KESHO RAM Vs. RAM LAL SAHU

JUDGEMENT

(1.) This is an appeal from the decision of the District Judge in an action for redemption. The only question which arises is whether the mortgagee is entitled to set off certain sums in the mortgage account. The Judge in the Court below has held that on the state of affairs as it existed the mortgagee should have given up possession of the property which was a house on 9 August 1930. It is unnecessary to state the very complicated facts relating to the matter, and I content myself with referring to the fact that the mortgagee who is the appellant before this Court was a second mortgagee, there having been a previous mortgage of the property by the proprietor to one Sukni Kuer. Sukni Kuer's mortgage was paid off, it would appear, by the mortgagor respondent borrowing from the present mortgagee appellant. In those circumstances the mortgagee in the Court below contended that he was entitled to a set off in the mortgage account in respect of three items amongst others and with these three items I am concerned in this case.

(2.) Sukni appears to have sued the mortgagee for rent. I should have stated that one of the terms of the mortgage bond in this action was that as regards the principal and interest the rent of Rs. 45 per month should be set off by the mortgagee. The rent approximately was something in excess of Rs. 500 a year, that is, Rs. 45 a month and the interest on Rs. 2,000 borrowed amounted to Rs. 240. We therefore see that there was a balance after the interest had been liquidated and this balance was to be set off as against the principal. The three items mentioned are first, costs of the mortgagee who was ultimately successful in a certain litigation as regards rent; secondly, the sum of money which was advanced by the mortgagee to Ramlal who claimed to be entitled to this property under the will of Radhika Debi, his wife. This sum of money was advanced for the purpose of enabling Ramlal to take out Letters of Administration with the will annexed.

(3.) The third was an item of Rs. 73 odd paid by the mortgagee in possession for municipal taxes. I will deal with the items in the order reverse to that I have mentioned them. As regards Rs. 73 odd paid for municipal taxes there is no question that the mortgagee is entitled to set this off. The only question is whether he is entitled to set off in the account which will eventually be taken in an application for mesne profits by the mortgagor or whether he should set it off in the mortgage account; by that I mean whether he was entitled to remain in possession for a period longer than that decided by the learned District Judge in the case.