1. This is an appeal in a mortgage suit in which a decree has been passed in favour of the plaintiff mortgagee. The plaintiff mortgagee was tenant of two rooms of which the mortgagor was the landlord and the Mortgagor let the rooms to him at a rental of Rs. 36 per year. The mortgagee tenant then lent money to the mortgagor landlord on the security of these rooms and charged interest on his loan at the rate of Rs. 18 per year. It was agreed between the parties that the mortgagee, instead of paying, the whole of the amount of Rs. 36 a year, should retain in his hands Rs. 18 a year which the mortgagor was liable to pay in respect of interest on his mortgage. The mortgagor landlord says that for some years the mortgagee retained the whole of the amount of Rs. 36 in his hands and paid no rent at all and when an account is taken as to what is due on the mortgage, he ought to be allowed a set off, as against the debt due to the mortgagee, on account of the rent which the mortgagee would have had to pay as tenant of the two rooms which were mortgaged. We are of opinion that if the mortgagee did in fact retain in his hands the whole of the rent that is Rs. 36 a year, instead of Rs. 18 a year which be was entitled to under his mortgage, then the presumption which would arise is that he did so in part satisfaction of the debt due to him from the mortgagor; and we should not have presumed that he retained, this money in hand wrongfully, to deprive the mortgagor of it.
2. We, therefore, set aside the judgment and decree of the lower appellate Court and send back the case to that Court with directions that the Subordinate Judge do take an account of what is due to the plaintiff on the mortgage in question and in taking that account the mortgagor landlord will be entitled to credit for any rent not received and not accounted for by his mortgagee tenant. Costs will abide the result.