KAJOD Vs. CHIRAOJI LAL

JUDGEMENT

(1.) - This is a plaintiff's revision application against a decree of Judge, Small Causes, Gangapur, in a suit for recovery of interest on the basis of a usufructuary mortgage-deed.

(2.) A sum of Rs. 4,500/- was borrowed by Chiranjilal respondent on the basis of the above deed. The mortgage-deed provided for payment of interest on the principal sum at 9% per annum simple. The profits from the property were to be utilised first towards the payment of interest and then towards the payment of the principal. The mortgage-deed was executed on 19. 2. 58 and on the same date Kajod applicant was put into possession of the mortgaged property. At that time the property which is a shop situated in Gangapur Bazar was in the possession of a tenant, firm Poonam Chand Gyanchand, on a rent of Rs. 37. 8. 0 per month who attorned to him. Poonamchand Gyanchand vacated the shop on 17. 7. 58. It remained vacant from 11. 7. 58 to 28. 8. 58. One Radha Kishan was admitted as a tenant on 29. 8. 58 and remained in possession of the shop as a tenant on Rs. 31/- per month upto 28. 12. 58. The shop remained vacant from 29. 12. 58 to 9. 5. 59 when the present suit was brought. The interest from 19. 2. 58 to 9. 5. 59 conies to Rs. 490. 8. 0. The rents realised from the above two tenants amount to Rs. 286. 8. 0. The suit was instituted for the recovery of Rs. 204/- on the allegation that from 11. 7. 58 and 29. 12. 58 to 9. 5. 59 the shop remained vacant and no tenant could be found in spite of the efforts of the plaintiff. This allegation was denied by the defendant in the written statement. The plaintiff however failed to produce any evidence to prove that he tried to find a tenant but was not successful in doing so during the above period. Sec. 76 of the Transfer of Property Act is applicable, which lays down that the mortgagee must manage the property as a person of ordinary prudence would manage it if it were his own and he must use his best endeavours to collect the rents and profits thereof. The learned Judge did not apply his mind to the provisions of sec. 76 at all. He was of the opinion that as the mortgagee was in possession of the property he was liable to credit rent for it at the rate of Rs. 37. 8. 0 per month in the account of the defendant whether or not the shop remained vacant. This view is not tenable in law.