UPENDRA NATH BHARALI Vs. TARA NATH MOHANTA AND ORS.

JUDGEMENT

(1.) THIS appeal is on behalf of the Plaintiff arising out of a suit for recovery of money due on mortgage bond by sale of the mortgaged property.

(2.) THE necessary facts are that Defendant No. 1's mother Bhagyapriya Kalitani borrowed Rs. 4,000/ - from the Plaintiff on the 10th of April, 1948 and executed a registered mortgage bond. The mortgaged property is described in Schedule 'Ka' of the plaint. It was agreed that interest would be payable at six per cent per annum and that the principal along with the interest duo would be paid within live years. The Defendant No. 1 after the death of Bhagyapriya Kalitani became the sole owner of the property and he will hereinafter be described as the mortgagor. The Plaintiff brought the suit on the further allegation that he had come to know that Bhagyapriya sold away 4 Bighas 4 Kathas 4 Lechas out of the suit lands to Defendant No. 2 for Rs. 2,904/ - subject to the Plaintiff's mortgage under a registered sale deed dated the 28th May 1949. She along with Defendant No. 1 also mortgaged 2 Bighas 1 Katha of the suit lands subject to the Plaintiff's mortgage to Defendant No. 3, who is a brother of Defendant No. 2, for Rs. 2,000/ - on that very date.

(3.) THE main contention of the Plaintiff in appeal is that as on the admitted facts the Plaintiff -mortgagee came in possession of 4 Bighas and odd of land under a settlement by the Defendant, Section 76(h) of the Transfer of property Act is not attracted. The remedy of the Defendant was to file a separate suit if the rent had not been paid by the Plaintiff -mortgagee but no accounts could be taken in the present suit brought by the Plaintiff for sale of the mortgaged pronely. It is also argued by the learned Counsel for the Plaintiff -Appellant that even if it be accepted that the Court could go into account, the burden was on the Defendant -mortgagor to prove the profits derived by the Plaintiff -mortgagee and the mortgagor failed to prove that the yield of the land in possession of the Plaintiff was 14 maunds per (sic) per year. In our opinion, there is no substance in this contention. Sections 76(g) and (h) of the Transfer of Property Act, hereinafter called the Act reads as follows: