1. The mortgage in this ease was a mortgage which combined the incidents of a mortgage by way of conditional sale with the incidents or one of the incidents of a usufructuary mortgage. It was expressly provided that the mortgagee, the plaintiff in this suit, should have possession of the mortgaged properties in lieu of interest. The mortgage debt was payable at the end of 1307 and it was further expressly provided that in default of payment the mortgagee should be at liberty to foreclose according to law.
2. The plaintiff, it is found, was wrongfully kept out of possession by the mortgagors or their then representatives and only secured possession during one year, 1311.
3. While he was out of possession, he paid a sum of Rs. 562-13-6 to prevent the mortgaged property from being sold in execution of a decree for arrears of rent obtained by the superior landlord.
4. He instituted the suit on the 14th April, 1913 (1st Baisak, 1320), which, unless anything had occurred to give a fresh starting point, was the last day of the period of twelve years allowed by Article 132 of the Limitation Act. By his plaint he sought to recover the principal debt Rs. 800 with interest at 12 per cent. per annum, crediting against interest the rent which he had realised during 1311. He further claimed under Section 72 of the Transfer of Property Act to add. to the amount secured the sum of Rs. 562 with interest at 9 per cent. per annum. The total amount claimed was Rs. 2,000 in respect of which the Courts below have concurred in giving the plaintiff a decree for foreclosure in the usual form.
5. The mortgagors have not appealed. The appellant before us is the defendant No. 10 in the suit, who purchased the mortgaged properties by two conveyances subsequent to the mortgage.
6. The decrees of the Courts below are not seriously contested so far as the principal debt and the sum of Rs. 562 with interest on that sum are concerned. It is contended, however, on the authority of the decision of the Bombay High Court in Mahadaji v. Joti (1892) I.L.R. 17 Bom. 425, that the plaintiff is not entitled to interest on the principal. The facts are not fully stated in the report, but if the Tearned Judges intended to lay down any general principle the case may be distinguished on the ground on which the learned District Judge has distinguished it. It is said in the judgment that the plaintiff 'never took the trouble to obtain possession.' In the present case, as I have said, the rinding is that the plaintiff was wrongfully kept out of possession. In spite of his efforts he was only able to secure possession for one year. There was no waiver or acquiescence as there was in Partab Bahadur Singh v. Gajadhar Bakhsh (1902) I.L.R. 24 All. 521.
7. Then it was said that if the plaintiff is entitled to interest at all, he can only claim interest by way of damages under the Interest Act, and the Full Bench decision of this Court in Moti Singh v. Ramohari Singh (1897) I.L.R. 24 Cacl. 699 is cited as authority for the proposition that such interest is payable only for the six years before suit. But in that case it was held on the construction of the contract, that it disclosed no intention to provide for interest after the due date. That was the ground of the decision and Maclean C.J. was careful to point out that 'if post diem interest be provided for, it is just as much a charge on the property as the principal' and that 'in such a case Article 132 of the Limitation Act would apply.'
8. Here the contract clearly contemplated the payment of interest after the due date by the perception of profits. The plaintiff was to retain possession till the capital was repaid. The plaintiff is clearly entitled to some interest as a charge on the property and the interest allowed does not seem excessive. This seems to me to be in accordance with principle. In Raja Oodit Purkash Sing v. Martindell (1849) 4 Moo. I.A. 444, there was a similar mortgage with a covenant for possession. Possession having been withheld, interest at 12 per cent, per annum was allowed without any question being raised. There is nothing in the Transfer of Property Act to suggest or compel a contrary view. The case of Pargan Pandey v, Mahatam Mahto (1907) 6 C.L.J. 143 may be cited, though in that case it was expressly agreed that in case of dispossession interest should run at the rate of 15 per cent. per annum.
9. It is true that the plaintiff might have instituted a suit for the possession of the mortgaged property, or he might have sued for the mortgage money at once under Section 68 of the Transfer of Property Act. He was not obliged to take the former course, nor was he obliged under Section 68 to sue at once. It was open to him to bring the present suit within the period allowed by the law of limitation. The suit is in effect a suit under Section 68 read with Section 67. In the circumstances Section 68 makes the 'mortgage money' payable. By definition 'mortgage money' includes interest and after the mortgage money becomes payable a suit may be brought under Section 67.
10. In my opinion the appeal should be dismissed with costs.
11. I agree.