ACHALCHAND Vs. REKHRAJ

JUDGEMENT

(1.) THIS is a second appeal by the plaintiff Achalchand in a suit brought by him against the defendant Rekhraj for redemption of a mortgage.

(2.) PLAINTIFF appellant Achalchand and his father Gulabchand who died during the pendency of the suit mortgaged with possession their house situate in Raoton-ka-bas, Jodhpur, to the defendant respondent Rekhraj for a sum of Rs. 1000/- by a registered mortgaged-deed dated Svt. 1984 Maha Vadi 1. The rate of interest settled between the parties was 12% per annum. It also appears that it was stipulated between the parties that the plaintiffs would take a lease of the mortgaged property themselves, and that they would pay a rent of Rs. 10/- per mensem. The plaintiffs accordingly executed a rent-note in favour of the defendant respondent on the same date, that is, Maha Vadi 1, Svt. 1984. On 18. 2. 44 corresponding to Svt. 2000, Falgun Vadi 2, the plaintiffs gave a notice to the defendant Rekhraj (Ex. P-5) wherein the former offered to pay the principal sum of Rs. 1000/- Rekhraj and called upon him to deliver the property to the plaintiffs immediately, failing which the plaintiffs said that all further interest on the mortgage money would cease and they would not be liable to pay anything in lieu of interest to the defendant. The latter did not give any reply to this notice. The plaintiffs, therefore, brought a suit on 21. 3. 44 in the court of Joint Kotwal No. 1, Jodhpur City, for redemption of the mortgaged property on payment of a sum of Rs. 1000/- only.

(3.) IT was next contended by learned counsel for the appellant that the defendant was not entitled to get anything more than the principal amount viz. , Rs. 1000/- because he had failed to maintain proper and full accounts of the rents and profits recovered by him in respect of the mortgaged property. Learned counsel placed his reliance on sec. 76 of the Transfer of Property Act, and on Shadi Lal vs. Lal Bahadur (1) (A. I. R. 1933 P. C. 85.) and Kishangopal vs. , Lalchand (2) (1939 M. L. R. 153. ). Now sec. 76 (g) of the Transfer of Property Act lays down that when the mortgagee takes possession of the mortgaged property, he must keep clear, full and accurate accounts of all sums received and spent by him as mortgagee, and, at any time, during the continuance of the mortgage, give the mortgagor, at his request and cost, true copies of such accounts and of the vouchers by which they are supported. If the mortgagee fails to keep such accounts, a presumption arises against him but the presumption in my opinion is not absolute or without any limitation. IT is obvious in this case, that both as a matter of fact and in accordance with the terms of the mortgage deed, the plaintiffs themselves took the lease and were in possession of the mortgaged property throughout the material period. IT is beyond question that they had executed a rent-note in favour of the defendant simultaneously with the execution of the mortgage instrument itself, and had agreed to. pay to the defendant a sum of Rs. 10/- per mensem by way of rent, which was also the exact equivalent of the amount of interest on the sum borrowed i. e. , Rs. 1000/- at 1% per mensem. Besides, it has been found on the basis of Exs. P-3 and 4, documents which were brought on record by the plaintiff appellant himself (and he has led no evidence to the contrary) that the plaintiffs had paid the entire rent to the defendant up to Jeth -Vadi 4, Svt. 1997 corresponding to 25. 5. 40, but no rent whatsoever was paid by the plaintiffs to the defendant thereafter. The plaintiffs did not care to go into the witness box and prove that the case put forward by the defendant as to the rent in arrears was false. In these circumstances, I am of opinion that there is no scope for raising any presumption against the defendant mortgagee and it cannot be held that the defendant is dis-entitled to recover interest. The case relied upon by learned counsel for the appellant are distinguishable on facts. The ruling of the Chief Court of the former State of Jodhpur in 1939 M. L. R. 153 is based upon A. I. R. 1933 P. C. 85. But in both these cases the mortgagees were in, actual possession of the mortgaged properties and it was impossible to know the extent of the rents and profits realised by the mortgagee in the absence of proper accounts, and in such circumstances it was held that the claim for interest must be disallowed. As already pointed out above, the facts of the present case are entirely different. The mortgagors themselves have been in possession and the rent was definitely fixed and known and the amount in arrear was known. In a case of our own Court Prem Singh vs. Prithviraj (1) (I. L. R. XX Bom, 721.) (1951 R. L. W. 9.), it was held by a Division Bench that where a mortgagor remains in possession of the mortgaged property and does not pay anything either towards the rent or interest, no adverse inference can be drawn against the mortgagee for his failure to keep accounts and that the mortgagee was not disentitled to recover interest. The authority is directly applicable to the present case and is binding upon me and consequently I hold that the contention of learned counsel for the plaintiff appellant on this score has no merit and must fail.