DATTAJIRAO Vs. PRAHLADDAS

JUDGEMENT

(1.) THIS is a Defendant's appeal in a suit for the taking of accounts of a mortgage with possession and for the recovery of Rs. 2,060 -1 -6, the surplus amount said to have been paid by the mortgagor to the Defendant mortgagee. The case of the Plaintiff Prahlad Das was that one Raghuwar Dayal mortgaged with possession with the Defendant Krishnarao Patankar two houses belonging to him for the total consideration of Rs. 10,000, that subsequently Raghuwar dayal sold the property to the Plaintiff for Rs. 28,000, that thereafter the Plaintiff served the Defendant with a notice to explain the accounts of the mortgage and to restore the possession of the properly to him after receiving such amount as may be found due from him after the taking of accounts; that the Defendant without rendering any accounts demanded from the Plaintiff Rs. 13,049 -8 -0 for the redemption of the property; that the Plaintiff first objected to the payment of this amount saying that it was high and not due under the mortgage but ultimately paid under protest the amount demanded by the mortgagee and obtained possession of the property after giving a receipt to the Defendant -mortgagee.

(2.) MR . Motilal Gupta first submitted that the Plaintiff had not been able to prove that he had redeemed the property and that there was no registered document to prove the redemption. There is no substance in this contention. The evidence on record clearly shows that the Defendant -Appellant after obtaining from the Plaintiff Rs. 13,049 -8 -0 the amount demanded by him as due under the mortgage, gave back the possession of the property to the Plaintiff and took from him a receipt. The payment of the money and the restoration of the possession are, in my opinion, sufficient evidence of redemption of the mortgage.

(3.) IT was next contended that the Plaintiff had not alleged in the plaint that he had paid to the Defendant the amount, which he was now seeking to recover, through some mistake or fraud and that in the absence of any such averment his suit was not maintainable. This contention also is devoid of any force. The mortgagor's right to demand accounts of die profits received by die mortgagee in possession and to recover from the mortgagee any surplus left in his hand after the satisfaction of the mortgage amount is a right arising from and connected with his right to redeem or recover possession of the property and tire liability of the mortgagee to account of the profits received by him.