Dave, J. - (1.) THIS is a second appeal by the plaintiff against the judgment and decree of the learned District Judge, Merta, dated 29. 5. 1957.
(2.) IT arises out of a suit for redemption of immovable property situated at Ladnun. It is now common ground between the parties that one Nanu Ram who is now deceased had mortgaged his share in a house with defendant No. 1 Inder Chand for Rs. 325/- on 14. 12. 1916. The possession of the mortgaged property was given to the mortgagee on the condition that the mortgagee would credit a fixed amount of Rs. 12/-per year as rent towards the interest. The amount advanced by the mortgagee was to carry interest at 12/- per cent per annum. Plaintiff Mohan Lal purchased equity of redemption from Kheenvraj s/o Nanu Ram and on 18. 8. 1955 he filed the present suit for redemption of the said property. It was averred by the plaintiff that the mortgagee could receive interest only to the extent of Rs. 325/-since the rule of Damdupat was prevailing at the time when the money was borrowed. It was also alleged by him that a part of the mortgaged property was dilapidated on account of the negligence of the mortgagee and that he was liable to pay damages to the extent of Rs. 300/ -. Thus, according to the plaintiff, the total amount which could be recovered by the mortgagee came to Rs. 650/- while the plaintiff was entitled to deduct Rs. 464/- on account of the rent of the property and Rs 300/- for the said damages. In this manner, he was entitled to recover from the mortgagee Rs. 114/- (Rs. 764/- minus Rs. 650/- ). The defendant traversed the suit on several grounds which led the trial court to frame as many as 12 issues. After recording the evidence of both the parties, it was held by the trial court that the damage to the property was not caused on account of negligence on the part of the defendant. It was also held that the Rule of Damdupat was no longer applicable in Rajasthan. According to the trial court, the defendant was entitled to recover interest as per stipulation mentioned in the mortgage deed. The total amount of interest, according to that court, came to Rs. 1547/13/ -. Out of this amount, Rs. 476/4/- were deducted for the rent payable to the mortgagor and thus the net interest recoverable by the mortgagee was found to be Rs. 1071/9/- upto the date of the preliminary decree. After adding this amount to the principal amount of Rs. 325/-, a preliminary decree was passed to the effect that the plaintiff can redeem the property on payment of Rs. 1369/9/- within three months. Aggrieved by this decree dated 5. 3. 1957, the plaintiff filed an appeal but it was dismissed by the learned District Judge on 29. 5. 1957 and hence this second appeal. It is urged by learned counsel for the appellant that both the courts below have committed a serious error of law in holding that the rule of Damdupat was not applicable to the present case. It is pointed out that in Sheokaran Singh Vs. Daulat Ram (l), it was held by a full Bench of this court that the rule of Damdupat was prevalent in the former State of Marwar in accordance with the provisions of Hindu Law as between the Hindus. It was also held that the said rule of Damdupat was hit by Article 14 of the Constitution of India, but according to the learned counsel, this rule was in force upto 25th January, 1950, and by that date the mortgagee could not claim interest more than the principal amount advanced by him. It is urged that if any one of the parties had filed a suit prior to 26th January, 1950, the creditor could not recover more than Rs. 650/- on account of the rule of Damdupat. This rule ceased to remain in force from 26. 1. 1950 and so the mortgagee could cairn further interest from that date to the date of the preliminary decree. It is pointed out by the learned counsel that the interest stipulated between the parties came to Rs. 39/- per annum while the rent recoverable by the mortgagors came to Rs. 12 -per month and so the mortgagee was entitled to receive net interest at the rate of Rs. 27/- per year, from 26. 1. 1950 to 5. 3. 1957 which was the date of the preliminary decree. The total amount thus came to Rs. 191/14/ -. He rounded this figure at Rs. 192/- and after adding Rs. 650/- (Rs. 325/- for principal and Rs. 325/- for interest upto 25. 1. 1950) to it, it was argued that the appellant was liable to pay only Rs. 842/- for redeeming the mortgaged property. It is prayed that the decrees of both the courts may be modified and the amount of Rs. 1396/9/- should be reduced to Rs. 842/ -. Learned counsel for the respondent has raised three contentions. It is urged in the first instance that the rule of Damdupat was not applicable in Marwar. There is no force in this argument because in Sheokaran Singh Vs. Daulat Ram (l), it has been held by a Full Bench of this Court, after referring to a string of earlier decisions, that the rule of Damdupat was in force in the former State of Marwar. It was next urged that this rule was not applicable because the mortgagee was required to keep an account of the rents or profits of the property which was given in his possession. In support of this argument, he has referred to Gopal Ram Chandra Vs. Ganga Ram Anand Shet (2 ). In that case, it was held that the operation of the rule of Damdupat was excluded in all mortgages, the terms of which necessitated the existence of an account, current between the mortgagor and the mortgagee, whatever the state of the account may be. It may be observed that the principle enunciated by their lordships in the said case is not applicable to the facts and circumstances of the present case since the very perusal of the mortgage-deed showed that the mortgagee was not saddled with any responsibility of keeping the account of the profits or rent of the mortgaged property. There was a clear stipulation between the mortgagor and the mortgagee that the mortgagee will realise interest at the rate of Rs. 12/- percent per annum (which came to Rs. 39/- per annum) while the mortgagor would be entitled to a credit of Rs. 12/-per annum as rent of the property. Thus, the mortgagee was to receive net interest at the rate of Rs. 27/-per annum. In view of this clear term of the mortgage, there was absolutely no necessity for the mortgagee to keep any kind of account. D. F. Mulla, in his Principles of Hindu Law (12th Edition) in paragraph 602 on the basis of decided cases made out the following summary about the transactions to which the rule of Damdupat applied:: - "602. To what transactions the rule applies - (1) The rule of Damdupat applies not only to unsecured loans, but to loans secured by a pledge of movable property and those secured by a mortgage of immovable property. (2) In the case of mortgage with possession a distinction has to be made between two classes of cases, namely, (a) where the amount of the annual rents and profits is fixed before hand by the parties and it is agreed between the parties that the mortgagee is to receive the amount in lieu of interest or a part thereof, irrespective of the actual amount of rents that may be recovered by the mortgagee; (b) where no such amount is fixed, and there is no such agreement between the parties, so that the mortgagee is under a liability to account to the mortgagor for the rents and profits received by him from the mortgaged property. In the first case no account is to be taken of the rents and profits, and all that has to be done is to ascertain what amount is due to the mortgagee for principal and interest as in the case of a simple loan. To such a case the rule of damdupat applies as it does in the case of an ordinary loan. In the second case the mortgagee is under a liability to account for the rents and the profits received by him from the mortgage property, and the rule of Damdupat does not apply. As the mortgagee is to be charged with rents and profits it would not be just to stop his interest and consequently the rule of (damdupat) cannot be applied. " It is clear from the said summary that the present case comes under 2 (a) and Explanation No. l. The case relied upon by the learned counsel for the respondent comes within part 2 (b ). There is, therefore, no force in the contention raised by him. Another contention raised by the learned counsel for the respondent is that the Transfer of Property Act having come into force, the rule of Damdupat was not applicable. In support of his argument, he has referred to Madhwa Sidhanta Onahini Nidhi Vs. Venkataramanjulu Naidu (3 ). I have given due consideration to this argument and in my opinion, it is not tenable because the Transfer of Property Act was not in force in Marwar when the mortgage was executed. It is admitted by the learned counsel for the respondent that the Transfer of Property Act came into force in Marwar in March, 1949. Moreover, the view taken by the learned Judges in Madhwa Sidhanta Onahini Nidhi Vs. Venkatarammanjulu Naidu (3) has not been followed by other courts. The High Courts of Bombay, Calcutta and Nagpur had taken a different view in Jeewan Bai Vs. Mohandas (4), Kunjalal Vs. Narasamba Debi (5) and Bapurao Vs. Anant Kashinath (6 ). I would have proceeded to examine as to which of the two views should be preferable but that necessity does not arise in view of the fact that the Transfer of Property Act was not in force in Marwar till the year 1949. The amount of interest equal to the principal had already accumulated more than 20 years before that date. The last contention raised by the learned counsel for the respondent is that the rule of Damdupat was to the effect that the amount of interest recoverable at any one time could not exceed the principal and since no suit was filed by the time the said rule was alive, it cannot be invoked now by the appellant. The main question which thus arises for determination is whether the appellant could claim the benefit of the said rule for the period prior to the date on which the Constitution of India came into force. In Sheokaran Singh Vs. Daulat Ram (l), all that was held by this court was that the rule of Damdupat was in force in the former State of Marwar and that it ceased to remain in force from 26. 1. 1950 when the Constitution of India came into force since it was hit by Art. 14 and 15 thereof. The question whether it could be applicable for the period prior to 26. 1. 1950 did not arise for consideration before the Court. In Laxmi Narain Vs. Madan Lal (7), a suit for redemption was filed on 30. 9. 1947 before the Constitution come into force. It was however, decided on 7. 2. 1955. The trial court applied the rule of Damdupat and held that the amount of interest could not exceed the principal sum due from the plaintiffs-mortgagors. Learned counsel for the mortgagees referred to Sheokaran Singh Vs. Daulat Ram (l) and urged that since the rule of Damdupat was struck down it could no longer be invoked by the plaintiffs. This objection was repelled and it was observed as follows: "at the time when the suit was instituted, the plaintiff-mortgagors were certainly entitled to redeem the mortgage of the house on payment of the principal amount and the interest calculated as per rule of Damdupat which then obtained in Marwar. By merely refusing to accept the money and compelling the plaintiff-mortgagors to institute the suit, the mortgagees cannot depriye the plaintiff-mortgagors of the right which had accrued and which he sought to enforce by a position which came into existence only after the coming into force of the Constitution. The rule of Damdupat having already come into play so as to cut down any interest in excess of the principal at the time of the institution of the suit, the claim to interest could not be retrospectively revived because under the Constitution the rule in question was held to be void It clearly amounts to giving retrospective effect to a principle arising under the Constitution. In our opinion, the claim of the defendant-mortgagees for interest in disregard of the principle of Damdupat for the period before the commencement of the suit, cannot be allowed and has been rightly rejected. " It has been argued by learned counsel for the respondent that the said case is distinguishable from the present one inasmuch as the suit in the said case was instituted prior to the date on which the Constitution of India came into force and so the observations made therein are not wholly applicable to the present case. It is true that the said case was instituted in 1947 long before the Constitution of India came into force and to that extent it is distinguishable. But the principle laid down in the above case was that the Constitution could not have retrospective effect and so the rule of Damdupat continued to remain in force till 25. 1. 1950. Now if any one of the parties had filed a suit till 25. 1. 1950/ the mortgagees could not have claimed more than Rs. 325/- as interest on account of the prevalence of the rule of Damdupat. The mortgage deed was executed on 14. 12. 1916. The interest on the principal amount of Rs. 325/- became equal to the principal after a period of 12 years and 15 days. In other words, the mortgagee could not claim from January, 1929 onwards. Once it is accepted that the Constitution of India had no retrospective effect, it is difficult to hold in favour of the respondent that his right to recover interest from January, 1929 to 25. 1. 1950 revived because Constitution of India came into force. In my opinion, the respondent could not claim any interest for the period beginning from January, 1929 to 25. 1. 1950. This position was not properly appreciated by the courts below and to this extent, the appeal is fit to be allowed.
(3.) LEARNED counsel for the appellant has himself conceded that the respondent was entitled to receive interest from 26. 1. 1950 till the date of the preliminary decree. In fact, he has not filed any appeal for the amount of interest accruing within this period. The appeal is, therefore, allowed and the decrees of the courts below are modified by reducing the amount payable by the appellant from Rs. 1396/9/-to Rs. 842/ -. The period of three months for the payment of the said amount will be computed from today. The appellant will receive costs from respondent No. 1 in this court. The parties are left to bear their own costs in the two courts below. .;