SRINIVASA NAICKER Vs. GOVINDASAMI CHETTIAR

JUDGEMENT

(1.) THE appellants are the defendants in a suit Instituted in the Court of the District munsif of Tiruvayaru for recovery of sums due upon a mortgage. There were several defences to the suit, which do not now concern us in the form in which they were originally raised, out we may note that, in the first appeal the learned district Judge, Tanjore, confirmed the decree of the learned district Munsif in favour of the plaintiff and in doing so, formulated three points as arising for determination in the appeal. The first was about the truth of the agreement put forward by the defendants as a defence to the action, to the effect that the plaintiff should make a further advance of Rs. 1500 and that there should then be, superseding the contract between the parties, a fresh mortgage. On this point both the Courts below have field against the truth of the alleged agreement and this is really no longer in controversy. The second point was whether the plaintiff, who was not put in possession of the hypotheca as he should have been under the agreement according to the concurrent findings of the courts below, would be entitled to the interest claimed though no rate of interest as such was specified in the document of mortgage. The third point was in relation to the actual amount to which the plaintiff would' be entitled by way of Interest, having regard to certain facts of occupation by the plaintiff of a small portion of the hypothecs for a part of the time.

(2.) IN second appeal, the main ground urged before me is that the Courts below were in error in decreeing interest at all, when the document itself did not make any provision for interest, but only for redemption of the other amount of Rs. 1000. But learned counsel for we plaintiff-respondent relies upon the decision of ramesam J. in Subramania Iyer v. Panchanada Odayar, 1931 Mad WN 751.- (AIR 1932 Mad 175) for the view that where a mortgage purports to be one with possession, out, as a matter of tact the mortgagor does not deliver possession, the mortgagee-plaintiff is entitled to get interest equated to damages notwithstanding the fact that he has not taken immediate steps to enforce possession of the property. The learned Judge expressed it in the following form: