Madhavan Nair, J.
1. The plaintiff appellant ie transferee of the suit properties from the original mortgagors. He seeks to redeem, a usufructuary mortgage (Exhibit A.) dated the 16th of June, 1875, executed to the 1st defendant's father. There was a prior mortgage over the same properties (Exhibit BJ dated the 24th January, 1872 for Rs. 320. By means of Exhibit D, dated the 20th of August, 1877, this was transferred to the 1st defendant's father Exhibit B does not contain any personal covenant.
2. The only question arising in this second appeal for decision is whether the plaintiff is bound to pay the 1st defendant interest under the mortgage Exhibit B, from the year 1877 up to the time of redemption. The lower appellate Court has held that the 1st defendant is entitled to gee interest on the strength of the decisions in Kirat v. Debi Singh (1905) 27 All. 308 and in Abduqayyam v. Sadr-ud-din Ahmed Khan (1905) 27 All. 403. It is unnecessary to discuss the applicability of these decisions to the facts of this case as the learned Vakil for the respondents has very fairly stated that these decisions do not lend him any support; and he seeks to support the judgment on other grounds which I shall presently notice. It seems to me that both on principle and on authortits it is not incumbent; on the appellant at the time of redemption to pay the interest claimed by the defendant in this case. The cases in Ramkrishna Kukkilaya v. Nekker Kuppayanna (1918) M.W.N. 75, Kesar Kunwar v. Kashi Ram (1915) 37 All. 634 Athankutti v. Subhadra (1917) M.W.N. 9, Ramaray aningar v. Maharajah of Venkatagiri (1921) 44 Mad. 301 Kunhimaikutty Beari v. Halkote Atsabi (1921) 13 L.W. 434 and Narama Rao v. Shiva Rao (1918) 41 Mad. 1043 cited by Mr. Sitarama Rao, the learned Vakil for the appellant, show that the transferee from the mortgagors at the time of redemption is not bound to pay a claim for interest which has become barred by limitation.. In this case even if there is a personal covenant, the right to enforce it is admittedly barred. Apart from this, it seems to me that since the mortgagee has been is enjoyment of the property, he must be considered to have realized the interest horn oat of the pro Sis of property, and a mortgagor in such cases seeking to redeem the property can be compelled only to pay the mortgage money. I think, therefore, the mortgagee in this case is not entitled to get interest on the principal amount of Rs. 320 from the year 1877.
3. Mr. Adiga, the learned Vakil for chg respondents, has tried to support the lower Court's judgment on two grounds. Firstly he has relied upon Section 72, Clauses (b) and (d). Obviously Clause (d) does not apply, and as regards Clause (b) it is only the last part of it that is pressed into ser. vice in support of the argument. According to the arguments of Mr. Adiga, the amount claimed by the 1st defendant must be considered to have been the amount spent by him in preserving the property from sale; and this is sought to be supported, toy reference to a fact that is found mentioned in the transfer deed to the effect that the transfer was made 'to avoid the trouble of litigation,' and reference to a. possibility of litigation is found in the, written statement also.
4. Mr. Adiga argues that, if the prior; mortgagee's possession is disturbed as it must be considered to have been in this case when the second mortgage was executed, he is entitled to bring a suit, and all these complications were put an end to by the first defendant taking an assignment of the first mortgage. This is altogether a new argument and opens up a new line of defence which had not been considered by the lower Courts with reference to the facts of the case. One cannot say whether the reference to litigation vaguely mentioned in the assignment deed and in the written statement would really have led to the sale of the property and whether it would have been necessary to make any payment for preserving the property from such sale. I cannot deal with this argument without the findings of the lower Court on facts involved in it, and I, therefore, cannot allow the learned Vakil for the respondents to, raise this argument for the fist time to second appeal. Since the argument was not even faintly suggested in either of the Courts below and since sufficient facts do not appear on the record to support it except the vague reference in the assignment deed and the written statement, I do not think that I would be justified in framing an issue about the question that is now raised and calling for a finding upon it from the lower Court.
5. The second argument of Mr. Adiga is this that since the usufructuary mortgagee under Exhibit A has to realize his interest from the profits of the property, it cannot be imagined that the same amount of profits will be enough to pay for the interest on the first mortgage as well; and therefore it must follow that provision has to be made for this interest at the settlement of accounts during the time of redemption. No authority is cited in support of this proposition. Reference in this connection is made to the last sentence in Exhibit D, which says that you (the mortgagee and transferee) should recover the consideration of the said mortgage due to me from the Mulgars together with interest being the value of (translated in Court as in 'return for') the produce commencing from the current year. The meaning of this sentence is not very dear. It does not in my opinion authorise the transferee to ask the Mulgars (mortgagors) for the interest. The sentenoe in my view means that the transferee should get the consideration of the mortgage from the Mulgars and interest from the value of profits. It has also to be remembered that the plaintiff is not a party to this document.
6. Under these circumstances, I set aside the decree of the lower Court awarding interest to the respondents. In other respects the decree of the lower Court will stand. Time for re-redemption is extended to three months from this date. The parties will pay and receive proportionate cists in this Court.