X A PINTO Vs. NARAYAN MALHARI MALI

JUDGEMENT

(1.) THIS appeal raises a little difficulty. The plaintiff sued to recover Rs. 1,400 on a mortgage bond dated September 3, 1918, from the defendant, a minor. The mortgage was passed by the minor's uncle and guardian, and was with possession. Both Courts below have found that the mortgage being with possession, although the plaintiff did not recover anything from the lands he must be debited with the profits which he ought to have received and the mortgage is paid off. The lower appellate Court finds that the amount of consideration of the mortgage is Rs. 550 which is binding on the minor, but as the mortgagee did not use his best endeavours to collect the rents and profits, which according to his own admission are Rs. 148 a year, nothing is due on the mortgage.

(2.) THE plaintiff makes this second appeal, and in appeal it is contended that though the mortgage is in form a usufrauctuary mortgage, it contains a clause by which the profits are to be applied primarily towards the interest, and the balance if any was to be taken towards the principal, and if the interest and principal is not paid within five years, the land was to be sold to the appellant, and it is contended that this clause converts the mortgage from a usufructuary mortgage into a simple mortgage, and therefore the mortgagee has two independent rights, and has a right to bring the property to sale, and he relies on Jag Sahu v. Mussam mat Rain Sakhi Kuer (1922) I.L.R. 1 Pat. 350, where it is said, quoting from another case, that (p. 355) " it is well settled that when an instrument of mortgage gives a right to possession and also contains a covenant to pay, thus presenting a combination of a usufructuary and a simple mortgage, the two rights are independent and the mortgagee may sue for sale although he may have given up possession and the right accrues immediately after the due date is passed." He also relies on Dattambhat Rambhat V/s. Krishnabhat, s.c. 12 Bom. L.R. 491, where it is held that where under a usufructuary mortgage the mortgage debt is made payable within a fixed period, the mortgage is not purely a usufructuary mortgage, and the mortgagee has, in the absence of a contract to the contrary, the right to an order under Section 67 of the Transfer of Property Act that the property be sold after the debt had become payable, It is contended by the learned advocate for the respondent that this reference to five years is only a time limit and the guardian could not bind the minor by such an agreement at the time when the mortgage was entered into. THE document is styled a possessory mortgage. On the same day the land was let to the defendant's uncle and his brothers, not in the capacity of a guardian of the minor, but it appears that nothing was recovered from them, and when the appellant went to take possession, he was obstructed by the tenants wives, who prosecuted him in a criminal Court. THE rent note is not executed on behalf of the minor. THE rate of interest in the mortgage is eighteen per cent. This appears to be merely nominal as the rent note is for Rs. 148, and was intended to cover the interest, That works out at twenty-seven percent, on Rs. 550. I think the contention of the appellant ought to prevail in this ease. It is proved that the minor has received the money for the purpose of paying off a prior creditor, and it seems that obstruction was offered to the plaintiff in taking possession of the land, criminal proceedings being taken against him. Nothing was paid by the lessees, and although the mortgagee failed to bring a suit, he did attempt to claim possession, but unsuccessfully, In these circumstances, I think he is entitled to the mortgage money plus interest at nine per cent, per annum from the date of the mortgage to the date of the suit together with costs. THE decree of the lower Court is set aside, and there will be a decree ordering that an account be taken of what was due to the plaintiff at the date of the decree for principal and interest on the mortgage together with costs, including costs of the appeal, the amount to be payable within six months from the date of the confirmation and counteraignature of the account together with subsequent interest at six per cent in default of payment the plaintiff to apply for an order under Section 15B of the Dekkhan Agriculturists Relief Act, the defendants being agriculturists.