ABBAKKE HEGGADTHI Vs. KINHIAMMA SHETTY

JUDGEMENT

(1.) The plaintiff sues on a mortgage of 31 August 1891 executed by one Manjanna Shetty, now deceased, the then ejaman of the defendant's family and his two brothers The first defendant is one of the brothers. The other defendants are members of the family and the second defendant is also the present ejaman of the family. The mortgage comprises certain items of property and the mortgagor's mortgage interest in some other items.

(2.) As regards the latter the plaintiff's allegation, which apparently is not denied, is that the mortgage money has been collected by the second defendant and is now in his hands. The deed provides for payment of interest at the rate of 7 per cent, per annum, with a further provision that, on default, interest at 12 per cent, shall be payable on the arrears of interest. The deed also provides for the payment of the principal on 31 August in any year after five years from the date of the deed with a further provision that, on default, interest at 12 per cent, shall be payable. It appears to have been assumed by all parties, though this is not clear from the translation of the deed, that the deed should be construed as providing for payment of interest at 12 per sent on the principal if the principal was not paid on 31 August 1896.

(3.) The District Judge disallowed the plaintiff's claim for interest at 12 per cent, as regards both principal and interest and gave the plaintiff a decree for the amount advanced with interest at 7 per cent.