1. The answer to the question submitted by this reference appears to me to depend upon the question how the interest arises. If it arise and be held to be payable by virtue of Act XXXII of 1839, it appears to me that Article 116 of schedule II to the Limitaton Act (XV of 1877) applies. In that respect I agree with the decision in the case of Gudri Koer v. Bhubaneswari Coomar Singh I.L.R. 19 Cal. 19 which, upon this point, is consistent with the recent decision in the Privy Council of Mathura Das v. Narindar Bahadur Pal I.L.R. 19 All. 39: L. R. 23 I. A. 138. In view of the latter case, however, the former is erroneous in holding that no interest was recoverable. It is clear, having regard to the Privy Council case, that six years' interest is recoverable. This was not contested in the present case, nor could it have been, in the face of the latter decision. Under Section 88 of the Transfer of Proporty Act, the mortgagor cannot redeem unless and until this interest, if and when found due, be paid. If again, post diem interest be provided for by the contract, it is just as much a charge on the property as the principal; and the mortgagor cannot redeem until he pays it. In such a case Article 132 of the Limitation Act would apply.
2. In each individual case one has to ascertain how the interest arises, whether under the Act or under the contract. The language of the contract in this case is very different from that in the contract in the Privy Council case, to which I have referred, and, upon its construction, I am unable to discover any intention to provide for post diem interest. The plaintiff, therefore, can only recover six years' interest under the Statute I have referred to plus, of course, the one year's interest stipulated for by the deed; and the defendant cannot redeem until all principal, with such interest and costs, is paid. There (sic) nothing in this view which conflicts with the judgment in the case of (sic) Tewari v. Durga Dyal Tewari I.L.R. 21 Cal. 274. I see nothing (sic) quarrel with in that judgment. No question of limitation was raised (sic) suit.
3. One other point was urged by the respondent. He said, and properly, that he could support the judgment of the Court below upon reasons other than those given by the Judge, and he said that if he were held to be entitled to six years' interest only, he could ask for that at the rate of 18 rupees per cent., he rate stipulated for by the deed, as long as he did not get more than the Court below had given him. I do not think this argument can prevail. In the first place, the Judge below has exercised his discretion as to the question of interest; and, secondly, I doubt if he, as an Appellate Court, can assess the amount. If the matter were open the Privy Council case of Chhajmal Das v. Brij Bhukan Lal I.L.R. 17 All 511: L. R. 22 I. A. 199 would assist the plaintiff's contention.
4. The judgment of the Court below must therefore be modified by allowing only six years' interest at 6 per cent, plus the interest for the first year at the stipulated rate, and as both parties have partially succeeded, there will be no costs of this appeal.
5. I concur in the judgment which has just been delivered by the Chief Justice.
6. I also concur.
7. I have had the advantage of reading the judgment of Mr. Justice Banerjee which he is about to deliver. I agree in the conclusion arrived at by him for the reasons given in that judgment.
8. The suit which has given rise to this reference was brought by the plaintiffs, respondents, on the 28th of April 1893 for foreclosure of a mortgage by conditional sale, dated the 19th September 1882, stipulating that the principal and interest at 11/2 per cent per mensem should be repaid in September 1883. The defence, so far as it is necessary to be considered for the purposes of this appeal, was that no interest was recoverable under the terms of the mortgage deed for any period after the due date, and that the claim for interest after that date was barred by limitation.
9. The first Court gave effect to the defence and made a decree ordering payment of the principal and interest up to due date with costs within two months, and foreclosure in default.
10. On appeal by the plaintiffs, the Lower Appellate Court has modified that decree by allowing interest after due date at 6 per cont. per annum.
11. In second appeal it is contended for the defendants, appellants, that no interest was recoverable under the mortgage-deed for any period after the due date, and that if any interest was recoverable, the claim for it is barred by limitation.
12. The decree in this case was made under Section 86 of the Transfer of Property Act, which provides that 'the Court shall make a decree ordering that an account be taken of what will be due to the plaintiff for principal and interest on the mortgage and for his costs of the suit,' &c.; And the question is, what was due to the plaintiff for 'principal and interest on the mortgage.' The answer to it must depend upon the construction of the mortgage deed. That document provides that 'if the consideration money with interest at 11/2 per cent, per mensem be paid back by the 30th Bhadro 1290, the property sold by conditional sale shall be reconveyed to the mortgagors, but if the co sideration be not repaid by that time, the mortgagor's right to redeem shall gone.' The omission of the words 'with interest' in the second clause quote above does not go for much, when interest up to due date is so clearly stipulate for. The deed, no doubt, contains no express stipulation for payment of and interest after due date. But the mortgage being one by conditional sale, such stipulation would not ordinarily find a place in it; and at any rate the mere absence of any such express stipulation would not imply an intention not to claim an interest after due date. On the contrary, it would be unreasonable to suppose that the parties intended that the mortgagor who remained in possession of the mortgaged property and continued to enjoy its profits should be entitled to redeem it at any time after the due date upon payment merely of the principal and interest up to the due date without paying any interest for the period after that date. The observations of their Lordships of the Privy Council in Mathura Das v. Narindar Bahadur Pal I.L.R. 19 All 39: L. R. 23 I. A. 138 support the view I take. The case of Cook v. Fowler L. R. 7 H. L. 27. was referred to as being opposed to that view. But all that case decides is 'that upon a contract for the payment of money borrowed for a fixed period or a day certain, with interest at a certain rate down to that day, a further contract for the continuance of the same rate of interest after that day until actual payment,' cannot be implied. There is no question here as to the rate of interest. The Court below has, under Act XXXII of 1839 allowed, in its discretion, interest at 6 per cent, per annum, and the plaintiffs are satisfied with that rate. The question now is whether any interest after due date is recoverable on the mortgage. I am of opinion that this question should be answered in favour of the mortgagees. The law (Act XXXII of 1839) allows them to recover interest after due date. The Court of Appeal below in the exercise of its discretion has awarded interest at a certain rate after that date. And there is nothing in the mortgage deed to disentitle them to such interest, or to entitle the mortgagors to redeem without payment of the same. The interest after due date that has been allowed in this case should, in my opinion, be regarded as interest due on the mortgage within the meaning of Section 86 of the Transfer of Property Act. And if that is so, it becomes a charge on the mortgaged property, and the period of limitation applicable to this part of the claim is twelve years under Article 132 of the second schedule of the Limitation Act.
13. The view I take is supported by the case of Rama Reddi v. Appaji Reddi I.L.R. 18 Mad. 248 and also by Chajjmal Das v. Brij Bhukan Lai I.L.R. 17 All. 511 and Bikramjit Tewari v. Durga Dyal Tewari I.L.R. 21 Cal. 274. The decisions of the Allahabad High Court in Narendra Bahadur Pal v. Khadim Husain I.L.R. 17 All. 581 Mansab v. Golab Chand I.L.R. 10 All. 85 and Bhagwant Singh v. Daryao Singh I.L.R. 11 All. 416 and of this Court in Golam Abas v. Mahomed Jaffer I.L.R. 19 Cal. 23 which support the opposite view, have in effect been overruled by the decision of the Privy Council in Mathura Das v. Narindar Bahadur Pal I.L.R. 19 All. 39 : L.R. 23 I.A. 138.
14. For the foregoing reasons, I would respectfully dissent from the decision in Gudri Koer v. Bhubaneswari Koomar Singh I.L.R. 19 Cal. 19, and hold that the decree appealed against is correct. The second appeal should therefore in my opinion be dismissed with costs.
15. As the majority of the Court are in favour of the view I have expressed, the decree of the Court below will be modified to the extent I have indicated in my judgment, but as I have said there will be no costs of the appeal.