Parasurama Pattar vs Venkatachalam Pattar and Others

We accept the finding of the Lower Appellate Court that Exhibit II is not binding on the plaintiffs, nor do we see any reason for differing from its

conclusion that the defendants have not proved any circumstances which could be held to estop the plaintiffs from setting up the invalidity of Exhibit

III as against them. One further contention remains to be dealt with, namely, that the plaintiffs are not entitled to purapad or rent for more than six

years before the date of the suit. The facts which lead to this contention are that the Karipanayam deed Exhibit I dated 1867) as modified by the

documents of further charge (Exhibit II dated the 1st May 1876 and Exhibit III dated the 14th July 1881) provides that the mortgagee should

deliver the 200 paras of paddy a year to the plaintiffs, that no paddy was delivered subsequent to the Karar (Exhibit XII dated the 4th March

1889), and that the plaintiffs, in consequence, claim to be entitled to have credit for all the rent due under the mortgages at the taking of account for

the purposes of redemption. The Lower Courts have awarded the plaintiffs rent due after the death of Rama Pattar, the executant of Exhibit XII

who was authorised to receive the rents during his lifetime. It is contended that the rent due for more than six years before the date of the suit is

barred by limitation. We are of opinion that the contention should not be upheld. There can be no doubt : that 200 paras of paddy a year was to

be delivered by the mortgagee in his character as mortgagee, although a separate kychit was executed at the time of the mortgage. The lease

cannot be regarded as a transaction distinct from the mortgage. The position is, therefore, the same as if the defendant''s who are mortgagees in

possession had agreed to deliver the plaintiffs 400 paras of paddy a year out of the total usufruct of the mortgaged property, retaining the

remainder of it towards the interest due to them on the mortgage money. According to the mortgage deed therefore, the mortgagor was bound to

pay the principal amount of the mortgage to the mortgagee at the time of redemption and the latter was bound to deliver to the former 200 paras of

paddy every year out of the usufruct. Both are obligations arising under the mortgage. The fact that the mortgagee was to pay the purapad every

year does not exempt him from liability to pay it a t the time of the redemption if he fails to pay at the stipulated time. There are several cases where

although a person may be entitled to require payment at a particular time, he is not bound to insist on enforcing payment then, and limitation would

not run against him if he does not do ho. Thus an agent may promise to make remittances to his principal at stated times, and a partner may be

entitled to receive certain payments from time to time. But stipulations of this sort would not prevent the principal from receiving all the amounts

that might have accrued due to him when the agent is called upon to account or the partner from claiming everything which has not been paid to

him, at the time of the winding up of the partnership. Similarly, so long as the relationship of mortgagor and mortgagee continues, the obligation of

the mortgagee to make all payments provided in the mortgage.deed also subsists. At the time of redemption, when the mortgagor is required to

pay the amount due by him under the mortgage, the mortgagee is also bound to give him credit for all payments which he is bound to make under

it. The rule, of course, will not apply to any payments that the mortgagee is liable to make to the mortgagor otherwise than under'' the contract of

mortgage. But as already observed, the agreement to pay purapad in this case is part of the mortgage transaction. This view has been adopted by

the Calcutta High Court in several cases (Narasingh Narayansingh v. Babu Lahputty Singh I.L.R (1879) C. 333, Nanda Sahu v. Ram Lakhar

Singh (1907) 9 C.L.J. 633 and Sheo Saran Singh v. Mahabir Pershad Singh ILR (1905) C. 576 and see also Ramanath Mukcopadhyaya v.

Brahmamoyi Debi (1905) 1 C.L.J. 531 5 and Doolee chand v. Otnda khanum ILR (1880) C. 377. In this case there is no obligation on the

mortgagee to render an account of the profits of the mortgaged property as the parties have expressly dispensed with this by providing that the

mortgagee should be entitled to appropriate them towards interest with the exception of 200 paras of paddy which he is to deliver to the

mortgagor. But he is liable to be debited with the payments he was bound to make to the mortgagor in the same manner as he would be debitable

with the surplus proceeds after making all proper deductions if he was bound to account for the profits. We therefore disallow the contention. The

Lower Courts have allowed interest on the arrears of purapad at 10 percent, per annum. The mortgage deed and kychit contain no provision for

the payment of interest. The mortgagors have allowed a long time to elapse without enforcing their right to receive the purapad every year. In the

circumstances, they should not have been allowed a higher rate than 6 per cent, per annum. With this modification we dismiss the second appeal

with costs. Time for redemption is extended up to the end of July 1913.