Gupta J. - (1.) THIS second appeal on behalf of the defendant is directed against the Judgment and decree passed in appeal by the additional District Judge, Jodhpur, on the 14th of April 1949. The respondent had filed a suit against the appellant on foot of a mortgage deed dated Jeth Vad II, S. 1992, corresponding to the 17th May, 1936, under which the appellant had mortgaged his house in favour of one Mehtab Chand defendant respondent No. 2 for Rs. 1200/ -. It Mas stipulated by the mortgagor that the would pay the mortgagee interest at the rate of 12 as. per cent per month on the amount secured by the said mortgage deed Ex. P/1. It was further stipulated that in the event: of non-payment of interest for any year, interest on the amount of interest at the same rate would be payable and that on demand the mortgagor would pay the entire mortgage money with interest thereon and that in default the mortgagee would be entitled to file a suit and recover the amount from the sale of the house mortgaged. The mortgagee is said to have transferred his rights to Prithvi Raj on the 30th of October 1946, under registered deed of transfer.
(2.) THE suit was filed by Prithvi Raj, the assignee of Mehtab Chand, on the 14th of December, 1946. It was alleged in the plaint that the mortgagor, defendant No. 1, did not pay anything towards either the rent or the interest or the principal amount secured. That the mortgagee, defendant No. 2, served the mortgagor, defendant No. 1, with a notice on the 16th of April, 1941, but the latter did not pay any heed to it, that on the 25th of November, 1946, the plaintiff Prithvi Raj again sent a notice to mortgagor, defendant No. 1, saying that the mortgagee, defendant No. 2 had transferred his rights to him and that the amount due under the mortgage deed be paid within a week and the mortgaged house be redeemed. It was further alleged that the mortgagor, defendant No. 1, did not pay heed and hence this suit. The plaintiff claimed Rs. 1855/- by way of interest and prayed for a decree for Rs. 3055/- and further interest up to the date of realisation to be recoverable from the sale of the mortgaged house. The trial court decreed the plaintiff's claim for Rs. 3326/- and ordered redemption on payment of that amount. The learned District Judge reduced the amount to Rs. 3000/-but otherwise affirmed the decree of the lower Court. One of the defences to the plaintiff's claim was that the rule of Damdupat was applicable to the mortgage in question and that the plaintiff was not entitled to recover any interest in excess of the amount equal to the principal and it is with this defence only that we are concerned in this second appeal. It has been admitted by the counsel for the appellant that, inasmuch as, the mortgagee was bound to keep accounts as per terms of the mortgage, the rule of Damdupat did not apply to the mortgage in question and that the plaintiff was entitled to recover interest more than the amount equal to amount of the principal debt. He however contented that under s. 76 of the Transfer of Property Act, the mortgagee was bound to keep accounts and because the mortgagee had kept no accounts, he was not entitled to any amount by way of interest. As regards this contention of the learned counsel, under the law of evidence only a presumption could be drawn against the mortgagee on account of his failure to comply with the statutory duty imposed upon him under s. 76 of Transfer Property Act. But in the particular circumstances of this case, no such presumption could be drawn because it has been proved by evidence that the mortgagor has been in possession of the house from the date of the mortgage up to the date of the suit, the mortgagor having failed to prove this contention that he was in possession of the house only for a year prior to the date of the suit. In the circumstances of this case when the defendant mortgagor has been proved to have been in possession of the house and paid no rent or interest except to the extent of Rs. 326/- no presumption could be drawn against the mortgagee for his failure to keep accounts. This is borne out by a number of Judgments cited by the learned counsel for the respondent. In 1943 Madras 62, it has been held by Division Bench that where by a possessory mortgage deed, the mortgagee is entitled to take possession of the mortgaged property and collect the rent and profits to be applied towards the satisfaction of the mortgage debt, liability of the mortgagee to account on footing of a wilful default arises only in a case where the mortgagee takes actual possession and control over the property and thereby intercepts the rents and profits from going into the pocket of the mortgagor and not if the mortgagor is himself allowed to remain in possession as a tenant under a lease or an atonement clause in favour of the mortgagee. In the case reported in A. I. R. 1940 Lahore 333, which was a case on all fours with the present one, a Division Bench has observed as follows: - "it will be seen that the principal obligation of the mortgagor was to pay interest and the provision to pay rent was merely supplementary to, and not in substitution for the obligation. The general rule kid down in Cl. (b) of S. 76 T. P. Act therefore, is not applicable to the facts of this case. Further, the default was primarily of the defendant himself. It was he who was to pay rent at the stipulated rate at specified intervals. Admittedly, he failed to do so. He cannot, therefore, be allowed to take advantage of his own default and urge that the mortgagee, who did not sue him, has lost his primary right to recover interest. . . . . . . . . . . . . . . . . . . . . . . . . . . The facts of the present case are entirely different. Here, the stipulation in the deed to pay interest is clear to and explicit, and it was clearly provided that the rent, to the extent actually paid, was to be credited towards interest, and the balance of the interest was recoverable as such. Further, the default in payment of rent was of the defendant himself and he cannot take advantage of his own default to defeat the right of the plaintiff. It must, therefore, be held that the plaintiff is not disentitled to claim interest,merely because the mortgaged properties had been let out to the mortgagor and he had executed rent deeds in his favour,but had not paid the amount of rent within three years from the date when it fell due. " 4. We, therefore do not accept this contention of the learned counsel for the appellant. In our opinion, no adverse inference can be drawn against the mortgagee and that the respondent is not disentitled to recover interest. Lastly, it was argued on behalf of the appellant that the plaintiff-respondent could not recover interest for a period more than 6 years. The argument was that the mortgaged property having been given out on lease to the defendant-appellant, it was only the rent of the property that the mortgagee could recover and as rent for more than 6 years could not be recovered a decree for interest on the mortgage money for more than 6 years could not be passed. Firstly, no such contention was raised in the courts below. Nor, a ground to this effect has been taken in the memorandum of appeal. Secondly, in the view of the matter that we take which is supported by the Lahore Judgment referred to above, the mortgagee respondent is entitled to interest for the entire period. This appeal has, therefore, no force and must be dismissed. It is accordingly dismissed with costs throughout and the judgment and decree of the lower court affirmed. .;