GADDHAR MAL Vs. KALOORAM

JUDGEMENT

(1.) THIS is an, appeal by the defendant Gaddhar Mal against the appellate judgment and decree of the learned District Judge, Bharatpur. It arises out of a suit for recovery of Rs. 3,300/- from the defendant.

(2.) THE facts are that in the year 1917, Sona executed a usufructuary mortgage deed in favour of the defendant Gaddhar Mal for a sum of Rs. 4,200/-of certain immovable property situated in the town of Kumher in the erstwhile State of bharatpur. On 17th July 1929, Gaddhar Mal defendant sub-mortgaged that property with possession to plaintiffs Kaluram and his son Girdhari for a sum of Rs. 3,400/ -. The interest was fixed in this later mortgage at the rate of As.-/12/6 per cent, per mensem and it was recited that the property under mortgage was fetching a monthly rent of Rs. 18/14/- at that time and it was stipulated that after the deduction of Rs. 18/14/- from Rs. 26/9/-, the interest on the mortgage money at the stipulated rate, a sum of Rs. 7/11/- per month would be payable to the mortgagee. It was further stipulated that during the pendency of the mortgage, if there is any increase or decrease in rent, it would go towards the payment of interest and would be credited in the ac-count. The legal representative of Sona, the original mortgagor, brought a suit for redemption impleading both the original mortgagee and his son Girdhar Lal as defendants. This suit was decreed in the year 1946. On 17th September 1947, possession was taken by the original mortgagor from the defendants of that suit on payment of Rs. 3,552/8/- which was received by the mortgagees Kaluram and girdhar Lal. This sum was the balance of the mortgage money after deducting the cost of the suit from the principal mortgage money of Rs. 4,200/ -.

(3.) ON 17th October 1949, the sub-mortgagees Kaluram and Girdhar Lal filed the present suit against Gaddhar Mal. It was alleged that the total interest on the sum of Rs. 3,400/- at the stipulated rate up to 17th September , 1947, the date of dispossession, came to Rs. 5,790/10/ -. Thus, the principal plus interest on the said date, came to Rs. 9190/10/ -. Out of this amount, Rs. 2,243/5/6 had been realized from the rent of the mortgaged property and a sum of Rs. 3,352/8/- had been realised in the redemption suit brought by the original mortgagor. Thus, a sum of Rs. 3,394/14/6 remained due from the defendant till 17th september 1947. Thereafter interest at the stipulated rate up to the date of suit came to Rs. 657/8/- and the aggregate thus came to Rs. 4,032/6/6. Out of this amount, only Rs. 3,300/- were claimed and the balance was given up.