SHEO NANDAN Vs. MOHAMMAD KHALIK

JUDGEMENT

(1.) This is a second appeal on behalf of plaintiffs 1 and 2 against the decree of the lower appellate Court, allowing redemption of a deed of mortgage by plaintiff 1 only and not by plaintiff 2, and on payment of a sum of money amounting to Rs. 858-8-0. The main points In appeal are that the sum of moneyshould only be Rs. 125, the original mortgage money, and that redemption oughtalso to be allowed to plaintiff 2. We may mention here that during the hearingof this appeal we express our willingness to remit an issue to the lower appellate Court for a finding in regard to whether the expenditure was such as came under Section 72 or Section 76, T.P. Act. But the learned Counsel for the respondents opposed the suggestion, and accordingly we proceed to dispose of the appeal by deciding the question under Order 41, Rule 24. The facts are as follows:

(2.) There was a plot 28, area 2 bighas 8 biswas odd on which certain trees stood, which was mortgaged on 5 December 1892 to the predecessors of the defendants. The plot was recorded as an occupancy holding, but at the time there was besides the trees a large pit from which it is said that bricks had been taken. The plot was let for the purposes of a grove and the defendants claim to have levelled the ground and made a boundary ditch and a mud wall round it and planted a number of palm trees on it. In the written statement the defendants claim that on redemption of the usufructuary mortgage the following sums should be paid by the plaintiffs:

(3.) Of these sums the lower appellate Court has allowed (a), (b) and (d). The appellants claim that (a) and (b) should not be allowed. The lower Courts have allowed (a) and (b) on the ground that the expenses in (a) were incurred by the defendants under Section 72(b), T.P. Act, that is, money spent for the preservation from destruction of the mortgaged property. The question before us is whether the lower appellate Court had legal evidence before it on which it could come to a finding that the whole amount of Rs. 286-6-0 was money spent in this manner under Section 72(b), or whether it was money spent as necessary repairs of the property under Section 76(d). In the former case a mortgagee is permitted to add the money spent to the principal money at the rate of interest payable on the principal, or, if no such rate is fixed at the rate of 9 per cent per annum, which has been allowed by the lower appellate Court. In the latter case the mortgagee cannot claim repayment of money spent on such necessary repairs from the mortgagor. The lower appellate Court accepted as correct and based its finding on an account-book which contains accounts of expenditure by the mortgagee from the year of the mortgage in 1892 up to 1915, that is for a period of 23 years. The mortgage-deed does refer to the existence of a pit, and provides that the mortgagee should level the ground and add that money to the mortgage money. The account-book in question mentions items for the first few years of the mortgage, which was executed in Sambat 1949, as follows: