1. On the 8th April 1896, under Exhibit A, the defendants mortgaged with possession nine items of property estimated to yield 1,000 paras of paddy which, after meeting the assessment and interest, left 126 paras to go in reduction of the principal. On the same day, by Exhibit B, the mortgagors leased back from the mortgagees the nine items on the terms that they were only to pay the mortgagees the 650 paras due for interest on the mortgage and retain 350 paras out of which they were to pay the assessment.
2. On the 1st September 1903 the mortgagors executed another mortgage in favour of the mortgagees, Exhibit C, for Rs. 3.300, of 19 items of property, of which items 1 to 9 were the subject of the mortgage with possession (Exhibit A).
3. The mortgage was expressly recited to be given as security for the principal sum of Rs. 3,300 and the interest thereon, and as to items 1 to 9 was with possession and as to the other items without possession. On the same day the mortgagors again took a lease of the nine items which wore included in both mortgages at a rental of 1,000 paras of paddy. On these facts the Subordinate Judge has held that the plaintiff is not entitled to a charge on the mortgaged properties for the arrears of interest due on the mortgage, although the mortgage is expressly stated to secure the interest as well as the principal, by reason of the fast that the mortgagors took the nine items on lease under Exhibit 1) and that the rent due by them for more than three years is barred. He, accordingly, only allowed the amount of three years' rent. The Subordinate Judge says the interest on the mortgage Exhibit D had been agreed to be paid out of the usufruct of the nine items comprised in Exhibit A, but I do not find any such provision in Exhibit C and I can see no reason for refusing to give effect to the provisions of the Exhibit 0 that the whole 19 items mortgaged should be security for the interest as well as the principal would, therefore, modify the decree accordingly. The similar ground of appeal as to the interest in Exhibit A was not pressed, and the other objections are untenable. The decree will be modified accordingly. The parties will pay and receive proportionate costs of the appeal.
4. The memorandum of objections is dismissed with costs. Time for redemption is extended to three months after the re-opening of the lower Court.
5. This appeal arises out of a suit for the realisation of debts secured by two mortgages, for the sale of the properties mortgaged, and for a personal decree against the mortgagors. The mortgages are Exhibits A and C on the record, dated 8th April 1896 and 1st September 1903, for the sums of Rs. 5,000 and Rs. 3,300 respectively. It has been found by the learned Subordinate Judge that the mortgages were supported by consideration, that they were executed for tarwad purposes, that there was necessity for their execution and that they are, therefore, binding as against the properties themselves and the interests of all the members of the tarwad. These findings are based on a consideration of all the evidence, including the circumstances that all the adult members (for the time being) of the tarwad, joined in the execution of the mortgages sued upon and that reasonable inquiries' had been made into the necessities of the tarwad. It is unnecessary to say more in regard to these findings than that the evidence fully supports them.
6. The mortgages sued upon purport to be usufructuary. But on the very days on which they were executed, the parties entered into agreements (Exhibits 13 and D respectively, dated 8th April 1896 and 1st September 1903), by which the usufructuary mortgagee purported to let the mortgaged premises to the mortgagor: and the latter purported thenceforth to hold possession of the mortgaged properties as tenant of the mortgagee. Thus the mortgagor continued in possession of the properties usufructuarily mortgaged, but in effect attorned to the mortgagee.
7. The question then arises, whether what the plaintiff was entitled to claim over and above the repayment of the principal mortgage amount was rent or interest. If it was rent then he could claim it in the present suit only for three years (the rest being barred under Article 110 of the Limitation Act); whereas if it is to be considered as interest the payment of which was charged upon the properties mortgaged, then Article 132 of the Limitation Act would apply and the claim would not be barred for 12 years.
8. The appellant does not press his claims under Exhibit A but relies on Exhibit C, which is explicit that the mortgaged properties were to be 'the security of these Es. 3,300 and the interest therefor.' Hence the interest is clearly a charge on the mortgaged properties and Article 132 applies- not Article 110; Kutii Umma v. Madhava Menem 11 M.L.J. 186. Is clearly distinguishable. The mortgagor can then disclaim liability for payment of any interest (or rent) on the properties, only on the basis that the mortgagee was in possession and he ought to have collected the rents, and that as he has failed to collect the rents and their collection (as rents) is barred by limitation, he ought to be made to account as though he had collected them.
9. This argument can be supported in India only on the basis of Section 76(6) of the Transfer of Property Act. I may say at once that it hardly lies in the mouth of the mortgagor or tenant (however he be styled) to say that the mortgagee must account to him on the basis of wilful default for not collecting the rent which he (the mortgagor) himself has failed to pay. If the reason of the rule is looked to, this prima facie view is strengthened. For the mortgagee in possession is made to account for what he ought to have (but has not) received, because, where the loss of the rents has to fall on either the mortgagor or the mortgagee and the mortgagee alone is responsible for the loss and had he used his best, endeavours to collect the rents they would have been collected and there would have been no loss on either the mortgagee or the mortgagor, in such cases it is but fair that the loss should fall on the mortgagee, lam speaking, of course, only with reference to the facts of this case and do not suggest that other aspects of the question are excluded. Now, here, in the first instance, by the non collection of rents there has been no loss to the mortgagor: the mortgagor has in fact been so far saved the payments. In Jnggeewundas Keeka Shah v. Ramdas Brijbookundas 2 M.I.A. 487 where under similar circumstances the mortgagee permitted the mortgagor to receive the rents instead of collecting them himself, he was held not to have forfeited his rights. Secondly, as I have already said, the mortgagor cannot be heard to say: 'True, I did not pay the rent that I was bound to pay. But it is the mortgagee who is at fault. He ought to have compelled me to fulfil my legal obligations.' This kind of virtuous indignation is out of place in the circumstances. Thus in Hughes v. Williams 2 Ves. 493: 33 E.R. 187 the Lord Chancellor (Lord Erskine) said:
Another circumstance that weighs with me is, that the mortgagor, if he knows the estate is under-let, ought to give notice to the mortgagee, and to afford his advice and aid, for the purpose of making the estate as productive as possible. If he communicated to the mortgagee plans of improvement in his contemplation, which were disappointed by the embarrassment of his affairs, the Court might take a stricter view of the mortgagee's conduct. In this instance, not only such notice was not given, but during this whole period of J 6 years, while the mortgagor was out of possession, he never stated that the estate was not managed as it might be (Jan the mortgagor lie by, not giving notice, that a greater rent may be made, and come afterwards, by way of penal inquiry, to charge the mortgagee with the effect of his own negligence? I agree to the principle that has been stated by the Solicitor-General that it would be dangerous to say, the mortgagee is not answerable except for fraud, and would contradict many decrees. If such gross negligence can be shown as comes up to the description of wilful default, he ought to be answerable for it.
10. Similar considerations tell against the mortgagor's contention in the present case, though the facts are not on all fours.
11. Finally, if the case must be decided with reference to abstract reasoning, it may well be urged that the mortgagee was only constructively in possession, if at all, and that for the period during which the mortgagee has not collected rents owing to the refusal of the mortgagor to pay the rents, there can hardly be said to have been any possession even constructive on the part of the mortgagee as between him and the person who was in actual possession without recognizing the rights of the mortgagee as landlord: Jvggeeuundas Keeka Shah v. Ramdas Brijbookundas 2 M.I.A. 487.
12. For these reasons, I agree in the order proposed by the learned Chief Justice.