1985 Supreme(MP) 212

K. M. Agarwal, J.
Ram Gopal v. Pannalal.
F. A. No. 82 of 1978 (G); Decided on 26-3-1985.

Headnote:(1) Transfer of Property Act, 1882 -- S. 58 -- rent note executed with mortgage deed -- is a part of the same transaction.

        (2) Transfer of Property Act, 1882 -- S. 76 -- mortgager executing rent note in favour of mortgagee -- transaction is one and the same -- mortgagee is entitled to usufruct in the from of rent.

        (3) Civil P. C., 1908 -- O. 34, R. 1 -- suit for sale of mortgaged property -- prior mortgagee is a necessary party.

        It is not disputed that the respondents are subsequent mortgagees. First mortgage was created on 25-6-1966 in favour of Smt. Uma Devi and Smt. Savitri Devi for a sum of Rs. 6,000.00. The second mortgage was created on 10-11-1972 in favour of the respondents for a sum of Rs. 14,000.00 and the period of mortgage was 5 years. Out of the mortgage amount of Rs. 14,000/-, a sum of Rs. 8,000/- was paid to the appellant and the balance of Rs. 6,000/- was left with the respondents for the purpose of redeeming the first mortgage. On 26-2-1973, the amount of Rs. 6,000/- was deposited in Court under section 83 of the Transfer of Property Act by the respondents for being paid to the first mortgagees, who refused to accept the amount and, therefore, the amount was withdrawn by the respondents under orders to the Court. On 10-11-1972 itself, the appellant had executed a rent note, Ex. P. 2 in favour of the respondents with the recitals that formal possession of the mortgaged property was deLi"Vered to the mortgagees and the mortgagees and the mortgagor had taken it on rent of Rs. 210/- p.m. for a fixed period of five years. According to the respondents, this rent was payable in lieu of and corresponding to the interest on the amount of Rs. 14,000/- at the rate of Rs. 1.50 per cent per month. After expiry of the period of mortgage, the respondents brought the suit for recovery of the mortgage money to the tune of Rs. 8,000/- with interest at the rate of Rs. 1. 50 per month.

        The appellant resisted the claim of the respondents. It was submitted that prior mortgagees were necessary parties to the suit and in their absence, it was liable to be dismissed. The claim for interest was denied firstly on the ground that it was a usufructuary mortgage with no stipulation for payment of interest and secondly on the ground that the respondents were money lenders. They did not comply with the provisions of section 3 of the M.P. Money Lenders Act and, therefore, not entitled to interest or costs of the suit.

        The Court below decreed the respondents claim for Rs. 8,000/- with interest at the rate of Rs. 1/- percent per month. Being aggrieved, the appellant has filed the present appeal.

        Held : In view of the Explanation given under Order 34, Rule 1, C.P.C., the learned counsel for the appellant did not press the point that the prior mortgagees were necessary parties to the suit. His only attack was against the decree for interest. It was first submitted that as it was usufructuary mortgage, the respondents were not entitled to claim interest but could only claim the usufruct, i.e., the rent as per recitals of the rent note, Ex. P-2. It was also submitted that transactions were separate, evidence by two separate documents, Ex. P. 1 and Ex. P. 2, the respondents could not claim the rent in the present suit, which is mainly based on the mortgage. It was next contended that the findings returned by the Court below on additional issues were perverse. It was proved that the respondents were not entitled to any interest for non-compliance of section 3 of the M. P. Money Lenders Act.

        I do not agree with the said contentions of the learned counsel for the appellant. It was not a usufructuary mortgage and even if it was so, he was liable to pay the usufruct of the property, which was in the from of rent and admittedly not paid by him. As the two documents, Ex. P. 1 and Ex. P. 2 formed part of one transaction, as evidenced by Clause 2 of the mortgage deed, Ex. P. 1, a single suit on their basis was clearly maintainable.

        Learned counsel for the appellant also referred to an unreported case of Mangulal v. Hastimal (1982 M. P. W. N., Note 349) and submitted that the respondents were not entitled to interest in lieu of rent. The facts of this case are distinguishable from the facts of the present case. In Mangulals case (supra), possession wall deLi"Vered to the mortgagee and he was also recovering rent from various tenants partly directly and partly through the media of mortgagor. In the present case, the mortgagor himself was the tenant, who never paid any rent to the respondents. Further, he could not have deLi"Vered even symbolical possession of the respondents, because such a possession was deLi"Vered to the prior morgagees, who had refused to releave the mortgaged property even on tender of the mortgage money of Rs. 6,000/- tendered by the respondents by moving the Court under section 83 of the Transfer of Property Act. 1982 MPWN 349 distinguished. Appeal dismissed.