P. V. Arumugam Pillai and Another vs Malipathi Muthiah Chetty

Phillips, J.—This is an appeal in reference to an account taken upon a mortgage of which redemption has been decreed. The first objection

taken by the appellant is that the interest on the principal and other amounts are not charged on the property, and he relies upon a decision of mine

in Bysani Madhava Chettiar''s Charity Fund v. Krishnaswamy Chetty A. I. R. 1923 Mad. 71 In that case I held, upon the construction of the

document, that the interest upon the mortgage-money was not secured upon the property and that it was a personal covenant to pay the amount.

The language of the document now under consideration is in some respects similar, but I think it must be distinguished from the deed in the other

case. In the former case one important stipulation was a promise to repay the principal amount only on a certain date, from which it cm reasonably

be inferred that amount, and not that amount plus interest, was the mortgage amount. Here we have a recital as to the principal; then follows the

recital that interest is to be at the rate of 1� percent per mensem; and, following that, we have the stipulation which the appellant contends is

merely a personal covenant to pay after deducting the rent of Rs. 12 received, that is:

We shall ourselves pay the balance of Rs. 3 towards interest and bear the expenses of assessment, quit rent, repairs, etc.

This is qualified by another statement that

as soon as you make demand for the total amount at any time we shall pay it forthwith.

The total amount consequently includes the principal as well as any other amount that is. due, and there is no distinction drawn between the

principal and other amounts. I think it may reasonably be taken that it stands upon the same footing. The fact that there is a recital that

if rent is not realized we shall pay interest of Rs. 15 every month above mentioned without raising any objection

is not I think important, for the provision is only to apply when no rent at all is being reserved. I must, therefore, reject this contention and hold that

the interest, assessment, etc., are charged upon the property. The commissioner who took the accounts has had some difficulty in arriving at the

correct figure because, prior to 1913, the mortgagee failed to keep accounts as he was bound to do u/s 76, T. P. Act. No doubt an inference

adverse to his claim may be drawn from this fact, and it is contended that as he had not proved the payment of municipal taxes, quaintest and

repairs, he is not entitled to claim the same. It is quite clear that the municipal taxes and the quit rents have been paid, and the lower Court has

found on the circumstantial evidence that these taxes must have been paid by the mortgagee in the absence of definite evidence on either side as to

such payment. I think this reference may be supported in so far as the municipal taxes and quit-rents are concerned. As regards repairs: no such

inference is possible because the amount of repairs is not a fixed amount and varies according to the wishes of the landlord or of the mortgagee, as

the case may be, and may be payable or have been paid by the tenants. I think, therefore, that an inference from the absence of an account must

be drawn against the mortgagee and hold that the money calculated by the commissioner for repairs prior to 1913 must be excluded. The lower

Court has held that the commissioner has allowed too much for repairs, and, without going into the question, has simply reduced the

commissioner''s figure by a lump sum without giving the data for such a reduction. This, I think, is wrong. The repairs have been estimated in the

preliminary judgment as costing Rs. 500 and that amount is the most that can be allowed in this respect.

Another mistake committed by the commissioner is in charging the interest on taxes and repairs before deducting the rent received. This is

clearly wrong. The rent should certainly he deducted before interest is charged.

Apart from this I am of opinion that if there is a charge of interest on taxes, etc., the mortgagor would equally be entitled to interest on the

excess of rent which was received in many years, but, inasmuch as there is no stipulation in the document for the payment of interest, this interest

may well be left out of account altogether.

Section 72, T. P. Act, will not help the mortgagee, for there is no evidence that taxes and quit-rent were paid in order to save the property from

destruction or loss. Accounts have, therefore, to be taken in the light of the above remarks, for the rates of rent and taxes given by the Court are

not seriously questioned here.

This appeal is adjourned till Monday next in order to ascertain the amount due in accordance with the above conclusions.

As a result of the above calculation a small balance is found due to plaintiff. There will be, therefore, a decree for possession of the suit property

with costs of this appeal. The memorandum of objections is dismissed.