RUKHMINIBAI SUBRAYA Vs. VENKATESH BAB PRABHU

JUDGEMENT

(1.) The question of law in this case is whether the present suit is barred under Section 13 of the Civil Procedure Code. The facts material for the point may be stated thus. The appellant mortgaged his property to the respondent in 1884 on the terms that the mortgagor should redeem it on pay. ment of the principal and that the mortgagee should be in possession and enjoy the profits in lieu of interest. It was, in short, a usufructuary mortgage. It is common ground that the respondent as mortgagee went into possession under these terms. In 1901 the appellant tendered the amount of the principal to the respondent but it was not accepted, The appellant in consequence filed a suit under Section 62 of the Transfer of Property Act to recover possession of the mortgaged property and at the same time under Section 83 of the Act deposited the amount of the principal in Court as the amount payable on the mortgage. The Court passed a decree for possession as claimed by the appellant. The suit which has led to this second appeal was brought by him to recover mesne profits from the respondent from the date of the deposit to the date when he recovered possession of the mortgaged property from the respondent in execution of the redemption decree in the previous suit. The lower Court has disallowed the claim for mesne profits on the ground of res judicata.

(2.) The question in this second appeal is whether that is right. Its determination depends upon the nature of the legal relation in which the parties stood to each other during the period to which the mesne profits claimed by the appellant relate. In other words, the question is, did the respondent continue in possession of the property after the date of the deposit as a mortgagee, with a liability to restore the property to the appellant and account for the profits arising in consequence of his refusal to accept a tender properly made by the appellant, or did he from that date cease to be a mortgagee and become a trespasser pure and simple liable to be ejected as holding the property wrongfully ?

(3.) The answer to this question is supplied by the material provisions of the Transfer of Property Act. By Section 58 of that Act the terms mortgagor and mortgage are defined.