1981 Supreme(MP) 509

M. D. Bhatt, J.
Mangulal v. Hastimal
S. A. No. 312 or 1910, Decided on 11-9-1981.

Headnote:Transfer of Property Act, 1882 -- S. 76 (g) -- mortgagee in symbolical possession -d`recovery of rents from tenants -- not following provisions under -- not entitled to interest.

        This is a plaintiff mortgagees appeal against the lower appellate Courts that part of the Judgment and decree when by his claim for all interest had been disallowed.

        Held : In the present Case, as would be evident from the evidence, the plaintiff mortgagee who was a usufructuary mortgagee had entered into symbolical possession of the mortgaged property by attornment and also by the circumstance that he had been recovering the rent from various tenants partly directly and partly through the media I of the mortgagers themselves. Presuming for the sake of argument that the mortgage in question was not a usufructuary mortgage and was merely an anomalous mortgage, even then also there would be no change in the situation inasmuch as the mortgage having taken symbolical possession of the mortgaged property by his action of regular realisation of rent from the various tenants as proved from the oral evidence on record would be fully covered under the liabilities as enjoined by section 76 of the Transfer of Property Act.

        The evidence of the plaintiff-mortgagees own father PW 1 Sagarmal clearly shows that he had recovered rent from various tenants and also from the mortgagers for and on behalf of his own son Mangulal. He has admitted receipts (Exs. D-6 and D-7) executed by him. He admits to have received rent from certain tenants through the media of the defendants. Thus, from his own evidence, it is clear that the plaintiff mortgagee had been realising rent from the tenants and no accounts were maintained by the plaintiff mortgagee in this regard. This fact, as vaguely admitted on the plaintiffs side, stands fully reinforced and clearly established by the evidence on the defendants side, more particularly, of the respective tenants who had actually paid the rent. Some of these tenants are Keshrirnal (DW 2), Radheshyam, (DW 3 ) and Mangilal (DW 4). The evidence, of these three witnesses is highly consistent and mutually corroborative and three is absolutely no reason to disbelieve their oral testimonies on oath to any extent whatsoever. All these witnesses being the tenants themselves are found to be perfectly independent and reliable witnesses. They have deposed that after, execution of the mortgage deed in question, there was an attornment and that on directions to them by the mortgager, they had started paying due rent to the plaintiff mortgagees father Sagar mal. Thus it stands established that the plaintiff mortgagee had been recovering rent from the respective tenants partly directly and partly indirectly and that the plaintiff mortgagee had maintained no accounts whatsoever in them or of all sum received and spent by him as mortgagee nor had he furnished any copies of accounts to the respondent mortgagees. Thus in view of such wilful default on the part of the plaintiff mortgagee in the matter of his liabilities under section 76 of the Transfer of Property Act and more particularly, clause (8) thereof, both the Courts found to be obviously right in exercising their discretion in disallowing the agreed interest till the date of suit. Appeal dismissed.