JAGAT NARAYAN, J. - (1.) - This is a plaintiff's revision application against a decree of Judge, Small Causes, Gangapur, in a suit for recovery of interest on the basis of a usufructuary mortgage-deed.
(2.) A sum of Rs. 4,500/- was borrowed by Chiranjilal respondent on the basis of the above deed. The mortgage-deed provided for payment of interest on the principal sum at 9% per annum simple. The profits from the property were to be utilised first towards the payment of interest and then towards the payment of the principal. The mortgage-deed was executed on 19. 2. 58 and on the same date Kajod applicant was put into possession of the mortgaged property. At that time the property which is a shop situated in Gangapur Bazar was in the possession of a tenant, firm Poonam Chand Gyanchand, on a rent of Rs. 37. 8. 0 per month who attorned to him. Poonamchand Gyanchand vacated the shop on 17. 7. 58. It remained vacant from 11. 7. 58 to 28. 8. 58. One Radha Kishan was admitted as a tenant on 29. 8. 58 and remained in possession of the shop as a tenant on Rs. 31/- per month upto 28. 12. 58. The shop remained vacant from 29. 12. 58 to 9. 5. 59 when the present suit was brought. The interest from 19. 2. 58 to 9. 5. 59 conies to Rs. 490. 8. 0. The rents realised from the above two tenants amount to Rs. 286. 8. 0. The suit was instituted for the recovery of Rs. 204/- on the allegation that from 11. 7. 58 and 29. 12. 58 to 9. 5. 59 the shop remained vacant and no tenant could be found in spite of the efforts of the plaintiff. This allegation was denied by the defendant in the written statement. The plaintiff however failed to produce any evidence to prove that he tried to find a tenant but was not successful in doing so during the above period. Sec. 76 of the Transfer of Property Act is applicable, which lays down that the mortgagee must manage the property as a person of ordinary prudence would manage it if it were his own and he must use his best endeavours to collect the rents and profits thereof. The learned Judge did not apply his mind to the provisions of sec. 76 at all. He was of the opinion that as the mortgagee was in possession of the property he was liable to credit rent for it at the rate of Rs. 37. 8. 0 per month in the account of the defendant whether or not the shop remained vacant. This view is not tenable in law. As has been mentioned above the plaintiff did not adduce any evidence to prove that the shop remained vacant during the above two periods inspite of his efforts to find a tenant. The defendant also did not try to prove that this was due to any negligence on the part of the plaintiff. The quest on which arises for determination in this case is whether it was necessary for the plaintiff to prove affirmatively that he managed the property as man of ordinary prudence would manage his own property or the defendant has to prove that the plaintiff was negligent in his management. In this connection I may refer to Chitale's commentary on the Transfer of Property Act in which the learned author has stated the law as follows on the basis of decided cases: - "the rule is that the mortgagee in possession is only liable for what he received unless it is proved that, but for his wilful default, he might have received more. The burden of proving wilful default is on the mortgagor. " The above statement of law is supported by the observations made in the cases cited in the foot-note under S. 76 clause (b ). In Mayer Vs. Murrary (1) the following rule stated in Fisher, On Mortgages, was approved: - "the account usually directed against the mortgagee in possession either of tangible property or of a business is of what he has, or without wilful default might have, received from the time of his taking possession. " In Chunilal Vs. Abdul Karim (2) it was observed: - "it has been pointed out in numerous decisions of our Courts that under that liability (S-76 Transfer of Property Act) if a mortgagee employs an agent for collection of rents, he must account for all the rents which were or could be realised by that agent. But the burden of proving that he made the most of the mortgaged property while in possession does not rest on the mortgagee as it is for the mortgagor to establish a case of wilful default. " In this connection a reference may be made to Ghose's, Law of Mortgage, 5th Edition, page 561. In Hughes Vs. Williams (3) it was pointed out that if the mortgagor knows that his estate is underlet, he ought to give notice to the mortgagee and "afford his advice and aid" for the purpose of making the estate as productive as possible. In other words the mortgagor cannot keep quiet and seek afterwards by way of "penal inquiry"to charge the mortgagee with the effect of his own negligence. I accordingly hold that it was for the mortgagor to prove that the shop remained vacant on account of the wilful default of the mortgagee. It appears however that owing to a paucity of decided cases on the subject the above provision of law is not well known and neither the parties nor the court had a clear idea on whom the burden of proof lay and what exactly had to be proved. It is therefore expedient in the interest of justice to remand the case for a fresh decision after framing the following issue: - "did the shop remain vacant during the periods 11. 7. 58 to 28. 8. 53 and 29. 12. 58 to 9. 5. 59 on account of wilful default on the part of the plaintiff?" The burden of proof shall lie on the defendant who shall lead evidence. The plaintiff will be given an opportunity of producing his evidence on the above issue in rebuttal. The case shall then be disposed of in the light of the observations made above. The revision application is accordingly allowed, the decree of the trial court is set aside and the case is remanded for decision in accordance with law as indicated above. The plaintiff will be entitled to recover the costs of this revision application from the defendant. The costs of the suit shall abide the final result. . ;