BHABANI CHARAN SARKAR Vs. KADAMBINI DASI

JUDGEMENT

(1.) The facts found by the lower appellate Court are these:

(2.) On 1 Jaistha 1325 defendant 1 borrowed Rs. 300 from the plaintiff and executed an usufructuary mortgage bond of some 28 bighas of land, stipulating that the plaintiff should possess the land in lieu of interest and should return it on repayment of the principal. The bond also contained an agreement that if the mortgagee failed to get possession, he should be entitled to realize his dues, after deducting receipts by a suit for sale of the property, and that interest should be calculated at Rs. 112-8-0 per annum. In pursuance of the agreement the plaintiff was put in possession of 13 bighas of land, but not of the whole mortgaged property. On 15 Kartik 1326 defendant 1 sold the whole property to defendant 2. The purchaser took possession of 13 bighas of land after plaintiff had been in possession for two years. He tendered the principal money Rs. 300 to the plaintiff, but plaintiff refused it because he claimed interest in lieu of the usufruct of 15 bighas of land. So the Rs. 300 was deposited in Court. There were some negotiations with a view to compromise, but eventually the plaintiff filed this suit claiming Rs. 800 in all after deducting Rs. 100 for two years possession of 13 bighas. And the lower Courts have decreed that sum and have ordered it to be realized by sale of the property.

(3.) The grounds urged in the appeal by defendant 2 are: first that the deposit of the principal money was a valid deposit under Sec. 62, and interest ceased to run from the date of deposit, as Section 84, T.P. Act, shows ; second, that as the plaintiff was in possession of some of the land he is bound to account for his receipts from it under Section 76, T.P. Act ; third, that an usufructuary mortgagee cannot get a decree for sale. Section 67, T.P. Act, prevents it,