MANJUNATH SHANBHAGA Vs. SAMAYYA

JUDGEMENT

(1.) The plaintiff appellant ie transferee of the suit properties from the original mortgagors. He seeks to redeem, a usufructuary mortgage (Exhibit A.) dated the 16 of June, 1875, executed to the 1 defendant's father. There was a prior mortgage over the same properties (Exhibit BJ dated the 24 January, 1872 for Rs. 320. By means of Exhibit D, dated the 20 of August, 1877, this was transferred to the 1 defendant's father Exhibit B does not contain any personal covenant.

(2.) The only question arising in this second appeal for decision is whether the plaintiff is bound to pay the 1 defendant interest under the mortgage Exhibit B, from the year 1877 up to the time of redemption. The lower appellate Court has held that the 1 defendant is entitled to gee interest on the strength of the decisions in Kirat V/s. Debi Singh (1905) 27 All. 308 and in Abduqayyam V/s. Sadr-ud-din Ahmed Khan (1905) 27 All. 403. It is unnecessary to discuss the applicability of these decisions to the facts of this case as the learned Vakil for the respondents has very fairly stated that these decisions do not lend him any support; and he seeks to support the judgment on other grounds which I shall presently notice. It seems to me that both on principle and on authortits it is not incumbent; on the appellant at the time of redemption to pay the interest claimed by the defendant in this case. The cases in Ramkrishna Kukkilaya V/s. Nekker Kuppayanna (1918) M.W.N. 75, Kesar Kunwar V/s. Kashi Ram (1915) 37 All. 634 Athankutti V/s. Subhadra (1917) M.W.N. 9, Ramaray aningar V/s. Maharajah of Venkatagiri (1921) 44 Mad. 301 Kunhimaikutty Beari V/s. Halkote Atsabi (1921) 13 L.W. 434 and Narama Rao V/s. Shiva Rao (1918) 41 Mad. 1043 cited by Mr. Sitarama Rao, the learned Vakil for the appellant, show that the transferee from the mortgagors at the time of redemption is not bound to pay a claim for interest which has become barred by limitation.. In this case even if there is a personal covenant, the right to enforce it is admittedly barred. Apart from this, it seems to me that since the mortgagee has been is enjoyment of the property, he must be considered to have realized the interest horn oat of the pro Sis of property, and a mortgagor in such cases seeking to redeem the property can be compelled only to pay the mortgage money. I think, therefore, the mortgagee in this case is not entitled to get interest on the principal amount of Rs. 320 from the year 1877.

(3.) Mr. Adiga, the learned Vakil for chg respondents, has tried to support the lower Court's judgment on two grounds. Firstly he has relied upon Section 72, Clauses (b) and (d). Obviously Clause (d) does not apply, and as regards Clause (b) it is only the last part of it that is pressed into ser. vice in support of the argument. According to the arguments of Mr. Adiga, the amount claimed by the 1 defendant must be considered to have been the amount spent by him in preserving the property from sale; and this is sought to be supported, toy reference to a fact that is found mentioned in the transfer deed to the effect that the transfer was made "to avoid the trouble of litigation," and reference to a. possibility of litigation is found in the, written statement also.