NADERSHAW SHERIARJI RABADI Vs. SHIRINBAI BAPUJI MUSA

JUDGEMENT

(1.) After expressing conclusions on questions of fact as summarised above the judgment proceeded : I first take up the question about Awabai's costs in Suit No. 13 of 1917. As already mentioned, the decree in this suit was passed on July 17, 1919, and Awabai's costs were taxed at Rs. 1494-12-0 in November 1919, Ex. I. There is no specific provision in the mortgage deed for the payment of any costs of litigation, but Mr. Inverarity for the plaintiffs relies upon the ordinary law of mortgage by which a mortgagee can tack on to the mortgage debt coats of litigation properly incurred by him in supporting the mortgagor's title, etc, Mr. Desai, on behalf of the defendant, has raised various objections, which I will consider in due order.

(2.) His first contention is a general one, that these costs were not in any case payable by the mortgagor on October 14, 1919, because they had not been actually ascertained, the allocatur of the Taxing Master not having been given until some time in November 1919; but I think this is completely answered by the fact that the mortgagor's liability for these coats was totally denied, so that there was no occasion for an immediate ascertainment of the exact amount which should be tendered on that account. The position could easily have been met; for instance, the mortgagor might have made an offer to pay these costs under protest, just as the interest for three months in lieu of notice was paid, or an undertaking might have been given by the mortgagor's solicitors to pay the costs as finally taxed just as they gave an undertaking to pay the reasonable costs-of the reconveyance. Accordingly I do not think there is any force in that particular point.

(3.) Next it is said that these costs cannot be tacked on under Section 60 of the Transfer of Property Act, read with the definition of "mortgage-money" in Section 58, viz., "the principal money and, interest of which payment is secured for the time being." I notice that in the case of Pestonjee V/s. Hormasji (1903) 5 Bom. L.R. 387 389 the plaintiff's counsel in that case (who happened to be Mr. Inverarity) apparently did put forward a contention of that kind which was accepted by the Court, but Batty J.'s expression of opinion is purely an obiter dictum, for the suit was decided on other grounds.