KANNOMKOT KELU KURUP Vs. CHERIYATH MANAYIL PARU AMMA

JUDGEMENT

(1.) The main question for decision in this appeal is a short one and it arises on a few undisputed facts. The appellant as the successor in interest of the mortgagor sued the respondent in whom the mortgage right has become vested for redemption of an usufructuary mortgage of Kuzhikhanam rights in the suit paramba. The mortgage, marked Ex. A in the case, was executed on 25 January, 1894 and it provided that out of the rents and profits of the paramba, the purapad (rent) payable to the jenmi should be paid every year and the balan6e should be appropriated in lieu of interest on the principal money. The mortgagee not having paid the rents due to the jenmi according to the stipulation in the deed, the latter brought a suit in 1909 against the predecessors-in-interest both of the appellant and of the respondent herein and obtained a decree for possession of the property with the rents due. This decree, however, was not duly executed and has now become unenforceable owing to lapse of time.

(2.) The contention of the respondent is that the appellant is not entitled to claim an adjustment of these unpaid rents due to the jenmi against the mortgage amount and compensation for improvements payable by the appellant as a condition of redemption, as the benefit of the non-payment of these rents, which have now become irrecoverable should go to him, the appellant being only entitled to be kept indemnified against the claims of the jenmi. This contention was rejected by the trial Court, but was upheld by the learned District Judge on appeal and is urged again before me on behalf of the respondent.

(3.) It is not disputed that the question has to be decided with reference to the provisions of Secs.76 and 77 of the Transfer of Property Act. Section 76 so far as it is material here provides: When during the continuance of the mortgage, the mortgagee takes possession of the mortgaged property...(h) his receipts from the mortgaged property shall, after deducting the expenses properly incurred for the management of the property and the collection of rents and profits and other expenses mentioned in Clauses (c) and (d) and interest thereon be debited against him in reduction of the amount, if any, from time to time, due to him on account of interest and, so far as such receipts exceed any interest due, in reduction or discharge of the mortgage money; the surplus if any, shall be paid to the mortgagor.