Macleod, C.J:— The plaintiff sued to recover on a mortgage bond dated the 6th of August 1910, Rupees 99-15-0 principal and interest at 12 per cent from the date of the mortgage to the date of suit. The mortgage is as follows:—
“I took from you to-day Rs. ??? to pay Mulchand Jethabhai. This is without interest. In consideration of this the property of my ownership situated at Wafagaon is mortgaged. The property thus described is mortgaged to you and delivered into your possession, According to the terms I shall pay the amount without interest within one year and shall take back the mortgaged property—my lands—into my possession. The profits of the said land should be enjoyed in lieu of interest. It the amount is not repaid within the stipulated time, the prefix should be enjoyed in lieu of interest according to the aforesaid agreement. If the money be demanded alter the expiry of the stipulated period and it I be Doable to ??? the same, the rupees without interest should be realised by the sale of the mortgaged property ??? If the amount realized is not sufficient, I shall be ??? personally liable for the balance.”
2. The plaintiff never got possession of the ??? property under the berms of the mortgage ??? The property was sold by the first defend ant on the 13th of April 1915 to the 2nd ??? defendant. The trial Court passed a decree ??? for the sum claimed with further ??? at 12 per cent per annum from date ??? suit to date of decree on the principal sum ??? with costs of suit against the 2nd defendant. It was also decreed that if ??? defendant No. 2 did not pay the amount decreed into Court within six months, the property should be sold. On the question of interest the learned Judge said:
“It is not shown, nor is it defendant No. 2 case, that the plaintiff, the mortgagee, had ??? been in the enjoyment of the mortgaged ??? though the mortgage deed is possessory in ??? As the mortgagor has been in actual ??? and the mortgage is merely possessory in ??? only, plaintiff is entitled to charge interest ??? the principal sum at a reasonable rate and the ??? of 12 per cent, pet annum claimed by him is fair ???
3. In appeal, this decree was altered ??? the amount of Rupees 99-15-0 ??? Rupees 188-15-0, by deleting the ??? to pay future interest at 12 per cent, ??? from date of suit to date of ??? by deleting the direction to pay ??? interest on the principal from date of ??? to date of payment and by directing ??? the costs in the lower Court should borne in proportion to the success a failure as between respondent and appellant.
4. The learned Judge said that the at appeared to be on all fours with Mahad v. Joti (1), and it was the fault of the ??? himself if he took no steps to ??? possession of the mortgaged property. ??? terms clearly show that the mortgage ??? property was a security only for ??? amount borrowed and not for ??? that the mortgagee was to have possession and enjoyment of the profits of the ??? property, in lieu of interest ??? was not made payable otherwise, and the amount advanced was recoverable a one year by sale of the property.
5. It appears to me that it is very ??? to distinguish this case from the case of Mahadaji v. Joti . The only ??? which can be seen in that case is this, ??? ??? mortgage did not contain a power of ??? in default of the payment of principal ??? it was held that the mortgage was a ??? usufructuary mortgage carrying the to have the property sold in default ??? payment of the principal sum of Rs. 500. On the question of interest Mr. Justice Candy said:
“(The) claim (the interest) is bad, For the plaintiff was entitled to possession in lieu of ??? and it he never took the trouble to obtain ???, he lost his right to interest. The land as security for the principal.”
6. ??? That is exactly what has happened in ??? case. Plaintiff has lost his claim to ??? as he never took the trouble to ??? possession. The mortgage bond is ??? on that point. There is a personal venant to pay back the mortgage ??? within one year. There is also power of sale if the mortgagor does not ??? back the rupees without interest. It has been contended that the Transfer Property Act, which was not in force ??? the decision of Mahadaji v. Joti ??? given, made an alteration in the law ??? giving a usufructuary mortgagee who ??? not take possession the right to ??? interest. I can see nothing in sections 58, 67 and 68 to which we have ??? referred which can enable a ??? to make a claim to interest—which ??? given to him by the mortgage ???. In my opinion, therefore, the ??? of the lower Court as against the defendant is perfectly correct.
7. ??? only difficulty I have in my mind ??? the plaintiff can claim, against ??? defendant, who has not appeared, ??? ages for breach of what may be called ??? to give possession. That would claim entirely of a different nature; it ??? been made out in the plaint and it ??? require entirely different consideration before it could be determined. No has been cited to us in which such a??? has ever been put forward. In the of a usufructuary mortgage, it is the ness of the mortgagee to get into ??? before he advances the money, ??? if he does not get into possession, be is entitled to take steps to get into ??? and for myself I should like that it would be a very bad ??? we bold that a usufructuary mortgagee ??? by and not take the trouble to possession, relying upon his being afterwards to make a claim before the Court for damages for not having been given possession. The appeal must be dismissed with costs.
Fawcett, J.:— I agree that the appeal fails. It was argued that the plaintiff-appellant was entitled to recover interest) by virtue of the provisions of section 68 of the Transfer of Property Act. But that section can scarcely be applied in the present case inasmuch as the suit is one for sale of the mortgaged property falling under section 67. As has been ruled in many cases, sections 67 and 68 provide entirely distinct remedies by a mortgagee, and though it might be possible to combine them in one suit, yet in the present case clearly no attempt has been made to do so. All that the plaintiff asks for in regard to a personal remedy was to recover any deficit in the sale proceeds from the defendant, But quite apart from that it also seems to me clear that interest could not in this particular case be considered to be a part of the mortgage money, within the meaning of that expression as defined in section 58.
8. It is there said that the principal money and interest of which payment is secured for the time being are called the mortgage money, that is to say, interest to be part of mortgage money must be actually secured for the time being under the mortgage in question, and in the present case it is beyond all possible doubt that the interest is not secured by the terms of the mortgage. The only possible basis on which the plaintiff could claim interest is that of damages for breach of the covenant to deliver possession, and in regard to such a claim I entirely concur with the learned Chief Justice.
9. Appeal dismissed.