LAWS(BOM)-1942-6-10

DAMODAR VENKATESH DHOPADE Vs. NARHAR BALWANT KULKARNI

Decided On June 29, 1942
DAMODAR VENKATESH DHOPADE Appellant
V/S
NARHAR BALWANT KULKARNI Respondents

JUDGEMENT

(1.) THIS is a Letters Patent appeal from a decision of Mr. Justice Wassoodew.

(2.) THE point for determination is whether a mortgagee in possession is liable to account under the following circumstances. In the year 1867 there was a mortgage, the terms of which are set out by Mr. Justice Wassoodew as follows : That the advance, of Rs. 3,000 should be paid in yearly instalments of Rs. 200, that if the instalments were not paid, the mortgaged property which yielded an annual rental of Rs. 200 should be handed over to the mortgagee, that the latter should enjoy the profits in lieu of interest, and that interest thereof should run at 12 per cent, per annum. This translation of the operative terms of the mortgage is admittedly correct, except in one point. THE original mortgage makes it clear that the interest at twelve per cent. per annum was provided merely for the period after default and before delivery of possession. It appears that the mortgagor neither paid the money nor handed over possession and in 1873 the mortgagee had to sue to recover his money. In 1874 a decree was made which provided as follows : It is found that Rs. 2,800 are due for principal and Rs. 1,778 for interest making up a total of Rs. 4,578 in terms of the bond. Consequently the mortgagee is entitled to possession of the property mortgaged except survey No.24. If the Defendant mortgagor pays Rs. 4,578 to the mortgagee the proper thing will have been done. Until that sum is paid the property mentioned in the suit bearing survey Nos. 597 and 572 shall remain in the possession of the mortgagee. THE suit from which the present appeal arises was brought in 1934 by the successor-in-title of the mortgagor against the grandson of the mortgagee and it was a suit for accounts of the mortgage.

(3.) THEN there was a second appeal which was heard by Mr. Justice Wassoodew. He pointed out that Datatraya v. Anaji, the case relied on by the Assistant Judge, was not in point, because in that case the decree had not directed that the mortgagee was to retain possession until payment of a fixed sum. Mr. Justice Wassoodew considered on the other hand that two Bombay cases, viz. Navlu v. Raghu (1884) I.L.R. 8 Bom. 303 and Tani v. Hari, were in point and dealt with: decrees the terms of which were very similar to the decree which has to be construed in the present case. The learned Judge, however, took the view that the authority of these cases was weakened by a Privy Council decision, Sri Raja Papamma Rao v. Sri Vira Pratapa H.V. Ramachandra Razu. (1896) I.L.R. 19 Mad. 249, s.c. L.R. 23 I.A. 32 On the authority of this latter case he felt that he was bound to conclude not only that the mortgagee must submit to be redeemed but also that he was liable to account for the period of possession. Consequently the order of the lower appellate Court was upheld.