Modi, J. - (1.) THIS is a second appeal by the plaintiff Achalchand in a suit brought by him against the defendant Rekhraj for redemption of a mortgage.
(2.) PLAINTIFF appellant Achalchand and his father Gulabchand who died during the pendency of the suit mortgaged with possession their house situate in Raoton-ka-bas, Jodhpur, to the defendant respondent Rekhraj for a sum of Rs. 1000/- by a registered mortgaged-deed dated Svt. 1984 Maha Vadi 1. The rate of interest settled between the parties was 12% per annum. It also appears that it was stipulated between the parties that the plaintiffs would take a lease of the mortgaged property themselves, and that they would pay a rent of Rs. 10/- per mensem. The plaintiffs accordingly executed a rent-note in favour of the defendant respondent on the same date, that is, Maha Vadi 1, Svt. 1984. On 18. 2. 44 corresponding to Svt. 2000, Falgun Vadi 2, the plaintiffs gave a notice to the defendant Rekhraj (Ex. P-5) wherein the former offered to pay the principal sum of Rs. 1000/- Rekhraj and called upon him to deliver the property to the plaintiffs immediately, failing which the plaintiffs said that all further interest on the mortgage money would cease and they would not be liable to pay anything in lieu of interest to the defendant. The latter did not give any reply to this notice. The plaintiffs, therefore, brought a suit on 21. 3. 44 in the court of Joint Kotwal No. 1, Jodhpur City, for redemption of the mortgaged property on payment of a sum of Rs. 1000/- only. Defendant-respondent Rekhraj admitted the mortgage and the lease but resisted the suit mainly on two grounds : first, that the plaintiffs had further executed two bonds of Rs. 100/- each in favour of the defendant by which a charge had been created on the mortgaged property and, therefore, the plaintiffs were not entitled to redeem the property until they had paid off the bond monies also. In the second place, defendant contended that the plaintiffs had offered him a sum of Rs. 1000/- only as redemption money, but the total sum due on the mortgage was more than that amount and he stated that such amount worked out to Rs. 2114/10/-upto Svt. 2006, Sawan Vadi 5, corresponding to 30th July, 1949. Defendant Rekhraj further raised a plea as to jurisdiction and pleaded that the court of the Joint Kotwal No. 1, Jodhpur City, was empowered to entertain suits up to the valuation of Rs. 1000/- only, and so the plaintiffs' suit was beyond the pecuniary jurisdiction of that court. This plea succeeded and the suit was ordered to be returned for presentation to the proper court by an order dated 30. 9. 48. The suit was thereafter presented to the court of the Sub-Judge, Jodhpur, on 25. 2. 49, and was eventually transferred to the court of Civil Judge, Jodhpur, who disposed of it by his judgment and decree dated 12. 8. 50. The learned Civil Judge passed a decree under O. XXXIV R. 7 C. P. C. in favour of the plaintiff for redemption of the mortgaged property on payment of Rs. 1000/- only. The learned Civil Judge's finding was that the tender of the sum of Rs. 1000/- by the plaintiffs on 18. 2. 44 was sufficient and effectually stopped the running of interest in favour of the defendant with effect from that date. The defendant took an appeal from the above decree to the learned District Judge, Jodhpur, who held that the aforesaid tender of Rs. 1000/- by the plaintiffs was not of the whole amount due on the date of the tender and was, therefore, not sufficient to stop the running of the interest in favour of the defendant, and accordingly the learned District Judge modified the decree of the trial court and directed that the plaintiff must pay Rs. 2016/- comprising of Rs. 1000/- as principal and Rs. 1016/-as interest to the defendant by 30th September, 1951, failing which the defendant will have a right to apply for a decree for foreclosure. From the above decree the present appeal has been filed. The principal point for determination in this appeal is whether the tender of the sum of Rs. 1000/- by the plaintiffs to the defendant on 18. 2. 44 was a valid and a legal tender. Learned counsel for the plaintiff appellant has argued with great force that the tender was legal and valid and effectively stopped the running of interest from the date thereof, and he placed his reliance on a few more facts which must now be mentioned. It is said that the defendant Rekhraj had brought a suit against the plaintiffs on 12. 2. 41 corresponding to Falgun Vadi 1, Svt. 1997 for recovery of rent amounting to Rs. 147/4/- in respect of this very mortgage. The plaint in that suit is Ex. P-3 on the record. That suit was dismissed by Joint Kotwal No. 2, Jodhpur City, on 8. 8. 42 on the finding that the plaintiffs had paid full rent to the defendant up to Svt. 1997, Mah Sudi 2, and further that a sum of Rs. 35/12/- had also been realised by the defendant in advance which meant in other words that the present plaintiff-appellant had paid rent to the defendant Rekhraj upto Jeth Vadi 4, Svt. 1997, and that nothing more was due upto that date. Thereafter the defendant Rekhraj brought a further suit (Ex. P-4) on 16. 9. 42 corresponding to Bhadwa Sudi 6, Svt. 1999, for recovery of rent amounting to Rs. 165/- and for possession by ejectment in respect of the suit property. But meanwhile the plaintiffs had sold the house to one Mangilal on Maha Vadi 1, Svt. 1997, corresponding to 14. 1. 1941, whereupon Rekhraj also impleaded him as a defendant. That suit was eventually returned to the plaintiff for presentation to the proper court, and appears to have remained abortive because the defendant Rekhraj did not re-present the suit at all. Now the main contention of learned counsel for the appellant is that as the defendant Rekhraj had already brought a suit on 16. 9. 42 for arrears of rent and future rent, and that suit was pending on 18. 2. 44, the plaintiffs were perfectly justified in offering the principal sum of Rs. 1000/- only as redemption money to the defendant in their notice dated 18. 2. 44, and that such tender was valid and sufficient to stop the running of further interest. I have given my very careful consideration to the plea set up by the plaintiff and have come to the conclusion that it cannot be sustained. Learned counsel for the plaintiff appellant relies on sec. 60 of the Transfer of Property Act. He has also relied on Bhagwat Prasad vs. Ganga Din (1) (A. I. R. 1947 All. 68.) and Bhagavantulayya vs. Venkan-dhora (2) (A. I R. 1941 Mad. 484. ). Now sec. 60 of the Transfer of Property Act provides that the mortgagor has a right, any time after the principal money has become due, to require the mortgagee to deliver possession to the mortgagor the mortgage deed and all documents relating to the mortgage property on payment or tender of the mortgage money. The question, therefore, is what was the mortgage money due in this case on 18. 2. 44 when the plaintiffs tendered the sum of Rs. 1000/ -. It is obvious that if that was all the money that was due on that date, the tender made by the plaintiffs was good and sufficient and would stop the running of further interest against the mortgagor. But if, on the other hand, the tender was not of the entire sum due but of a portion of it, howsoever substantial it may be, it is well established that such an offer would not tantamount to a proper and valid tender. The short question for determination, therefore, is, what was the amount due to the mortgagee on 18. 2. 44? This, in my opinion, is a question of fact, and the finding of the lower appellate court is binding upon me in second appeal. The lower appellate court found on the materials available to it that the plaintiffs did not pay any amount in lieu of interest or rent after Jeth Vadi 4, Svt. 1997 corresponding to 25. 5. 40, and that a sum of Rs. 1331/10/9 was, therefore, due to the defendant Rekhraj from the plaintiffs in lieu of the principal and interest up to 18. 2. 44, the date of the notice in respect of the mortgage in suit. The conclusion is, therefore, irresistible that the tender made by the plaintiffs on 18. 2. 44 was not of the entire amount due on that date. It may be pointed out in this connection that the expression "mortgage money" in sec. 60 of the Transfer of Property Act includes both principal and interest, and cannot be construed to mean the principal sum only. The cases relied on by learned counsel for the appellant, 1941 Mad. 484 and 1947 All. 68, do not help him at all. In Bhagavantulayya vs. Venkandhora (1) (1941 Mad, 484.) the tender was short by a sum of Rs. 4/- only but that was considered to be not an inappreciable sum, although the case was decided on another ground and it was held that the mortgagee's refusal of the tender on the ground that he was entitled to wait until a further period, amounted to a waiver of the objection that the amount tendered was short. In Bhagwat Pershad vs. Ganga Din (2) (1947 All. 68.) the mortgagee denied the mortgagor's right to redeem the mortgage before the expiry of three years on the ground that the mortgage was not redeemable before that period, and so did not accept the tender made by the mortgagor who had deposited in court the principal sum only and had also offered to pay the cost pi repairs and interest. In these circumstances it was held that the mortgagor's offer was a proper and legal tender and that the mortgagee had waived the condition of actual production of the money because he had denied the mortgagor's right to redeem before the expiry of three years. It is obvious that the case cannot afford any help to the plaintiff appellant. Defendant Rekhraj never waived his plea that the tender made by the plaintiff in the present case was not of the whole mortgage money due, nor can he be deemed to have even done so. Learned counsel for the defendant respondent relied on Gauri Shankar vs. Abu Jafar Khan (3) (A. I. R. 1916 Oudh 279.), Subbai Goundan vs. Palani Goundan (4) (A. I. R. 1917 Mad. 922.) and Sewak Ram vs. Municipal Board, Meerut (5) (A. I. R. 1937 All. 328. ). These cases clearly establish the principle that where the amount deposited in court, or tendered falls short of the full money due, it is not a sufficient tender and the mortgagee is at liberty to ignore it, and is entitled to recover interest at the contract rate up till the date of the redemption suit, because the mortgagee is not bound to accept anything less than the full amount that is owing to him, and there is no via media in the matter. It is further well-settled that the mortgagor in such case is bound to pay interest to the mortgagee even on the amount tendered by him but refused by the plaintiff. It is next contended by learned counsel for the plaintiff appellant, however, that in this case the defendant had filed two suits for rent; one of which had been dismissed, and the other had been pending at the time the tender was made on 18. 2. 44 and, therefore, it was not necessary for the mortgagors to have tendered any amount of interest due on the date of the tender viz, 18. 2. 44. This contention has no force. Under sec. 60 read with sec. 83 of the Transfer of Property Act, the requirement clearly is that the mortgagor must deposit in court or tender the mortgage money due, which includes both principal and interest such as may be due at the time of the deposit or tender. The mere circumstance that the mortgagee had filed a suit in respect of a portion of the money due at such date will not exonerate the mortgagor from his responsibility to make a tender of the full amount due, and in such a case, I am of opinion that the mortgagee is entitled to ignore the tender of an insufficient amount made to him. I have been able to lay my hands on Hewanchal Singh vs. Jawahir Singh (6) (I. L. R. XVI Cal. 307 P. C.) in this connection. In that case, a mortgagor who was authorised by the terms of the mortgage to redeem at the end of its second year, brought a suit on the ground that he had deposited in court the principal money due in the first half of the second year and that as to interest for both years, decrees had been obtained against him by the mortgagee before the mortgagor filed his suit. The trial court held that as the mortgagee had already obtained a decree for interest, the plaintiff's tender for the principal amount was sufficient on the date of the suit. On appeal, the learned Judicial Commissioner reversed the decree holding that at the end of the second year interest had not been paid nor tendered nor placed at the mortgagee's disposal by depositing it in court, and therefore, dismissed the suit. In an appeal before their Lordships of the Privy Council, it was contended that as the decrees for interest had already been obtained by the mortgagee and the deposit of the principal had been made in court, there remained nothing more to pay under the mortgage. This plea was negatived by the Privy Council and the appeal was dismissed on the short finding that there was no deposit or tender at the proper time of the mortgage money which included the interest due. This authority fully applies to the present case and furnishes a complete answer to the plaintiff's contention. Learned counsel for the plaintiff further relied in this connection on the defendant's refusal to allow redemption unless the plaintiff repaid the money due on the two money bonds executed by the plaintiff-appel-lant in favour of the defendant. It does appear from a copy of the statement dated 22. 3. 45 (Ex. P-6) made by the defendant in the court of Joint Kotwal No. 1, Jodhpur City, that the defendant did so. Now there is no doubt that the defendant Rekhraj was not justified in insisting on the bonds monies to be paid to him before giving up possession of the mortgaged property for the simple reason that these documents were un- registered and, therefore, did not operate to affect the immovable property sought to be charged. Learned counsel for the defendant stated in this Court that the defendant gave up or at least did not press this part of his claim in the courts below. Be that as it may, there is no gainsaying the fact that the defendant had claimed and never waived directly or otherwise interest on the principal sum of Rs. 1000/- to be paid to him before giving up possession of the mortgage property, and further that the plaintiff was not willing at all to pay anything more than the principal sum of Rs. 1000/- due on the mortgage although a sum of Rs. 300/-and odd was due from the plaintiff to the defendant in lieu of interest thereon up to the date of the notice i. e. , 18. 2. 44. It is this refusal on the part of the plaintiff appellant which clinches the case against him. The case would have certainly assumed a very different aspect if the plaintiff had made a tender of the whole amount due from him at the date of the notice and still the defendant would have declined to accept the tender on the ground that the bonds monies must also be paid. But the primary fault lay with the plaintiff himself when he made an insufficient tender and, therefore, I am constrained to hold that the tender made by the plaintiff was ineffective in law and ineffectual to stop the running of interest against him.
(3.) IT was next contended by learned counsel for the appellant that the defendant was not entitled to get anything more than the principal amount viz. , Rs. 1000/- because he had failed to maintain proper and full accounts of the rents and profits recovered by him in respect of the mortgaged property. Learned counsel placed his reliance on sec. 76 of the Transfer of Property Act, and on Shadi Lal vs. Lal Bahadur (1) (A. I. R. 1933 P. C. 85.) and Kishangopal vs. , Lalchand (2) (1939 M. L. R. 153. ). Now sec. 76 (g) of the Transfer of Property Act lays down that when the mortgagee takes possession of the mortgaged property, he must keep clear, full and accurate accounts of all sums received and spent by him as mortgagee, and, at any time, during the continuance of the mortgage, give the mortgagor, at his request and cost, true copies of such accounts and of the vouchers by which they are supported. If the mortgagee fails to keep such accounts, a presumption arises against him but the presumption in my opinion is not absolute or without any limitation. IT is obvious in this case, that both as a matter of fact and in accordance with the terms of the mortgage deed, the plaintiffs themselves took the lease and were in possession of the mortgaged property throughout the material period. IT is beyond question that they had executed a rent-note in favour of the defendant simultaneously with the execution of the mortgage instrument itself, and had agreed to. pay to the defendant a sum of Rs. 10/- per mensem by way of rent, which was also the exact equivalent of the amount of interest on the sum borrowed i. e. , Rs. 1000/- at 1% per mensem. Besides, it has been found on the basis of Exs. P-3 and 4, documents which were brought on record by the plaintiff appellant himself (and he has led no evidence to the contrary) that the plaintiffs had paid the entire rent to the defendant up to Jeth -Vadi 4, Svt. 1997 corresponding to 25. 5. 40, but no rent whatsoever was paid by the plaintiffs to the defendant thereafter. The plaintiffs did not care to go into the witness box and prove that the case put forward by the defendant as to the rent in arrears was false. In these circumstances, I am of opinion that there is no scope for raising any presumption against the defendant mortgagee and it cannot be held that the defendant is dis-entitled to recover interest. The case relied upon by learned counsel for the appellant are distinguishable on facts. The ruling of the Chief Court of the former State of Jodhpur in 1939 M. L. R. 153 is based upon A. I. R. 1933 P. C. 85. But in both these cases the mortgagees were in, actual possession of the mortgaged properties and it was impossible to know the extent of the rents and profits realised by the mortgagee in the absence of proper accounts, and in such circumstances it was held that the claim for interest must be disallowed. As already pointed out above, the facts of the present case are entirely different. The mortgagors themselves have been in possession and the rent was definitely fixed and known and the amount in arrear was known. In a case of our own Court Prem Singh vs. Prithviraj (1) (I. L. R. XX Bom, 721.) (1951 R. L. W. 9.), it was held by a Division Bench that where a mortgagor remains in possession of the mortgaged property and does not pay anything either towards the rent or interest, no adverse inference can be drawn against the mortgagee for his failure to keep accounts and that the mortgagee was not disentitled to recover interest. The authority is directly applicable to the present case and is binding upon me and consequently I hold that the contention of learned counsel for the plaintiff appellant on this score has no merit and must fail. Learned counsel for the plaintiff appellant raised two more points which I propose to dispose of briefly. First, that the defendant was not entitled to claim interest more than the principal amount on the rule of Damdupat, and secondly, that the plaintiff appellant was entitled to relief under the Marwar Relief of Indebtedness Act, 1941. It must be pointed out, however, that the appellant did not raise either of these points in the courts below, nor has he taken any of these grounds in the memorandum of appeal filed in this Court. Learned counsel for the plaintiff appellant urged, however, that these were points of law and should be permitted. As regards the first point, the law is well established that where the mortgagee is under a liability to account to mortgagor for the rents and profits received by him for the mortgaged property, the rule of Damdupat does not apply. See Gopal Ramchandra vs. Gangaram Anand Shet (10 ). That the present case is one to which the above principle applies does not admit of any serious doubt. This contention is, there-fore, of no avail. As regards the other point, the plaintiff never contended during the trial that the interest was excessive or that the bargain entered into between the parties was unfair or unconscionable or that the defendant Rekhraj had taken any unfair advantage in the matter. Sec. 5 (2) (G) of the Marwar Relief of Indebtedness Act lays down that the court shall deem interest: to be excessive if on secured loans it exceeds 12% per annum, simple interest. The stipulated rate of interest in this case does not exceed 12% per annum. I am not unmindful, however, that this rule is not an inflexible one and it is open to a court to hold even a rate of interest lower than 12% per annum to be excessive, provided it appears to be unreasonable having regard to the circumstances of the transaction, the financial position of the debtor, and the risk which the creditor undertook or thought he was undertaking at the time the transaction was entered into. But these are all questions of fact, and there is not a shred of evidence on the record to show that the rate charged by the defendant was excessive, and that: he had taken any undue advantage of the position of the plaintiff appellant in this or any other respect. The least that the plaintiff appellant should have done was to examine himself on all these points if he really wished to rely on them. Neither of the plaintiffs, however, examined himself as a witness on these or any other points arising in the case and in fact they wholly abstained from going into the witness box. The non-appearance of the plaintiffs in support of this or any other points in the case is a very strong factor which goes to discredit their entire case. In the result this appeal must fail and hereby dismissed with costs. . ;