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immani Seshayya and ors. Vs. Dronamraju Lakshminarasimha Rao Pantulu (Dead) and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1930Mad160; (1929)57MLJ800
Appellantimmani Seshayya and ors.
RespondentDronamraju Lakshminarasimha Rao Pantulu (Dead) and ors.
Cases ReferredBrij Kumar Lal v. Majlis Sahai
Excerpt:
- - the fixing of a term is clearly not inconsistent with the transaction being a mortgage. if the purpose failed or the term was not carried out, what was the result? all that it enacts is, that the rule of appropriation mentioned in section 76(h) shall not in certain cases hold good. clearly not. it was urged for the plaintiff that the mortgagee failed to pay the beriz or revenue for 9 years from faslis 1295 to 1303 and that the amount allocated in the deed for that purpose should also be calculated against the mortgage debt. not only has he failed to produce the decrees, but it is admitted that they were passed for much larger amounts than the revenue payable for the lands in question, he asks us to assume without evidence first, that the defendant made default and secondly, that.....venkatasubba rao, j.1. this is a letters patent appeal from the judgment of mr. justice devadoss and raises an important question in regard to the effect of a certain transaction evidenced by two documents, dated the 2nd may, 1865. the two deeds may be treated as practically one and the purport of the arrangement is shortly this. a sum of rs. 2,200 is advanced to the borrower, who agrees to pay an equal sum as interest thereon. the lender is put in possession of certain lands belonging to the borrower and as between the parties the annual profits are estimated to be rs. 240. the lender is required annually to pay rs. 100 for the revenue and village expenses, appropriate rs. 80 towards the mortgage debt and pay the balance of rs. 60 to the debtor. it is further provided that after the debt.....
Judgment:

Venkatasubba Rao, J.

1. This is a Letters Patent Appeal from the judgment of Mr. Justice Devadoss and raises an important question in regard to the effect of a certain transaction evidenced by two documents, dated the 2nd May, 1865. The two deeds may be treated as practically one and the purport of the arrangement is shortly this. A sum of Rs. 2,200 is advanced to the borrower, who agrees to pay an equal sum as interest thereon. The lender is put in possession of certain lands belonging to the borrower and as between the parties the annual profits are estimated to be Rs. 240. The lender is required annually to pay Rs. 100 for the revenue and village expenses, appropriate Rs. 80 towards the mortgage debt and pay the balance of Rs. 60 to the debtor. It is further provided that after the debt is discharged in 55 years in the manner set forth, the creditor is to surrender possession of the land to the borrower. The only remaining material clause is, that if the lender fails to pay Rs. 60, he shall be bound to relinquish a part of the land in proportion to that sum. It is evident that the term was fixed as 55 years, because at the rate of Rs. 80 it would take that period to discharge the total sum of Rs. 4,400. The right, title and interest of the borrower in the lands in question were sold in Court auction and the plaintiff having become the purchaser, the sale in his favour was confirmed on the 1st March, 1882. It is not denied that since then the annual payment of Rs. 60 was never made to him. I may observe, that it is alleged on behalf of the defence that notwithstanding the Court sale, the lender continued to pay Rs. 60 to the original debtor. But this is not material, as it is admitted that the lender had notice of the Court sale and the alleged payments may be therefore ignored. The plaintiff has treated the transaction as a. mortgage and has filed the suit, from which this appeal arises, as one for redemption. The suit was filed in 1915. It was contended that it was premature as the term of 55 years would expire only in 1920. The District Munsif in whose Court it was filed disposed of the suit in 1919.

2. The appeal to the Subordinate Judge was decided in 1921. On the expiry of the term, that is, in 1920, the defendant gave up possession of the land to the plaintiff. The question, therefore, whether the suit was premature or not, is not of much importance in so far as the action relates to the possession of the property.

3. The same point, however, arises in another form, when did the debt become discharged? For, not only does the plaintiff contend that his right to redeem accrued when the debt; was paid off, irrespective of the period fixed, but he further urges that the defendant became liable from that moment to account for the profits from the lands. He contends, in short, that the debt became discharged long before the expiry of 55 years, the period fixed. He maintains that the defendant, who, contrary to the terms of the arrangement, retained in his hands the sum of Rs. 60 was bound to apply that sum in reduction of the mortgage debt. If that was done, the debt would, of course, have been discharged long before 1920. The question to decide is, was the defendant so bound?

4. The point to be first decided is, is the transaction a lease or a mortgage? For, on this will depend whether the plaintiff's contention can prevail or not.

The only guiding rule that can be extracted from the cases on the subject is, that the intention of the parties must be looked into, and that when once you get a debt with the security of land for its repayment, then the arrangement is a mortgage by whatever name it is called'.' Ghose on Mortgages, 5th Edition, Vol. I, page 102. ,

5. Let us now examine the terms of this arrangement. The deed calls the advance a loan and provides for interest upon it. It refers to the discharge of the debt and prescribes a method by which it may be gradually paid off. The obvious intention of the deed is to treat the property as security for the amount advanced together with interest upon it. In the face of these provisions, can the sum advanced be regarded as a premium or bonus paid for the use of the land? Generally, where a lessee pays a premium to his lessor, the intention is not that it shall be repayable. Every recital in the deed in question shows that the parties intended that the money was to be repaid and that the land was to be treated as security for repayment. The fixing of a term is clearly not inconsistent with the transaction being a mortgage. Mr. Lakshmanna, for the defence, relies on the fact that the deed is described as a 'cowle' and that the word means a lease. Assuming that he is right, we must still look at the substance of the transaction and not be guided merely by the word, which the parties chose to use, in describing the instrument. But, as a matter of fact, the treatises to which we have been referred show that the word 'cowle' has a much wider signification and may mean 'a contract' or 'an agreement'. There is then the further fact that the deed stipulates that in the event of the creditor failing to pay Rs. 60 the debtor may insist upon possession being given of a share of the land in proportion to that sum. Is it conceivable that if the parties intended the arrangement to be a lease, they would have provided that the lessee was in a certain event to deliver up a part of the property?

6. This leads me to the main question in the appeal. In the case of a mortgage with a period fixed, where the mode of repayment is prescribed, can the debt never and in no circumstances become discharged, before the expiry of that period? Mr. Lakshmanna has strongly contended that, in such a case, the clause fixing the term is an essential part of the contract and that the mortgagor must wait till the period comes to an end. Mr. Varadachari, for the plaintiff, concedes that in a case of this kind it is not open to the mortgagor to redeem the mortgage before the close of the period by tendering the amount. But, what he strongly urges is this, notwithstanding the period, if the mortgagee gets into his hands, from the usufruct of the property, a sum of money belonging to the mortgagor, it is the bounden duty of the former to apply that sum in reduction of the mortgage debt. According to Mr. Lakshmanna, the true principle is, that the mortgagee, while remaining liable for the sums received by him, is not bound to apply them in discharge of the mortgage debt: in other words, taking the present case, the debt could be discharged only in the manner provided in the deed and it could not be treated as paid off before the expiry of the full 55 years. The defendant's liability, Mr. Lakshmanna says, is merely to separately account for the sums retained in his hands contrary to the terms. In my opinion the sounder and the more equitable rule is that for which Mr. Varadachari contends.

7. Section 62 of the Transfer of Property Act runs thus:

In the case of a usufructuary mortgage, the mortgagor has a right to recover possession of the property,--

(a) where the mortgagee is authorised to pay himself the mortgage-money from the rents and profits of the property,--when such money is paid;

(b) where the mortgagee is authorised to pay himself from such rents and profits the interest of the principal money--when the term, if any, prescribed for the payment of the mortgage money has expired and the mortgagor pays or tenders to the mortgagee the principal money or deposits it in Court as hereinafter provided.

8. The present case is covered by Clause (a). The words used are 'when such money is paid.' They mean in the context 'when such money is paid from the rents and profits'. The question to decide then is, when did the mortgage money become paid off? The clause in question does not say that a different rule is to be applied, when by the contract a term of years is fixed. On the contrary, it seems to embody the principle, that in no case can the mortgagee retain possession, after the debt itself is discharged from the usufruct. It is true that where a period is fixed as a material part of the contract, the mortgagor cannot be at liberty by any act of his own to get rid of the stipulation, that is to say, he cannot, at his will, curtail the period by tendering the money before the prescribed date. The case cited by Mr. Lakshmanna, such as Sri Raja Setrucherla Ramabhadra Raju Bahadur v. Sri Raja Vairicherla Surianarayana Raju Bahadur I.L.R.(1880) M. 314 and Aga Muhammadally Beg v. Chdndragiri Venkatappayya decide : (1918)35MLJ287 , no more than this. What the law will prevent is if the mortgagor, before the prescribed period, seeks to discharge the debt in a manner not contemplated by the contract, that course he will not be permitted to adopt. But the question here arises in an entirely different form. A portion (Rs. 60) was by agreement of parties excluded from the usufruct for a specific purpose. If the purpose failed or the term was not carried out, what was the result? The part excluded reverted without any further act or agreement and became again profits. The mortgagee would then be liable to apply it in reduction of the debt. Section 76(h) enacts that the mortgagee shall apply the usufruct, first in reduction of the interest, then of the principal. This, he is bound to do under the law; so that, if a part of the profits initially excluded was not applied as directed, it became usufruct as a matter of course and without a special contract to that effect. The proper way then of viewing the question, is: Has the part excluded, in the events that have happened, regained its character of rents and profits? If so, the mortgagee has no option but to appropriate it to the mortgage debt. Jaijit Rai v. Gobind Tiwari I.L.R.(1884) A. 303. is a very instructive case on the point and gives effect to the principle as I have stated it. Brij Kumar Lal v. Majlis Sahai (1916) 34 I.C. 899 also supports the view I have taken. I cannot follow Mr. Lakshmanna's contention that Section 77 of the Transfer of Property Act supports him. In the first place, that section refers to a case where there is a contract, that the receipts from the property shall be taken in lieu of the interest and 'defined portions of the principal'. I doubt if the section applies to the present case at all. Mr. Lakshmanna says that out of the sum of Rs. 80 mentioned in the deed, we must allocate Rs. 40 to the principal and Rs. 40 to the interest. Granting we do so, how does that satisfy the term regarding 'defined portions of the principal'? The relation is not constant; the ratios 40: 2,000 and 40: 1,960 and 40: 80 are not the same. In other words, the principal gets gradually reduced, whereas Rs. 40 is a constant figure. But assuming that this is not a sound objection, how does Section 77 avail the defendant? All that it enacts is, that the rule of appropriation mentioned in Section 76(h) shall not in certain cases hold good. I am therefore of the opinion that the plaintiff's contention must prevail, namely, that the sum of Rs. 60 should be debited against the mortgage debt and the account taken accordingly. It is obvious that in that event the debt became wiped out long before 1920, that is, before the expiry of the period fixed.

9. That this is the correct principle will become apparent if an analogous case be considered. Let us suppose that the revenue on this land had been remitted by the Zamindar and the sum representing that revenue had annually been left in the hands of the defendant. Can it be successfully maintained that it is not a part of the usufruct, which the mortgagee was bound to adjust, against the mortgage debt? Clearly not. The same principle applies to the facts of the case.

10. Next, does the existence of the special clause, namely, that if the mortgagee fails to pay Rs. 60, he shall be bound to relinquish a proportionate part of the land, make any difference? In my opinion, it does not. The mortgagor was given an option and it was open to him not to avail himself of that term. Had the plaintiff elected to take advantage of this clause, he would have obtained possession of a part of the land and no further question would arise. Similarly, it was open to the mortgagor to have sued for the sum of Rs. 60 and the defendant could not in that event have pleaded that he applied the sum to reduce the mortgage debt. This, however, did not happen in this case and the mortgagor not having exercised his option in that way, it is open to him now, to ask that the same shall be adjusted against the mortgage debt. Lastly, in regard to this part of the case, Mr. Lakshmanna contended that what the plaintiff purchased at the Court auction did not include the mortgagor's right to the annual payment of Rs. 60. This is an unfounded contention and does not require serious notice.

11. I now turn to a contention relating to the revenue. It was urged for the plaintiff that the mortgagee failed to pay the beriz or revenue for 9 years from Faslis 1295 to 1303 and that the amount allocated in the deed for that purpose should also be calculated against the mortgage debt. This is a question of fact, but neither the District Munsif nor the Subordinate Judge has given a finding on the point. under Section 103 of the Code of Civil Procedure we have ourselves examined the evidence and find it difficult to uphold the contention of the plaintiff. He alleges that the Zamindar sued him, as the defendant made default, that three suits were filed, that one was dismissed, two were decreed and that he thereupon paid the,,sums mentioned in the two decrees. Not only has he failed to produce the decrees, but it is admitted that they were passed for much larger amounts than the revenue payable for the lands in question, He asks us to assume without evidence first, that the defendant made default and secondly, that the suits filed were in respect of the cist which the latter was bound to pay. We cannot on the material before us record a finding in his favour. There was not a single demand made on the defendant for the return of the money. If the plaintiff paid what the defendant was bound to pay, why did he not send a demand for the amount from Fasli 1303 (1893) to 1915, the date of the suit?. We must hold that the plaintiff has not made out this part of the case. Then remains the question, on what footing is the account . to be rendered by the defendant? I have held that he was bound to adjust the sum of Rs. 60 retained in his hands from 1883 against the mortgage debt. In finding out when the mortgage debt became discharged, interest shall be calculated on each sum of Rs. 60 as it became payable, at 2 per cent. per annum (that is, slightly in excess of the contract rate, namely, 1 9|11 per cent.) After the mortgage debt is on this calculation found to be fully paid off, the defendant shall be liable annually for Rs. 140 (Rs. 240 less Rs. 100 payable for revenue, etc.) with 6 per cent. per annum to the year 1913. In the last mentioned year, the plaintiff called on the defendant to render an account;. and from then, to the date of the delivery of possession (1920 or 1921), the defendant is liable to account on the basis of the actual profits received and not estimated rent, with 6 per cent. per annum. These are my directions in regard to the taking of accounts, In this connection I may observe that Mr. Varada-chariar has contended that from the very date the debt has become paid off, he is entitled to hold the defendant account-able for actual profits received. I do not agree with this contention. Although the mortgage debt has become extinguished, the possession of the defendant cannot be said to be wrongful till he nefused to surrender the land after demand was made.' What has actually happened was not what at the outset was in the contemplation of the parties; but so long as the defendant's possession is not wrongful, I fail to see why the parties should not be held to be bound by the terms of the contract. The arrangement, as I have held, is a mortgage and not a lease, but it does not follow from that, that the defendant is liable to pay during the prescribed period of 55 years more than the estimated profits of the land. It was hinted in the course of the argument, that if an account 'was taken on the basis of actual profits, the figure might amount to some tens of thousands of rupees. I do not think, that either in law or in equity, that can be the measure of the defendant's liability, when it is borne in mind that his act was not wrongful. It must be further remembered that the original arrangement involves that the mortgagee shall get no higher interest than 1911 per cent. per annum, an absurdly low rate. Having regard to all the circumstances, the most just and proper order seems to be what I have made.

12. The decree we pass is a preliminary decree. I direct the Lower Court to pass the final decree in the light of the observations and directions contained in this judgment.

13. Each party shall bear his costs of this Letters Patent Appeal.

Reilly, J.

14. We have heard very long arguments in this case, but it appears to me that the main question for decision is a comparatively simple one. The terms of the documents, Exhibits A and B, have been explained in the judgment just delivered by my learned brother. It is not disputed that the Rs. 60 a year, which the defendants had to pay to the mortgagor, has not been paid to the plaintiff since he purchased the mortgagor's interest in Court-auction. Since this litigation started, possession has been given by the defendants to the plaintiff, and we are told that that was done in 1920 or 1921. The main question before us therefore is whether the Rs. 60 a year, which the defendants and their predecessors had to pay to the original mortgagor, should be adjusted as it fell due against the mortgage-debt or must be recovered from the defendants by the plaintiff otherwise than in connection with the mortgage transactions.

15. Those transactions have been discussed during the main pant of the argument before us as if they were mortgages, and I will deal with them first on that footing. The two mortgages represented by Exhibits A and B may be conveniently treated as one and the plaintiff be referred to as the mortgagor. I think it will be useful to look at the matter in the first instance as if there were no term of years mentioned in the mortgage documents, as if there was nothing said about 55 years, or about possession being surrendered at the end of the year Ananda or the year Siddarthi. The transaction would then be an usufructuary mortgage for Rs. 4,400, which was to be paid. off by Rs. 80 a year out of the usufruct being applied to the reduction of that amount of Rs. 4,400, which represented both the principal and the interest, and Rs. 60 out of the usufruct was to be paid by the mortgagee to the mortgagor for his own purposes. If that were the agreement into which the parties entered and from the year 1882 the Rs. 60 was not paid to the mortgagor, what would be the position? Mr. Lakshmanna for the contesting defendants maintains that, although the mortgagee in those circumstances might have kept the Rs. 60 in his own hands instead of paying it over to the mortgagor, if the mortgagor wanted to recover the Rs. 60 for any year, he must do so quite apart from the mortgage transaction. But on what principle could a mortgagee in possession be heard to say that he had in his hands money belonging to the mortgagor, which he had received in his capacity as mortgagee out of the income of the mortgaged property in his possession but that he refused to adjust that against the mortgage-debt and that he would hold it until the mortgagor sued him for it in some proceedings unconnected with the mortgage. I do not think it is necessary in this connection to drag in the idea that in those circumstances the mortgagee would be trustee for the mortgagor in respect of the mortgagor's money which he kept in his hands, though no doubt he would be so. It is enough, I think, to remember that the essence of a mortgage transaction :is that the mortgage is security for the mortgage-debt. When the mortgagee has obtained payment of his debt, the security is done with: there is no purpose left in it. Let us suppose that we reach a stage where the mortgage-debt except Rs. 480 has been paid off by the application of Rs. 80 a year out of the income and at the same time by his failure to pay the Rs. 60 a year to the mortgagor the mortgagee has Rs. 480 out of the income from the mortgaged property in his hands. It appears to me almost absurd to suggest that in such circumstances the mortgagee could say 'The mortgage-debt still remains to the extent of Rs. 480. I have got the mortgagor's money to that extent in my hands, but I intend to keep that entirely separate.' It has been suggested that the mortgagee could do that, because he could have got the Rs. 60 a year in his hands not in accordance with the terms of the contract between the parties but in violation of the terms. Surely we cannot allow a, party to plead his own wrong in that way. In my opinion it is clear on principle that, when the mortgagee has paid himself the mortgage-debt out of the mortgaged property in his possession, he cannot maintain that the mortgage is still in force. That principle is recognised in Section 62(a) of the Transfer of Property Act, and it was enforced in Jaijit Rai v. Gobind Tiwari. That case is interesting because it enforced the principle in circumstances somewhat more marked than those of the present case. In that case, the income of the property was to be applied by the mortgagee to the payment of the interest on the mortgage-debt except a certain amount which he was to pay every year for the mortgagor's purposes. The principal of the mortgage-debt was to be paid by the mortgagor only in one lump sum. The mortgagees failed to apply the part of the income which he was bound under the contract to have applied to the mortgagor's purposes, and the Court held that that part of the income which was the mortgagor's money and which the mortgagee had kept in his hands instead of applying to the mortgagor's purposes must be adjusted against the principal of the mortgage-debt even though according to the contract the principal could only be paid off in one lump sum. If the proper principle is that the mortgagor's money which the mortgagee retained in his hands in that way must be applied to reduce the mortgage-debt even in such a case as that, much more it must be so applied in a case where there is no stipulation that the principal can be paid only in one lump sum but it is to be paid out of the income of the mortgaged property. The decision in Jaijit Rai v. Gobind Tiwari I.L.R.(1884) A. 303 has never been overruled, nor has dissent ever been expressed from it.

16. Now does the fact that in this case a term of 55 years is mentioned make any difference in the application of this principle? We are not concerned in this case with any question of redemption, because in this transaction the mortgagor could never redeem by paying the balance of the mortgage-debt to the mortgagee; his right was only to recover possession when the mortgage-debt was satisfied. For myself I doubt whether in these documents, Exhibits A and B, any term of years in the strict sense was really intended. I doubt whether the meaning is more than that the Rs. 4,400 was to be paid off out of the income of the property at the rate of Rs. 80 a year and so would be cleared off in 55 years ending with Sid-darthi. Rut, even if the mention of the term of 55 years ending with Siddarthi means more than that, how does it really affect the mortgagee's position in the circumstances that have arisen? If the amount of the mortgagor's money which the mortgagee retained in his hands has to be adjusted against the mortgage-debt, then at a time long before the expiry of the 55 years the mortgage-debt must have been satisfied. From that time, until the end of the 55 years, in what capacity would the mortgagee claim to remain in possession?--obviously not as a mortgagee to whom any part of the mortgage-debt was still due. I think the result of that is, that, if this transaction is a mortgage and nothing else, the Rs. 60 must clearly be adjusted as it fell due against the mortgage-debt until it was discharged and that the plaintiff must be held to have been entitled to recover possession from the date on which the debt was so discharged.

17. There appears to me to be only two ways in which the defendants could modify or get out of that result. If it were permissible, as it is not permissible, for them to represent that, although the parties entered in the documents Rs. 4,400 as the amount of the principal and interest and agreed that that should be paid off by taking Rs. 80 out of the income of the property which they took for purposes of the transaction at a conventional and fixed sum of Rs. 240 a year, they really knew that the income of the property would be much more than that, as indeed it is admitted before us, as it has turned out to be, and that they intended that the total of the mortgage-debt, principal and interest, should be more than Rs. 4,400, then they might be able to say that, even when the Rs. 60 had been adjusted as I have suggested, there would still be more due to them and that the debt had not really been discharged. But it is obviously not permissible for them to say in the face of the documents that the real transaction was for some larger amount than Rs. 4,400, that the real principal and interest together were something more than Rs. 4,400, though that would only include interest at the comparatively low rate of 2 per cent. If they cannot say that, then the only other way in which they can avoid the result indicated is by showing that this transaction was or included a lease. It cannot be contended and Mr. Lakshmanna has not seriously contended that the transaction did not include a mortgage. The very language of the documents precludes any such contention. But Mr. Lakshmanna has contended that here we have a mortgage which partakes of the nature of a lease. For myself I think that in this country that form of language is only likely to lead to confusion. We can have a transaction which is a mortgage and have a transaction which is a lease; we can have a transaction which is a mortgage and also a lease, as in the case of a Malabar kanom. But I do not think that in this country there is any real profit or use in speaking of a mortgage as partaking of the nature of a lease, as if we could have a mortgage with a tinge or flavour of a lease in it. What we have to find out is, whether the transaction included a lease. Mr. Lakshmanna has drawn attention to the fact that in Exhibit A the document is described as a cowle. 'Cowle' is a word which may be used for a lease but may be used for other transactions. Mr. Lakshmanna has also pointed out that in the early part of Exhibit A there is mention of the rent of the property as being Rs. 240 a year. But nothing can be got from that, because that is only a statement showing the income which the mortgagor was getting when he was in possession. If we are to find that this transaction includes a lease, we must ask 'Where is the rent?' Ordinarily there will be rent either paid in advance as a premium or reserved to be paid periodically. Now the Rs. 4,400 cannot possibly be represented to be a premium, because it is described as a debt to be repaid. Then, apart from that, the only amount which could be represented to be rent is the Rs. 60 a year to be paid to the mortgagor. That is not described as rent, and, when we remember the provision that, if the Rs. 60 a year is not paid to the mortgagor, he may recover a quarter of the property and keep it in his possession, it is obvious that Rs. 60 also was not rent. If it were, we should get the curious result that the lessor might recover a quarter of the property from the lessee, if the rent was not paid, and then the lessee would be able to keep the whole of the remaining three-fourths in his possession without any rent being due from him. I think it is quite clear that this transaction does not include a lease. I may remark that, even if it were definitely called a lease, that would not be conclusive in the matter as is shown by Brij Kumar Lal v. Majlis Sahai (1916) 34 I.C. 899 and other cases which deal with what are called zuripeshgi leases in Bengal.

18. Mr. Lakshmanna has also laid stress upon the special provision by which the mortgagor could recover a quarter of the property if the sum of Rs. 60 is not paid to him in any year, and he contended in one part of his argument that that was the only remedy which the mortgagor had if the Rs. 60 was not pad. I think it is quite clear that that provision only gave the mortgagor an option to recover a quarter of the property if he wished. That did not affect the position and liability of the mortgagee in respect of Rs. 60 if he did not pay it to the mortgagor and the mortgagor did not choose to exercise that option.

19. So far I have referred only to the Rs. 60 a year, which had to be paid to the mortgagor. Under Exhibit A, the mortgagor had also to pay Rs. 95 a year as kattubadi to the Zamindar. It is represented for the plaintiff that for several years more than 20 years ago the mortgagee did not pay that to the Zamindar and that he himself was forced by decrees of Court to pay it. That amount of kattubadi, which he had to pay, he wishes also to set off by adjustment against the mortgage-debt. It is clear that the mortgagor is not concerned with any kattubadi not paid by the mortgagee to the Zamidar unless he himself was forced to pay it or is still liable to pay it. He is certainly not still liable to pay anything to the Zamindar on that account for the years mentioned, and, if he wishes to recover by adjustment aganst the mortgage-debt any kattubadi by himself, he must prove that he had to pay it. He has not troubled to produce the decree under which he says he was forced to pay kattubadi for 6 years; and the only evidence which he has produced, Exhibit E series, though it shows that he had to pay certain amounts under decrees, larger than the amount of the kattubadi in the years concerned, does not show that it was the kattubadi on this land, with which we are concerned, that he had then to pay. I agree that he has not made out his case that he had to pay kattubadi to the Zamindar on this land.

20. I agree that Rs. 60 a year from the date of the plaintiff's purchase should be adjusted against the mortgage-debt with interest at 2 per cent, per annum as proposed by my learned brother. On the question how the account between the parties should be taken after the mortgage-debt is found to have been discharged in that way, I am not prepared to dissent from that view that it is only Rs. 240 a year minus the kattubadi and the village payment (making Rs. 100 a year in all) which should be credited to the plaintiff at 6 per cent. per annum until the date when he demanded possession. Mr. Varadachariar has contended that from the date when the mortgage-debt was discharged, the mortgagor is entitled to the full profits of the property (minus of course the kattubadi and the village payments) on the ground that, when the mortgage-debt was cleared off, the mortgage transaction had come to an end. As I have said, in one sense it is quite clear that the mortgage transaction had come to an end at that point of time. But it cannot be said that the relation between the mortgagor and mortgagee had entirely ended with that discharge or that the mortgage transaction left no result behind it. Certainly as there was no demand from the plaintiff for recovery of possession until 1913, it cannot be said that the mortgagee's possession from the date of discharge to 1913 was wrongful or that it was adverse to the mortgagor. And it is only in his position as mortgagor that the plaintiff has the longer period of 60 years under the law of limitation to recover possession. I think we can properly say, that, as the mortgagee's possession originated in the mortgage and remained in a sense that of a mortgagee until there was a demand for recovery from the mortgagor, the conventional income, which the parties had agreed between themselves, should remain in force as the income of the property to save them the trouble of ac-counting, should be considered to remain in force until there was a demand for recovery. After that date, of course, the plaintiff is entitled to recover the full profits of the property until the date on which possession was given. I agree therefore in all respects with the order proposed by my learned brother.


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