Gurusami Thevan vs Ganapathi Chetti and Others

Sundaram Chetty, J.—Defendant 5 is the appellant and his appeal arises out of a suit brought by the deceased plaintiff, whose legal

representative is the present respondent 1 for the recovery of a sum of money alleged to be due on a registered usufructuary mortgage bond dated

30th December 1912 and executed to the plaintiff by defendants 1 to 3 and by defendant 1 as the guardian of defendant 4 for Rs, 700. The

mortgagee was to enjoy the mortgaged property in lieu of interest for a period of five years. Defendant 5 is a subsequent purchaser of the

mortgaged property. The main point in dispute in the suit is one relating to the discharge of the suit mortgage debt. The original suit mortgage deed

was not produced by the plaintiff but it has come to Court from the custody of defendant 5. The plaintiff has set forth his version as to how

defendant 5 came by this document, where as defendant 5 has pleaded that this document was got back after discharging the mortgage debt. The

mortgage bond, Ex. 1, purports to bear an endorsement of discharge signed by the plaintiff. In view of the facts disclosed in the pleadings, the trial

Court, taking a correct view of the presumption of law in a case of this kind framed issue 1 in, a proper way, so as to throw the incidence of the

burden of proof upon the plaintiff. Issue 1 framed by that Court is, whether the suit mortgage deed remained undischarged.

On this question, both sides adduced oral and documentary evidence and after a full and careful view of the entire evidence and the

probabilities, the trial Court came to the conclusion that the mortgage bond remained undischarged. On that footing it gave a decree in plaintiff''s

favour. The lower appellate Court also came to the same conclusion and confirmed the decree of the first Court. There being a concurrent finding

on this question of fact by both the Courts, it is not possible to reject that finding, unless it is shown that it is vitiated by any of the flaws

contemplated in Section 100, Civil P.C. The way in which the lower appellate Court has dealt with this question indicates to my mind that it has

given duo weight to the circumstances disclosed in the evidence which favour one side or the other; and after weighing the evidence and

probabilities on both sides it has thought fit to believe the plaintiff''s version as true and more probable. All that can be said in favour of defendant 5

in this case is, that he starts with an initial presumption in his favour. That is a rebuttable presumption and the question, whether a presumption is

rebutted or not is a question of fact to be determined according to the circumstances of each case. An attempt has been made by the learned

advocate for the appellant to canvass the evidence adduced in this case, in order to show that the lower appellate Court was not quite correct in

preferring one kind of evidence to the other. It is open to that Court to appreciate the evidence in the best manner according to its discretion, and

where evidence has been properly admitted on both sides, even if its conclusion on a question of fact is erroneous, it cannot be interfered with in

second appeal. It is unnecessary for me to review the evidence as in a first appeal and come to a conclusion on this question of fact. I consider that

the finding of both the Courts below on this question is entitled to acceptance and I accordingly confirm that finding.

One other point had been taken for the first time in this second appeal, and that relates to the award of interest to the plaintiff on the mortgage

amount for the period subsequent to his dispossession. Somehow, defendant 5 failed to take an issue on this point and it does not appear that he

took up this objection even in the appeal preferred by him against the decision of the first Court. No doubt, in para. 12 of his written statement he

has taken the plea that no damages are payable by him to the plaintiff as claimed in the plaint. The Courts below have thought fit to award interest

at 12 per cent for the subsequent period as a fair and reasonable rate of interest. The question is, whether under the terms of the mortgage deed,

Ex. 1, interest is allowable to the plaintiff after the period of five years fixed for redemption. The deed recites that after the expiration of this period

the principal amount of Rs. 700 should be paid to the plaintiff and the mortgage redeemed. If without the payment of the principal amount to the

plaintiff, he is deprived of possession of the mortgaged properties, is he nob entitled to reasonable interest by way of damages on grounds of

equity? I take it that the lower Courts have allowed interest on equitable grounds. The rate . fixed is not unduly high and there is no reason to

reduce that rate. But the question is, whether the interest so awarded can be claimed along with the principal amount of the mortgage and made

chargeable on the mortgaged property.

As to this, reliance is placed on the appellant''s side on the decision in Manikchand Manganchand v. Rangappa Kondappa AIR 1921 Bom. 28.

In that case, the mortgage bond itself recites that after the stipulated period, the principal amount was to be recovered without interest by sale of

the mortgaged property. In the mortgage deed in question in the present case there is no such express provision negativing the right of the

mortgagee to interest after the period fixed in the dead. On the other hand, the decisions in Linga Reddi v. Sama Rau [1894] 17 Mad. 469 and

Sita Nath Ghose v. Thakurdas Chakravarthy [1919] 46 Cal. 448, referred to by the learned advocate for respondent 1, show that interest is

allowable in a case of this kind and it can be made also a charge on the mortgaged property. The observation in the Madras case is to the effect

that, if the plaintiff was entitled to the usufruct of the mortgaged property in lieu of interest, it is permissible to award a reasonable rate of interest as

damages which may be more or less equivalent to the usufruct of the land. The learned Judges further observed that such interest when allowed

can be made a charge upon the property. The same view has been hold in the Calcutta case also. I am therefore of opinion that there is nothing

illegal in allowing interest to the plaintiff subsequent to the period of five years fixed in the mortgage bond and in the direction ,to make this interest

also recoverable by the sale of the mortgaged property.

In the result, the second appeal fails and is dismissed with costs of respondent 1. In view of the undertaking given by the appellant when

obtaining a stay order in C.M.P. No. 4498 of 1927, subsequent interest on the amount due under the mortgage-decree will be taken to be nine

per cent per annum instead of six per cent from 5th January 1928.