Judgement

82 Law. Rep. 54 Ind. App. 68 ( 1926- 1927) Panaganti Ramarayanimgar V. Maharaja of Venkatagiri

183

Appeal (No. 154 of 1924) from a decree of the High Court (April 19, 1920) varying a decree of the Subordinate Judge of North Arcot (March 21, 1917).

The suit was brought by the late Maharaja of Venkatagiri, now represented by the first respondent, for redemption of a mortgage with possession dated March 13, 1909; the mortgagors interest had been purchased by the plaintiff on October 22, 1915, and the mortgage had been assigned to the defendant-appellant on September 9, 1913.

The plaintiff by his plaint prayed (a) that an account might be taken of the amount due to the defendants on the securities; (b) on payment delivery of the documents and of possession of the properties free from any encumbrances.

The Subordinate Judge made a decree for redemption on payment of Rs. 2,47,884 with interest. On appeal to the High Court (Wallis C.J. and Seshagiri Ayyar J.) the decree was modified by adding a further Rs.29,711. The question in the present appeal was whether certain other sums should not be brought into the mortgage account, and whether sufficient interest had been allowed. Among those sums was the rent in arrear under a lease of the same date as the mortgage, whereby the mortgagee let to the mortgagor part of the mortgaged property.

The facts of the case, and the effect of the judgments in India, appear from the judgment of the Judicial Committee.

1926. Oct. 25, 26, 28. Upjohn K.C. and Kenworthy Brawn for the appellant.

Sir Herbert Cunliffe K.C., Dunne K.C. and Narasimham for the first respondent.

On the question whether the rent, assuming it was a charge upon the property, as was contended for the appellant, must be paid on redemption of the principal mortgage, reference was made to the Transfer of Property Act, 1882, ss. 58, 60, 62, 98; Order xxxiv, r. 1; Khuda Bakhsh v. Alim-un-nissa (( 1904) I. L. R. 27 A. 313.); Ramaswami Ayyar v. Vythinatha Ayyar (( 1903) I. L. R. 26 M. 760.); Jawahir Singh v. Someshar Datt (( 1905) L. R. 331. A. 42.) ; Ganga Rai v. Kirtarath Rai (( 1911) I. L.

R. 33 A. 393.); and Abdullah Khan v. Basharat Husain. (( 1912) L.R. 40 I. A. 31.)

Nov. 30. The judgment of their Lordships was delivered by

LORD SINHA. This is an appeal against a decree of the High Court of Madras, dated April 19, 1920, varying a decree of the Subordinate Judge of North Arcot, dated March 31, 1917, made in a suit filed in that Court on December 21, 1915.

That suit arose out of a transaction between the Raja of Kalahasti and the Raja of Tuni, which was embodied in ex. A, and ex. I. in the case.

Ex. A purports to be a deed of " mortgage with possession " of immovable properties described in schedules A, B, C and D (hereafter called the A, B, C and D properties) for a sum of 11 lakhs of rupees, with interest at 10 annas per cent, per month, to be recovered from the rents and profits. The mortgagor was to have liberty to pay off the mortgage money at the end of four years, with option to defer payment for a further period of two years. If the money was not paid on March 13, 1915, the entire amount then due was to carry interest at 1 per cent, per mensem—10 annas from the rents and profits and the remaining 6 annas to be payable by the mortgagor personally being also charged upon the properties.

82 Law. Rep. 54 Ind. App. 68 ( 1926- 1927) Panaganti Ramarayanimgar V. Maharaja of Venkatagiri

184

Ex. I purports to be a muchilka or counterpart lease, by which the mortgagor Raja takes a lease from the mortgagee of the A properties for a period of four years, from July 1, 1909, to June 30, 1913. The lessee was to pay a fixed yearly rent of Rs.18,750, in three equal instalments, which is equivalent to interest on 2 ½ lakhs at 10 annas per cent, per month. In default of payment of the rent reserved, the amount was to be recovered from the income of the ijara villages, and by means of the lessees other property " besides " the property whi