JUDGMENT
1. This is a defendant's appeal arising out of a suit for redemption. On the 10th of January 1896, a mortgage-deed was executed by Ram Hit Gir in favour of Raja Ram and Sita Ram for a sum of Rs. 6,000 at Rs. 9 per cent, per annum interest, of properties in Paraxon and Chhachharia. One of the conditions in the mortgage-deed was that interest would be paid every year, and in case of default the mortgagees would be put in possession. A further covenant was to the following effect:
If the amount of interest be not paid in any year and the mortgagees enter into possession and occupation (of the property), the amount of interest for the period prior to obtaining possession shall carry interest at the aforesaid rate after yearly adjustment (of account).
2. It is an admitted fact that interest was not paid regularly for sometime, and also that the mortgagees did not obtain possession till 1898. On the 15th February, 1898, the mortgagees admittedly obtained possession of one village Parakon only, and on the same date, a second mortgage-deed was executed for a sum of Rs. 1,400 in which Rs. 800 out of Rs. 1,131 due as interest on the Rs. 6,000 was also included. In this document it was provided that after the amount' due under the second document is paid, the mortgagees shall have a right to redeem the property.
As long as I do not pay the amount due under the said document I shall have no power to redeem the mortgaged property in the said mausa.
3. From that moment the mortgagees have remained in possession of the village Parakon and have not brought any suit to recover the amount due either on the first document or the second document.
4. In a suit brought for redemption of the first mortgage, the mortgagees pleaded that they were entitled to compound interest on the balance of interest due up to the 15th February, 1898, and further that they were entitled to claim the entire amount due on the second document. The learned Subordinate Judge has held that the defendants-mortgagees are not entitled to compound interest on the balance of the interest due. With this view we fully agree.
5. The first mortgage-deed did not entitle the mortgagees to claim compound interest on the balance of interest. We are not satisfied that there was any express agreement by the mortgagor to pay compound interest on this interest, nor did the parties intend that it should be so.
6. The learned Subordinate Judge, however, has disallowed the entire amount due under the second document on the ground that this was a simple mortgage-deed which has now become barred by lapse of time. He has relied on certain old cases which go to support his view. Unfortunately his attention was. not drawn to the pronouncement of the Full Bench in the case of Har Pershad v. Ram Chander 63 Ind. Cas. 750 : 19 A.L.J. 807 : 3 U.P.L.R. (A.) 139 : 44 A. 139 : 44 A. 37 : A.I.R. 1912 All. 174. In this last mentioned case the second document had provided that when the mortgagor shall redeem the previously mortgaged land, he should pay the amount of interest at the stipulated rate due on the second deed. It was held by the Full Bench that the legal effect of such provision was to make the second mortgage a usufructuary mortgage so as to entitle the mortgagee to claim the amount due on it at the time of the redemption. We find it difficult to distinguish the present case from the Full Bench case. It was clearly the intention of the parties that there would be no redemption of the village Parakon until the amount due on the mortgage-deed dated 15th February, 1898 had been paid, and until such payment the mortgagor had no right to redeem the property. We must, therefore, hold that the claim on the second document is not barred by time.
7. Under the terms of the mortgage-deed dated 15th February, 1898, the mortgagees are entitled to interest at the rate of Re. 1 per cent, per mensem from the dates of defaults of payments of instalments mentioned therein until payment, the interest being only simple.
8. We accordingly allow this appeal in part, and modifying the decree of the lower Court, increase the amount of the redemption money by the amount due on the second mortgage dated the 15th February, 1898, namely, Rs, 1,400 with interest as specified above. We fix three months for payment, after which interest will run at the Court rate, viz., 6 per cent per annum. As regards costs, as the defendants have succeeded substantially, we direct that the plaintiffs shall bear their own costs throughout, and shall pay half of the costs of the defendants in both Courts, including fees in this Court on the higher scale.