NARAIN PRASAD SINGH Vs. RADHAKANT PRASAD SINGH

JUDGEMENT

(1.) The defendant first party in a suit for redemption of mortgage is the appellant. Defendant second party were the original mortgagors, from whom the plaintiffs purchased the equity of redemption. The plaintiffs deposited the mortgage money due under the mortgage bond under Section 83 of the Transfer of Properly Act in 1945 in Court, but the delivery of possession was given to them in May, 1960. While passing the decree, there was a direction for determination of the mesne profits as due to the plaintiffs under Section 76, Clause (1) of the Transfer of Properly Act, and a final decree in that respect was passed on the 23rd of December, 1958, against the defendant first party, the mortgagee. The mortgagee, defendant first party came in appeal against that and the plaintiffs preferred a cross-objection as no interest had been allowed to them on the decretal amount The lower appellate Court upheld the final decree, but modified it by allowing on the cross-objection of the plain-tiff's interest, at the rate of six per cent per annum of the decretal amount from the date of the suit till the date of the final decree Against this the present appeal has been brought.

(2.) Learned counsel's main grievance is that the cost of cultivation was not deducted in determining the amount of mesne profits payable by the mortgagee for holding the possession of the land after the deposit of the money under Section 88 of the Transfer of Property Act for about five years Clause (i) of Section 78 of the Transfer of Property Act was amended by Section 40 of Act XX of 1929. It reads now as follows:

(3.) If we refer to the provisions of Clause (h) of Section 76, we shall see what the legislature meant by the ''expenses'' That clause refers to expenses, including that incurred for the collection of rents and profits. Cost of cultivation is incurred for getting the profits from the land, and, therefore, it necessarily comes within Clause (h). The next Clause (i) has prohibited deduction of any expenses incurred, . . . .in connection with the mortgaged properly" Cost of cultivation must necessarily come within that limit. The Courts below were right in thinking that the mortgagee was not entitled to deduct those expenses from what he received from the land during the period that he held possession in spite of the deposit of the mortgage money.