. It was observed by Courtney-Terrell, C. J. :
'It is true that it was executed before the Transfer of Property Act came into operation, but the principles of Sections 76 and 77 of that Act with regard to the liability of the mortgagee to account are applicable since they are a mere codification of the law in existence before the Act.'
The other learned Judge Dhavle J. observed, as follows :
''Even before the Transfer of Property Act mortgagees in possession were liable to account on much the same lines as we find in Section 76(h).'
14. In the case of Mahado Tamoli v. Mohammed Siddiq (D), referred to above, it was held that
'Section 76 applies to the case of a usufructuary mortgage and if possession is delivered to the mortgagee on the execution of the mortgage deed in pursuance of its terms, the mortgagee can be said to have taken possession during the continuance of the mortgage. * * * The possession in such a case would begin after the mortgage deed had come into operation, and every moment in between the time of the mortgage deed coming into operation, and its discharge would be a part of the period during which the mortgage continues. The mortgagee was therefore under a statutory liability to maintain accounts of the income from the usufruct of the property mortgaged.'
15. In the case of Shadi Lal v. Lal Bahadur (B), Their Lordships of the Privy Council observed, as follows:
'As to interest, it was urged that the High Court ought not to have disallowed the appellants claim in toto, and they ought to have in any event directed an inquiry into the accounts. Their Lordships are 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 him 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 as already stated, was Rs. 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 circumstances their Lordships think that the High Court were right in disallowing the appellant's claim for interest.'
16. In the last two cases, there is no doubt that the provisions of the Transfer of Property Act applied in terms but as was held by the Full Bench in the case of Mohammed Ishaq Khan v. Rup Narain Singh (A), and in the case of Muhammad Sadiq y. Harakh Narain (E), referred to above, that would make no difference, because the principles laid down in Section 76 of the Transfer of Property Act are general equitable principles, which govern the mortgages executed even before the Transfer of Property Act came into force.
17. Both the lower Courts have concurrently held that the respondent failed to keep clear, full and accurate accounts of the receipts as mortgagee and have proceeded to hold that the accounts by the respondent were fabricated and no reliance could be placed on them. The respondent having thus failed to discharge his duty as a mortgagee of keeping clear, full and accurate accounts of his receipts from the mortgaged property, he was not entitled to claim any interest, unless there is any such term in the mortgage deed which would entitle' him to claim interest in spite of the fact that he has not kept any clear, full and accurate account of his receipts from the mortgaged property. This brings me to consider Point No. 3.
18. Point No. 3 : It has been argued by Mr. Bhandari on behalf of the respondent that according to the stipulation in the mortgage deed, the mortgagor was to pay a balance of Rs. 7/11/- per month on account of interest unless there was evidence to prove that by the receipts from the mortgaged property, the entire monthly interest had been paid or over-paid. It was argued that it was for the mortgagor to prove that the receipts during the continuance of the mortgage, exceeded the interest.
As no such evidence was produced, the learned District Judge was justified in giving a decree to the plaintiff at the rate of Rs. 7/11/- per mensem. which was the balance of interest according to the rent obtaining on the date or the morgage.
19. I have very carefuly read the mortgage deed. The stipulation on which Mr. Bha da(sic) has relied on when translated into English, reads as follows:,
''Between me, the mortgagor, and the mortgagee this stipulation has been made that interest would be paid at the rate of As. -/12/6 per cent, per mensem, the total amount of which for a month comes to Rs. 26/9/-. The rent of all the four shops, the house and the upper room comes to Rs. 18/14/-per month. After deducting this rent of Rs. IS/14/-, the balance of interest per month, would come to Rs. 7/11/-. If there is any increase or decrease in rent during the mortgage it would be set off in accordance with the income.'
It would thus appear that although at the time of the mortgage, there was a deficit of Rs. 7/11/- per month and it had been stipulated that this deficit could be claimed by the mortgagee, yet there is a further stipulation that if there is any increase or decrease in rent during the mortgage, it Would be set off according to the income. The mortgage deed, therefore, does not give an absolute right to the mortgagee to claim the balance of Rs. 7/11/-per month.
It has been made dependable on the balance remaining the same throughout the period of mortgage but if the balance were reduced or increased, the reduced or the increased amount was to be credited. The case is not like one where no interest has been fixed and it is stipulated that the entire income whatever it is, would go towards the payment of, interest.
If that were so, the principles embodied in Section 76 of the Transfer of Property Act, 1882, would have not been applicable and there would have been no necessity to the mortgagee to keep any accounts. As, however, neither the set off of the entire income has been stipulated, nor has it been stipulated that a fixed sum would have to be paid by way of interest whatever the income of the property, it was the duty of the mortgagee to keep clear, full and accurate accounts of his receipts so that the Court might have been in a position to know as to what exact sum has been realized by the mortgagee from the income of the mortgaged property. As the mortgagee by his own act placed the Court in a position, where it cannot find out what was the exact income from the mortgaged property during the period of the mortgage, the Court is unable to ; allow any amount on account of interest to the plaintiff respondent.
20. I do not think that the judgment of the learned lower appellate Court is correct.
21. The appeal is allowed, the decree of thefirst appellate Court is set aside and that of the firstCourt restored and the plaintiff's suit is dismissedwith costs to the contesting defendant throughout.