1. The facts of the case out of which this appeal has arisen are these: Defendants Nos. 1, 2 and 3 on the 12th. December, 1924, borrowed a sum of Rs. 407, from the plaintiff and hypothecated as security a parcel of land in which the defendants Nos. 1, 2 and 3 had a raiyati interest. The due date was fixed at four months from the date of borrowing and there was a stipulation that the interest should be paid at the rate of 2 1/2 per cent, per mensem. There was a clause that in the event of default the plaintiff will be able to realize her money by a suit, there was a clause that in lieu of interest the defendants put the mortgagee in possession. Further there was a stipulation, that the defendants would cultivate the land in barga on executing a kabuliyat in favour of the plaintiff for two years and would pay half the produce in lieu of interest and in default of payment of half the produce they would pay the plaintiff interest at the rate mentioned in the bond. On the same day defendants Nos. 1, 2 and 3 executed a kabuliyat in favour of the plaintiff by which they offered to take the land on barga settlement for two years; this kabuliyat was apparently accepted by the plaintiff and so materialized into a lease. At the end of two years defendants Nos. 1, 2 and 3 held over. The finding of the Courts below is that there was no attempt by the plaintiff to take khas possession of the land or to get rid of the barga tenancy.
2. The first Court granted the plaintiff a decree for the principal and also what he describes as interest for the period claimed at Rs. 80 per annum by way of damages. The lower Appellate Court held that the plaintiff was not entitled to interest but that she was entitled to half the produce the value of which he found to be Rs. 50. yearly from the date of the lending of the money up to the date of the suit.
3. Defendants Nos. 1, 2 and 3 have appealed to this Court and their contention is that in this mortgage suit the plaintiff is not entitled to either the interest or the produce rent. The learned Advocate for the appellants contends that the plaintiff was put into possession in lieu of interest and is still in possession and, therefore, only entitled to the principal amount. The plaintiff, on the other hand, filed a cross-objection in which she contends that she is entitled to interest at the bond rate.
4. I think the defendants-appellants must succeed. The bond stipulates that in lieu of interest the plaintiff is put in possession of the mortgaged property. If she was so put in possession and it has not been found that the plaintiff has ever been dispossessed of the mortgaged property but is still ia possession. She, therefore, cannot be entitled to any interest. On the expiry of the term of the lease defendants Nos. 1, 2 and 3 must be considered as holding over as under raiyats under the plaintiff. There is nothing to show that the plaintiff attempted to evict them or to take khas possession. They must be considered as holding over on the terms of the original lease. That lease has been put before us and there is no stipulation in this lease of the payment of any interest in default of the payment of the produce rent. So far as the stipulation is concerned, namely, the payment of interest if there is default of payment of the produce rent it will be good for the term of the kabuliyat, namely, two years. When the defendants hold over after the expiry of the lease they must be considered to hold on the terms stipulated for in the lease. These terms are not governed by the stipulation in the mortgage-bond, namely, of payment of interest in default of payment of produce rent.
5. The result is that the appeal succeeds and the cross-objection must be dismissed. The decree of the lower Appellate Court will be modified to this extent that the plaintiff is entitled to a decree for the, principal sum only.
6. The appellants are entitled to their costs of this appeal and the parties will get their costs in the lower Courts in proportion to their respective success.
7. I agree.