Tottenham and Agnew, JJ.
1. The defendant-appellant was the putnidar of Lot Sarangpur, a mehal belonging to the Maharaja of Burdwan. The plaintiff-respondent in this Court is a durputnidar. To protect the putni from sale for arrears of rent under Regulation VIII of 1819 the plaintiff in the month on Joisto 1279 paid in the amount due for patni rent, and in Bhadro following he obtained possession of the putni under the provisions of Section 13 of the Regulation, which gave him a lien on the tenure in the same manner as if the amount had been advanced upon mortgage, in order to recover that amount from any profits belonging thereto. He retained possession until the commencement of 1288, when the Collector ordered the putni to be released in favour of defendant No. 2, who, having purchased the rights of defendant No. 1, paid in to the Collectorate the sum originally advanced by plaintiff with interest to the date on which the latter obtained possession of the putni. The plaintiff brought this suit to recover Rs. 3,206-6 as being still due to him, and the lower Appellate Court has decreed that amount which the first Court had cut down upon considerations urged by the defendants.
2. The second defendant purchaser of the putni from defendant No. 1 is not a party to this appeal.
3. The question upon which the case mainly turns is as to the proper construction of the word 'profits' in the 4th Clause of Section 13, Regulation VIII of 1819. The plaintiff claimed to be entitled to appropriate the whole of the collections of the putni during his possession, in the first place to the satisfaction of his claim for the interest and principal of the sum by advancing which he had entitled himself to possession, and to treat all subsequent payments of the putni rent as disbursements from his own pocket on behalf of the defendant and as ever adding to the sum of the latter's debt to him bearing interest.
4. On the other hand, the defendant-appellant contends that the word 'profits' means that which remains to the putnidar after the payment of the rent of the putni He submits, therefore, that the plaintiff being in possession as mortgagee under Section 13 was bound to pay the putni rent first from the gross collections, and was not entitled to charge the defendant with any portion of such rent accruing and paid during the period of his possession. It seems to us that this construction urged by the defendant is the true one, and that it is the only one consistent with the context. The District Judge drew a distinction between 'profits' and 'net profits,' hut we consider that in this section the meaning is what the Judge terms 'net profits.' For the section gives the plaintiff the right of possession only for the purpose of recovering the amount advanced by him as described in the earlier part of the clause; and it goes on to provide that the defaulter may recover the tenure by repayment of the entire sum advanced with interest at the rate of 12 per cent, per anuum up to the date of possession having been given as above, or by proving in a regular suit that the full amount so advanced with interest has been realized from the usufruct of the tenure, It thus seems clear to us that the law does not contemplate that the defaulter is also to be held liable for the rent of the tenure during the period of possession of him who holds it as under a mortgage.
5. And there is authority for holding that when the subject of a mortgage is leasehold property, and the mortgagee is put in possession under circumstances which amount to an assignment of the leasehold interest, the mortgagee becomes liable as a rule to pay the rent. See Kannye Loll Sett v. Nistoriny Dossee I.L.R. 10 Cal. 443.
6. We think, therefore, that the lower Appellate Court committed an error in law in permitting the plaintiff to calculate the amount due to him upon the principle adopted in his account.
7. The appellant has taken two other objections, viz., that the plaintiff has charged him compound interest, and that he has made him liable for collection, charges in respect of the period during which plaintiff held possession of the putni. As to compound interest, we are satisfied that the appellant was under a misapprehension: for it has been shown to us that each instalment of interest claimed by plaintiff was credited to defendant in the account, and there is no claim for interest upon interest.
8. As to collection charges, we think that in any account rendered by the plaintiff to defendant of the profits of the tenure during the period of his possession, plaintiff is entitled to take credit for moderate collection charges, but that would only be if the defendant was claiming a refund of the surplus profits over and above the debt for which the plaintiff had possession of the putni. And it hardly seems to be a question in the present suit what amount of collection charges should be allowed. For in the view we have, taken of the case, the plaintiff was not entitled to claim anything from the defendant in respect of the putni rent paid, while he was himself in possession under Section 13 of the Regulation.
9. We must, accordingly, set aside the decree of the lower Appellate Court, and inasmuch as appellant seems to have acquiesced in the decree passed against him by the first Court, and admitted in that Court that the plaintiff was entitled to recover from him on a different principle from that of the claim, we shall restore that decree.
10. The appellant will get his costs of both the Appellate Courts.