SHIB LAL Vs. BIHARI LAL AND MOHAN SINGH

JUDGEMENT

(1.) This was a suit for redemption of a mortgage dated the 23 of November, 1880. There had been a previous mortgage, dated the 17 of November, 1860, between the ancestors of the parties, but this was superseded by the later mortgage. The principal terms of the later mortgage deed were that the mortgagees were to take possession and to receive the profits in lieu of interest. They were, however, to pay to the mortgagors an annual sum of Rs. 25, described as malikana, the mortgagors agreeing that they had no further claim against the mortgagees beyond this malikana. It is further stipulated in the deed that there shall be no accounting except as to the Rs. 25 which the mortgagors were to receive every year. It is not disputed that this malikana was never paid. Both the courts below have granted a decree for redemption on payment of the principal mortgage money after deducting Rs. 25 a year from 1886 to the date of suit. In appeal three points have been taken by the learned Counsel for the appellants.

(2.) The first is that as the mortgage was a usufructuary one, the mortgagees were not bound under Section 77 of the Transfer of Property Act to account to the mortgagors.

(3.) The second is that if this view is accepted, the mortgagors only means of recovering the arrears is by a separate suit and that the claim in respect of it is barred by limitation.