Rudra Narayanan Padmanabharu and Others vs Vappu Aliyaru Kunju and Others

Gangadhara Menon, J.—Plaintiffs are the Appellants. The suit was for redemption of the plaint properties that were outstanding on mortgage with the Defendants under Ex. A. Exhibit A was for 27015 fanams. It provided for an annual payment of michavarom of 35 paras of paddy to the mortgagors. The Plaintiffs alleged that michavarom was in default from the year 1101 onwards. For this Plaintiffs claimed interest at the rate of 20 per cent, per annum from the respective dates of default. The paddy due as arrears of michavarom and interest thereon till the date of suit was commuted into money at the nirak rate on the date of suit and adjusted against the mortgage money and the balance of the mortgage amount was deposited in Court along with the plaint and the Plaintiffs claimed mesne profits from the date of Suit at 400 paras of paddy per annum. Defendants 2 to 7 contended that arrears of michavarom could be valued only at the nirak rate prevalent on the date of default of each year''s amount, that interest for the arrears could be awarded only as damages and therefore cannot exceed 6 per cent per annum, that there was not proper tender of the mortgage amount since the Plaintiffs have not deposited the entire amount due and that therefore the Plaintiffs are not entitled to any mesne profits as claimed in the plaint. The rate of mesne profits claimed was also questioned as highly excessive. The learned Judge upheld the plea of the Defendants in respect of the question of the commutation rate for the arrears of michavarom and also in regard to the, question of interest for arrears of michavarom due. Therefore he found that the Plaintiff have not deposited the full amount due to the mortgagees and disallowed the claim for mense profits. Thus a decree was given, to the Plaintiffs to redeem the properties on deposit of the additional amount due to the mortgagees. From the date of such deposit the Plaintiffs were allowed interest on the whole amount in deposit at 9 per cent per annum. Plaintiffs were also allowed to realise their costs from the Defendants, while Defendants 2 to 7 were also allowed to recover their costs from the Plaintiffs. From the above decree Plaintiffs have come in appeal. Defendant 2 has preferred a memorandum of objection.

It is contended by the learned advocate for the Appellants that the finding of the learned Judge that arrears of michavarom have to be valued at the nirak rate prevalent on the date of default of michavarom for each year is not warranted by law. He argues that the michavarom being payable in kind, the arrears of paddy due have to be valued at the commutation rate on the date of suit. There is considerable force in this argument. The question has come up for consideration in the Full Bench ruling reported in 1948 Trav LR 110 (A). It was held in that case that "in suits for recovery of paddy the paddy has to be valued at the commutation rate prevailing on the date when the suits were instituted." In Ex. A mortgage deed the Defendants agreed to pay 35 paras of paddy as michavaram. The payment contemplated was in kind and the mortgagors had the right to get it in that form. The Defendants having committed default'' in the payment, the Plaintiffs are seeking to recover the same by adjusting it against the mortgage-money due to the Defendants. We are, therefore, of the view that the arrears of michavaram due till the date of suit have to be valued at the commutation rate prevailing on the date of suit.

The Plaintiffs claimed interest for arrears of michavaram at 20 per cent per annum from the date of default. There is no stipulation in Ex. A for payment of any interest for arrears of michavaram. Interest can, therefore, be claimed only by way of damages. In the case of money interest as damages is awarded at 6 per cent per annum. We think therefore that in the case of paddy, interest as damages can be awarded only at the rate of 10 per cent per annum.

The value of the arrears of michavaram and interest thereon at the commutation rate of Rs. 1 1/2 on the date of suit, comes to Rs. 2113 1/8. After deducting that amount from the mortgage-money the balance of the mortgage amount payable on the date of suit was Fs. 12223 1/8. Plaintiffs have deposited in Court only Fs. 10722 1/2. The tender of this amount which falls short of the amount actually due could not be considered as proper. The claim of the Appellants for mesne profits cannot therefore stand.

Plaintiffs, however, are entitled to michavaram as stipulated in Ext. A from date of suit till this date with interest thereon from the date of default of each year''s amount at the rate of 10 per cent per annum. The amount of paddy that is thus due till this date comes to 261 1/2 paras of paddy. Plaintiffs are allowed to set-off the value of this also from the mortgage-money due to the Defendants. The paddy will be valued at the commutation rate prevalent on this date. After such a set-off it is clear that the amount already in deposit will exceed the amount due to the Defendants. Therefore Plaintiffs are entitled to recover possession of the plaint properties forthwith. They are also entitled to mesne profit''s of the properties from this date. But there is no reliable evidence in this case regarding mesne profits. In the circumstances of this case we think that we can safely take interest on the mortgage money of Fs. 27015/- at the rate of 9 per cent, per annum to be the mesne profits of the propertied. This amount comes to Fs. 2431 and 1/3 per annum. Plaintiffs will, therefore, recover mesne profits at the rate of Fs. 2431 and 1/3 per annum from this date till date of recovery of properties.

There remains only the question of costs. In the circumstances of this case we think that the proper order is to direct the parties to suffer their costs throughout.

In the result in modification of the decree of the lower Court Plaintiffs are given a decree as indicated in paragraph 5 supra. The value of michavaram due till date of suit with the interest as indicated above will alone be set off as on date of suit against the mortgage money due. The value of arrears of michavaram from date of suit till this date at the commutation rate of this date will also be set oil against the balance of the mortgage amount due as on this date. Out of the money in deposit Defendants will be paid the amount due to them on the above basis. The balance will be allowed to be withdrawn by the Plaintiffs. Plaintiffs are allowed to recover from the Defendants and the mortgage-money due to them, as mesne profits. Fs. 2431 and 1/3 per annum, from this date till the date of recovery of the properties or till the expiry of three years whichever event happens first. The mortgage money found due to the Defendants will be drawn by Defendants 2 to 7 with the written consent of the other Defendants or by all the Defendants jointly. The parties will suffer their costs throughout. The appeal is allowed to the extent indicated above and dismissed in other respects. The memorandum of objections is also dismissed.