MT. SAKHU Vs. KASHIBA

JUDGEMENT

(1.) THE mortgage which is sought to be enforced in this case was executed on 20th January 1914. The consideration was a loan of Rs. 1,400 which the mortgagor agreed to repay in instalments of Rs. 200 each, with interest, on Paush Wadya 13th, which is approximately the 20th January of each of the following seven years. Interest on the loan was to be at 9 per cent., but any sum in default was to carry interest at 24 per cent, and the whole amount still due was to be paid at once on the occurrence of two defaults. The mortgagee was in possession of the mortgaged field from May 1917 to February 1925, and made Rs. 150 out of it in each of those eight years. He sued for the enforcement of his mortgage on 13th July 1925, claiming Rs. 3,500.

(2.) THE claim for more than twice the principal is based on the quaint plea that a mortgagee in possession of the mortgaged property is not subject to the rule of damdupat. This was apparently taken in reliance on the head-note in the report of Panduji v. Panduji [1916] 12 N.L.R. 1. That head-note states a proposition that is obviously wrong and does not appear in the judgment. The matter is too simple to need discussion. The rule of damdupat is applicable to all mortgages whether the mortgagee is in possession or not, if it is otherwise applicable, but in. some cases, where the mortgagee is in possession, it does not apply, in the sense of being of any effect, because the payments made every year from the income of the property keep the amount of the interest below the amount of the capital. In each case it is merely a matter of calculation.

(3.) IT seems to have been assumed that the plaintiff is entitled to all the penalties for default set out in the bond. Continuing to assume that, the account would stand as follows : In January 1915 the interest payable was at 9 per cent, on the whole sum, that is Rs. 126. For the second year it would be at 9 per cent, on Rs. 1,200 and at 24 per cent, on Rs. 326, and thereafter at 24 per cent, on the whole sum due. At the end of the fourth year the total shown by the account would be Rs. 3128, but by the rule of damdupat not more than Rs. 2800 would be due, and that would be reduced to Rs. 2,650 by the payment of Rs. 150. Similarly, in June of each of the next seven years, that is up to a month before the institution of the suit, the amount due would be brought down to Rs. 2,800 by the rule of damdupat and then to Rs. 2,650 by the payment of Rs. 150.