SHANKERLAL LALLUBHAI SINCE DECASED Vs. BAI JIVKOR

JUDGEMENT

(1.) This is a Second Appeal by a plaintiff. It arises out of a suit instituted by appellant for redemption of the suit property and for its possession. The mortgage which was sought to be redeemed was created on 17th February 1930. It was an anomalous mortgage partaking of the characteristics of simple and usufructuary mortgages. The amount advanced under the mortgage deed was Rs. 5 500 and interest was payable at the rate of 6% per annum. Original defendants Nos. 3 and 4 who are respondents Nos. 3 and 4 were the mortgagors. The mortgagors remained in possession of the whole of the property until 24th of February 1932 The mortgagee took possession of the upper storey of the mortgaged property on the latter date and the ground-floor on 25th of October 1933. It is common ground that mortgagee was in possession of the whole of the property since the latter date. Original defendant No. 1 was the mortgagee. She died during the pendency of the litigation and is now represented by respondents Nos. 1-A to 1-E. There is no dispute that at a subsequent date appellant purchased and became the owner of the equity of redemption. It is in the latter capacity that appellant filed the aforesaid suit for redemption. Defendant No. 1 donated the mortgagees rights to defendant No. 2 who is now respondent No. 2 in this Court. There were some more defendants appearing as defendants Nos. 5 to 11 but it is common ground that they do not have any interest in the mortgaged property. Before the present suit was instituted there was an exchange of correspondence between appellant on the one hand and at first respondent No. 1 and subsequently there was a similar correspondence between appellant and respondents Nos. 1 and 2. By the notices given by appellant he claimed an account of the management of the mortgaged property by the mortgagees and true copies of the accounts together with the vouchers. The mortgagees however did not supply any copies of the accounts or of the vouchers. Instead they claimed that a sum of Rs. 22 0 and odd was due under the mortgage. One of the terms of the mortgage was that rent was to be credited towards interest and if rent was more than the amount of interest then the excess was to be appropriated towards the principal amount and if it was less then the deficit was to be paid by the mortgagor to the mortgagee. The trial Court passed a preliminary decree for taking accounts and appointed a commissioner for the purpose. After receipt of the commissioner report and hearing objections of the parties thereon the trial Court came to the conclusion that a sum of Rs. 10 995 was due from the mortgagor to the mortgagee and consequently passed a decree therefor. The finding was that Rs. 5 500 was due as the principal amount and the balance was due by way of interest and costs of improvement. Appellant felt aggrieved by the decree and preferred an appeal which was numbered as Civil appeal No. 39 of 1955 to the District Court at Godhra. Respondents Nos. 1 and 2 filed cross-objections. The learned District Judge came to the conclusion that the mortgage amount due was Rs. 8 996 He held that Rs. 5 500 were due by way of principal amount and the balance was due by way of interest. The learned appellate Judge disallowed the claim for the costs of improvement on the ground that respondents Nos. 1 and 2 had failed to establish the basis for that claim. The Second Appeal has been preferred by appellant and it is directed only against that part of the first appellate Courts decree which awards the such of Rs. 3 496 by way of interest. Appellant does not challenge the decree for Rs. 5 500 which has been awarded by way of principal amount. I shall mention just in a moment the two grounds on which the decree for Rs. 3 496 is being challenged by appellant in this Court. Respondents Nos. 1 and 2 have filed crossobjections to the appeal. Under the cross-objections they claim a further amount of Rs. 1 999 This amount is claimed by respondents Nos. 1 and 2 on the ground that a sum of Rs. 1 90 should have been awarded as interest due from 1st July 1938 at the rate of 62 per annum and that the balance was due as costs of improvement.

(2.) I shall first take up the two points of law on the basis of which the appeal for Rs. 3 496 is supported by Mr. Oza. The first point of Mr. Oza is that the learned appellate Judge should have visited respondents Nos. 1 and 2 with the consequence of the loss of interest as a result of its finding that they had failed to keep clear full and accurate accounts of all the sums received and spent by them as mortgagees. The second submission of Mr. Oza is that in any case respondents Nos. 1 and 2 should have been visited with a similar consequence on account of their failure to supply appellant true copies of accounts and all the vouchers by which they were supported. I shall take up the cross-objections for consideration after I have dealt with these two submissions made by Mr. Oza.

(3.) Now before I deal with the first point of law I may mention that respondents did produce an account-book in the trial Court. It was marked as Ex. 99/A. The learned appellate Judge recorded a finding that he concurred with the finding of the trial Court that the above accountbook was open to suspicion and unreliable. He also recorded a finding to the effect that he was however not able to persuade himself that the accounts were fabricated for the purposes of the suit. He further held as follows. It is true that the state in which it (account-book) is kept is highly unsatisfactory. It is equally true that it is open to suspicion and cannot be relied upon but the way in which the entries have been made in the account-book the difference of ink and the old appearance would rather suggest that there is little possibility of fabrication for the purpose of the suit. It appears that a very strong plea was made before the learned appellate Judge for raising a presumption against respondents based on the fact that the account-book was unreliable. After making the observation that the accounts were not fabricated the learned Judge recorded his finding regarding this plea as follows. This is also another reason why I refuse to raise the presumption as contended for on behalf of the appellants. The first point which was raised for decision in the first appellate Court was as follows:-