Decided on January 02,1900



Shephard, J - (1.) The facts are not clearly stated in either of the judgments. They seem to be as follows. The property, the subject of the mortgage, was in 1879 sold by the 5 and 6 defendants to the mortgagor (1 defendant). The mortgage was executed in 1883. In October 1884, the property was sold by the mortgagor to the 5 and 6 defendants. Notwithstanding this sale the property remained in the possession of the mortgagor and kadapas given by him to the plaintiff are produced for the years 1885, 1887, 1890 and 1891. After the commencement of the suit, the appellant purchased the property. It is not stated that the plaintiff had any notice of the sale to the 5 and 6 defendants. Nor is it explained why they, as purchasers, did not take possession from the mortgagor. Had they been in possession they could not have disputed the plaintiff's right to interest. Alike as between the mortgagor and the plaintiff and between them and the plaintiff there was or might have been the relation of mortgagor and mortgagee in addition to that of landlord and tenant. The right to rent was supplementary to, and not in substitution of the right to interest on the mortgage-money. As the mortgagor could not have claimed credit for rent or interest which he never paid, neither can the appellants do so--he is in no better position. The account to be taken at the instance of a purchaser of the equity of redemption is taken as it would be if the mortgagor only were interested. [Mainland v, Upjohn (1889) 41 Ch. D. 126 : 58 L.J. Ch. 361 : 60 L.T. 614 : 37 W.R. 411].
(2.) The case is totally different from that to which the observations of the Judicial Committee refer.
(3.) I would dismiss the appeal with costs. Subramania Aiyar, J.;

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