MANJUNATH SHANBHUGA Vs. SANNAYYA ALIAS NARAINA HOLLA

JUDGEMENT

(1.) The plaintiff-appellant is a transferee of the suit properties from the original mortgagors. He seeks to redeem a usufructuary mortgage (Ex. A) dated the 16 of June 1875 executed to the first defendant's father. There was a prior mortgage over the same properties (Ex. B) dated the 24 January 1872 for Rs. 320. By means of Ex. D dated the 20 August 1877, this was transferred to the first 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 first defendant interest under the mortgage, Ex. B, from the year 1877 up to the time of redemption. The lower Appellate Court has held that the first defendant is entitled to get interest on the strength of the decisions in Kirat V/s. Debi Singh 27 A. 308 : A.W.N. (1904) 268 and in Abdul Qayyum V/s. Sadr-ud-din Ahmed Khan 27 A. 403 : 2 A.L.J. 23 A.W.N. (1905) 11. 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 authorities, 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 Ramakrishna Kukkilaya V/s. Nekkar Kuppanna 43 Ind. Cas. 286 : 33 M.L.J. 581 : 6 L.W. 621 : 22 M.L.T. 422 : (1918) M.W.N. 75, Kesar Kunwar V/s. Kashi Ram 30 Ind. Cas. 577 : 37 A. 634 : 13 : A.L.J. 889, Alhan Kutti V/s. Matavil Illoth Sutarjanam 37 Ind. Cas. 756 : 32 M.L.J. 317 : (1917) M.W.N. 9 : 5 L.W. 461, Panaganti Ramarayanimgar V/s. Maharajah of Venkatagiri 61 Ind. Cas. 612 : 44 M. 301 : 12 L.W. 685 : 28 M.L.T. 234 : 40 M.L.J. 236, Kunhimai Kutti Beari V/s. Halekote Aisabai 62 Ind. Cas. 723 : 13 L.W. 434 and Mangeshwar Naraina Rao V/s. Shiva Rao 49 Ind. Cas. 123 : 41 M. 1043 : 35 M.L.J. 414 : 8 L.W. 405 : 24 M.L.T. 370 : (1918) M.W.N. 917 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 in enjoyment of the property, he must be considered to have realised the interest from out of the profits of the 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 the respondents, has tried to support the lower Court's judgment on two grounds. Firstly, he has relied upon Section 72, Clause (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 service in support of the argument. According to the arguments of Mr. Adiga, the amount claimed by the first 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 by 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. Mr. Adiga argues that if the prior mortgagee's possession is disturbed as it must be considered to have been in this case" when the second mortgage was executed, he is entitled to bring a suit, and all these complications were put an end to by the first defendant taking an assignment of the first mortgage. This is altogether, a new argument and opens up anew line of defence which had not been considered by the lower Courts with reference to the facts of the case. One cannot say whether the reference to litigation vaguely mentioned in the assignment deed and in the written statement would really have led to the sale of the property and whether it would have been necessary to make any payment for preserving the property from such sale. I cannot deal with this argument without the findings of the lower Court on facts involved in it, and I, therefore, cannot allow the learned Vakil for the respondents to raise this argument for the first time in second appeal. Since the argument was not even faintly suggested in either of the Courts below and since sufficient facts do not appear on the record to support it except the vague reference in the assignment deed and the written statement, I do not think that I would be justified in framing an issue about the question that is now raised and calling for a finding upon it from the lower Court.