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Judgment
Govinda Menon, J.—Various questions have been argued by Mr. Dhikshitalu for the appellants and for a proper understanding of those
points it is necessary to set out in brief outline the facts which resulted in this litigation. Defendants 1 to 3 and 9 and 10 in O. S. No. 22 of 1944 on
the file of the Court of the Subordinate Judge of Chicacole are the appellants in this appeal. Respondents 1 and 2 as plaintiffs brought a suit for
redemption of two mortgages, Exs. D-1 and D-2 dated 19-6-1922 and 2-4-1923, respectively. The property belonged to defendants 9 and 10, a
husband and wife, as tenants-in-common. Both of them mortgaged the properties by two mortgages to defendants 1 to 8. On the basis that each
one of them had a separable interest in the properties, a creditor of defendant 9 brought O. S. No. 212 of 1922 on the file of the District Munsif of
Vizianagaram for realisation of a sum of money and got a decree. In execution of the decree, a half-share in the equity of redemption of the
mortgaged properties was sold and purchased by those creditors. Constructive possession of the same was delivered over to them by the delivery
receipt dated 6-6-1927. The purchasers were, G. Appalanaidu and Rajunaidu. These purchasers sold what they had purchased to the plaintiff for
a sum of Rs. 2500 on 31-1-1923. Thereafter, defendant 10 sold a half share of her right, that is, one fourth of the equity of redemption to
defendants 1 to 3 on 24-4-1928. It is admitted that such a sale has taken place though the sale deed has not been exhibited before the Court. On
12-4-1930, by Ex. P-2, defendant 10 sold the remaining one-fourth share in this property to the plaintiffs. The result of these transactions is that
the plaintiffs have become owners of the three-fourths of the equity of redemption and defendants 1 to 3 who were some of the mortgagees
became the owners of the remaining one-fourth of the equity of redemption.
While matters were in that state the present plaintiffs brought O. S. No. 265 of 1933 on the file of the District Munsif''s Court, Vizhakapatnam,
evidenced by EX. D-4 in which the plaintiffs claimed to be in possession of the half share and contended that they were entitled for partition and
recovery of possession of the half share. This suit was laid on the basis of the assignment of the half share of defendant 9 by the purchasers
Appalanaidu and Rajunaidu. No claim was set up on the footing of the plaintiffs'' purchase of the one-fourth share of defendant 10 under Ex. P 2.
We are not fully conversant with the details of that litigation but we find that on 11-10-1933, on the ground that the suit as framed was not
maintainable, it was dismissed by the trial Court. An appeal was taken to the Court of the Subordinate Judge, Vizhakapatnam, as A. S. No. 133
of 1934. Exhibit P-4 is the decree therein by which it was found that the plaint was ordered to be rejected under Order 7, Rule 11 , Civil P. C.
The outcome of the decision in A. S. No. 133 of 1944, is that the provisions of Order 7, Rule 11, were invoked and the plaint was rejected. In the
meanwhile, after purchasing the equity of redemption from Appalanaidu and Rajunaidu, tha plaintiffs paid in all a sum of Rs. 1250 in two
instalments to the mortgagees namely, defendants l to 8 on 24-4-1928 and 25-4-1928 respectively. It it admitted and the matter is now beyond
question that the mortgagees have received half the amount of the mortgage sum namely Rs. 1250. The present suit is for redemption and partition
of the plaintiffs'' three-fourth share of the property, by paying the balance of the proportionate mortgage amount and also for claiming the mesne
profits proportionate to the plaintiffs.
The learned Subordinate Judge has decreed the suit practically as prayed for except disallowing one item by name Baddi madi which is the
subject-matter of the memorandum of cross objections by the respondents 1 and 2 (plaintiffs). We will deal with that at a later stage.
Exhibit D-1 is a mortgage for a sum of Rs. 2000 dated 19-6-1922 and therein it is stated that out of the income of the suit properties which was
fixed at Rs. 255 the mortgagee was to appropriate the interest at the rate of 9 annas per cent. per mensem. This amount came to Rs. 135 and a
sum of Rs. 70 has to be appropriated by the mortgagee for payment of kattubadi, quit rent, land cess etc., for the suit properties. The balance
income of Rs. 50 and 2 1/2 puttis of paddy were to be paid by the mortgagees to the mortgagor by the 30th of Palguna Bahula of each year and
receipts taken for that payment. The second mortgage for Rs. 600 recites the earlier transactions and it is more or less in the nature of an additional
advance of a further mortgage amount. It is not necessary to refer to its terms in detail.
What has happened is that even though the plaintiffs'' predecessors, Appalanaidu and Rajunaidu got constructive possession of the joint right to
the properties on 6-6-1947 neither they nor the plaintiffs ever collected from the mortgagers the proportionate surplus profits due to the
mortgagor. So far as the plaintiffs are concerned, they were entitled to Rs. 37-8-0 out of the money surplus and 1 and 7/8 puttis of paddy out of
the 2 1/2 puttis of paddy per year. It is the case of the contesting defendants that defendant 9 even though all his rights, namely, the equity of
redemption which he possessed over the properties were sold away by O. S. No. 212 of 1922, still be collected from the mortgagees surplus
profits every year. On this basis Mr. Dhikshitalu for the appellants contends that defendant 9, after he was divested of all his rights in the equity of
redemption, having collected the surplus profits for a period of 12 years has acquired adverse possession of the equity of redemption as against the
plaintiffs and therefore the plaintiffs'' suit is not maintain, able. In other words, what the learned counsel contends is that the right to collect part of
the surplus proceeds should be deemed to be a right to possession inherent in the purchasers of a part of the equity of redemption and they not
having exercised it for a period of 12 years, must be deemed to have lost it and the same acquired by defendant 9 as if he was a stranger. The
argument is put in this way. Supposing a usufructuary mortgagee in possession liable to pay the surplus profits every year to the mortgagor and
without paying that to the mortgagor pays it to a third party for a period of 12 years, then that third party acquires the equity of redemption by
prescription and despite the fact that the usufructuary mortgagor has, under Article 148, Limitation Act, 60 years from the date of the mortgage to
redeem the mortgage, his right to redeem is lost by the third party being paid the surplus profits. No authority has been shown by the learned
counsel in support of this novel argument of his. Under article 148, Limitation Act, it is open to a mortgagor who has usufructuarily mortgaged his
properties to redeem the mortgage before 60 years elapse from the date of the mortgage and at the time of such redemption under the provisions
of T. P. Act, he is entitled to ask the mortgagee to account for the surplus income and profits which the latter has realised during the course of his
possession of the property. Exhibit D- 1 does not say that the surplus profit is equivalent to rent at all. Nor does it make the surplus profits a
charge on the mortgage money. The mortgage is for a period of five years. It is not open according to the terms of the document, for the mortgagor
to sue separately either on the small cause side or on the original side for the recovery of the surplus profits every year and get the same All that the
mortgagor can do will be to ask the mortgagee to account for the profits which he has realised and which he ought to have paid every year to the
mortgagor at the time of redemption. In a case where the usufructuary mortgagee has been dispossessed by a third party who remained in
possession without recognising even the mortgagor''s title, this Court has held in Peria Aiya Ambalam v. Shanmugasundaram, 38 Mad. 903 : A. I.
R. 1914 Mad. 334 that what the trespasser gets is only a right to the mortgage and he does not prescribe an absolute title to the equity of
redemption as against the mortgagor. Applying those principles to the facts of the present case, it seems to us that the mere fact that the mortgagee
have been paying surplus profits for a period of 12 years to defendant 9 who was once the owner of part of the equity of redemption should not be
construed as taking away from the purchasers of the equity of redemption the right to redeem inherent in them under the provisions of the
Limitation Act for a period of 60 years. This contention of the learned counsel, unsupported as it is by any authority by which we are bound, has
therefore to be rejected.
The second argument is that according to the sale deed Ex. P- 2 dated 12-4-1930, a sum of Rs. 1250 has been reserved with the present
plaintiffs for payment of the mortgage money due to the mortgagees and this not having been paid, EX. p. 2 became a document without
consideration and as such nominal and void. It is further argued that the recital of a payment of Rs. 280 the balance consideration under Ex. P. 2,
was a fictitious one and in fact no payment has-been made The learned Subordinate Judge has found that the sum of Rs. 250 has been received as
was recited in the mortgage but by defendant 9 the husband of defendant 10. He has not gone into the box to disprove the apparent tenor of the
recital contained in Ex. p. 2. In the absence of any evidence to show that the sum. of ES. 250 has not been paid by the plaintiffs we are in entire
agreement with the Subordinate-Judge that the contesting defendants have not discharged the onus of proof that lay heavily on them. If the plaintiffs
have not paid the sum of Rs. 1260 being part of the consideration to the mortgagees, the question would only be that as between the seller and the
purchaser, the seller will have an unpaid vendor''s lien over the property sold which he could enforce under the provisions of Sections 54 and 65,
T. P. Act. But no such question arises in a suit for redemption of a mortgage by the purchaser. We do not find that there is any justification for the
argument of the learned counsel.
The third point raised by Mr. Dhikshitalu is that so far as the mesne profits are concerned, the accounting has not been on a proper basis. He
invited our attention to para. 18 of the learned Subordinate Judge''s judgment where the learned Judge has stated in detail as to how he arrived at
the sum of Rs. 976-14-0 due to the plaintiffs. Mr. Venkategam for the respondents contends that the question about the correctness of the amount
has not been taken in the memo-randum of appeal and as such it is not open to the appellants to canvass it now at the time of hearing. We agree
that in the absence of any grounds and in the absence of any justifiable reasons as to why the account should not be accepted, it seems to us that
the appellants are not entitled to put forward that contention now, This contention has also to be rejected.
Mr. Dhikshitalu then argues that so far as defendants 4 to 8 are concerned, they are also equally liable to pay the amount to the plaintiffs and not
defendants 1 to 3 alone. It seems to me that this argument is correct. Defendants 4 to 8 are equally in possession of the property as defendants 1
to 3, and as mortgagees liable to account to the mortgagors, they must also be made liable on an equal footing as defendants l to 3. The decree of
the Subordinate Judge will be modified to that extent. In other respects we confirm the decision of the Subordinate Judge and dismiss the appeal
with costs.
There is the memorandum of Gross-objections by the plaintiffs who are respondents 1 and 2 regarding a land by name Baddi madi. It transpires
that the original mortgage consisted of a property by name Kanchika madi, but the mortgagors sold away that property to a third party and instead
have exchanged this land by name Baddi madi. It is, therefore, contended by the plaintiffs that since Baddi madi is substituted security for a portion
of the original security, they are entitled to recover possession of portion of that also. But unfortunately for the plaintiffs there is nothing to show that
in O. S. No. 212 of 1922 thia Baddi madi was ever sold or purchased by Appalanaidu and Rajunaidu. Unless it is shown that Appalanaidu and
Bajunaidu have purchased Baddi madi and constructive possession of the same was delivertd over to them on 6-6-1927, it is not open to the
plaintiffs now to say that they are entitled to the property. They are certainly entitled to sell Kanchika madi because whatever transactions
defendant 9 may have had with that property after the execution of the mortgage, such dealings would not affect the mortgagees'' rights They have
also not proved that Kanchika madi was the subject of O. S. No. 212 of 1922. In such circumstances whatever remedies they may have with
regard to the substituted security it is not open to the present plaintiffs to claim Baddi mndi in this suit.
The memorandum of cross-objections also fails and is dismissed with costs.