Kuppuswami Ayyar, J.
1. The appellant before Court is the defendant. The appeal arises out of a suit for redemption. The properties in dispute were mortgaged on 1st May 1930 by one Srikanta Ayyar in favour of the appellant for Rs. 800. Under the terms of the document the property was to be enjoyed by the mortgagee in lieu of interest. The mortgage amount was payable in three years and in default of payment at the end of three years interest at 12 per cent, per annum was payable in addition. The property was leased subsequent to the mortgage by the mortgagee to the mortgagor and another. That was in 1930 itself. The rent was in arrears and a suit had to be filed in 1936 and decree obtained on 25th March 1937. In the meanwhile on 30th May 1935 the mortgagor Srikanta Ayyar sold the property to one Subramania Ayyar for Rs. 1000 and directed him to redeem the mortgage by payment of Rs. 800. Two years later subsequent to the passing of the decree for rent on 1st April 1937, Subramania Ayyar sold the property to the present plaintiff for the same amount, namely, Rs. 1000 directing her to redeem the mortgage by paying Rs. 800. She deposited Rs. 800 into Court under Section 83, T.P. Act. The appellant contended that the amount tendered was not sufficient as the amount due under the decree for rent as also interest at 12 per cent, per annum from the expiry of three years should also be paid. Hence the suit for redemption.
2. The first Court found that the claim for rent was only a personal one which could not be claimed in a suit for redemption of the mortgage. But it found that interest was payable under the mortgage and the same should be paid before redemption; but reduced the rate of interest to 6 per cent, and directed the redemption on payment of the principal amount and interest at 6 per cent, from the date of default. The learned District Judge on appeal held that the liability to pay interest was only a personal one and consequently no amount can be claimed in a suit for redemption in respect of that amount. He further held that the penal clause was not enforceable and found that the tender was valid and directed redemption on payment of Rs. 800. Hence the appeal.
3. The only point for consideration in the appeal is whether the defendant can claim payment of any and what amount as interest payable under the terms of the usufructuary mortgage deed before the property is redeemed. With regard to the finding of the learned District Judge that the covenant for payment of interest was only a personal one it has to be pointed out that in Gangaram v. Nathasing A.I.R. 1924 P.C. 183 it was held by the Privy Council that in the absence of a contract to the contrary there is a charge for interest the payment of which is provided in the mortgage deed. There is absolutely nothing in the terms of the document that there is a contract to the contrary. It is specifically stated that from the expiry of three years fixed for payment of principal, interest at 12 per cent, was payable and that the mortgagee was to enjoy the property in addition to the right to recover interest. I am not able to find any re-cital in the document to indicate that it was the intention of the parties that there was to be no charge for interest. The case reported in Bysani Madhava Chettiar Charity Fund v. Krishnaswami Chetty A.I.R. 1923 Mad. 71 has no application to the facts of this case. There, there was a specific recital in the document that redemption was to be effected on payment of the principal amount. The use of the expression 'principal amount' in the clause dealing with the amount payable for redemption took the case out of the principle enunciated in Gangaram v. Nathasing A.I.R. 1924 P.C. 183. The ruling in Pawankumar Chand v. Dulari Kuar A.I.R. 1920 Pat. 170 was relied on for the respondent. But it was prior to the decision of the Privy Council in Gangaram v. Nathasing A.I.R. 1924 P.C. 183. The learned District Judge was therefore wrong in finding that the security cannot be enforced in respect of the interest provided in the document.
4. The next point for consideration is whether it is a penal clause and whether the mortgagor is entitled to be relieved to any and what extent. The clause provides for payment of additional interest in default of payment of the principal amount by the date fixed for redemption. It is therefore a penal clause. The question is to what extent it should be relieved against. The learned District Munsif was of opinion that the plaintiff cannot be said to be a bona fide alienee without notice. The learned District Judge takes exception to this observation of the learned District Munsif. The sale was subject to the mortgage and the vendee was directed to discharge the mortgage. It cannot therefore be said that the vendee was not aware of the terms of the mortgage. She herself deposited the amount under Section 83. If she had seen the mortgage deed she would have known that interest at 12 per cent, was payable in addition to the enjoyment of the property by the mortgagee even after the expiry of three years. It cannot therefore be said that the plaintiff did not know that there was a liability to pay interest. Merely because it is a penal clause it cannot be said that it was unenforceable. The mortgagor himself was in possession of the property along with another and allowed a large portion of the rent to fall into arrears for which a suit had been filed and a decree obtained. The decree was obtained in 1936 and it does not appear that any money has been paid subsequently. As a matter of fact, the appellant had stated that the money due under the decree also should be paid and it does not appear that it was pleaded in any of the two lower Courts that any portion of the decree has been paid and therefore nothing or something less was payable under the decree. When a party obtains a decree and has not been able to realise it, it cannot be said that the mortgagee was getting enough and that therefore there was no justification for enforcing the penal clause. The mortgage was in 1930 and in 1942 the mortgagee is asked to take only Rs. 800 and be satisfied with it. I do not think it is proper. The learned District Munsif was perfectly justified in directing interest at 6 per cent, to be paid in a case like this. I find accordingly. In the result the second appeal is allowed and the decree of the lower appellate Court is set aside and that of the Court of first instance is restored. The plaintiff will pay the appellant the costs in this Court as well as in the lower appellate Court.