MEHROTRA, C. J. : This appeal is on behalf of the plaintiff .arising out of a suit for recovery of money due on a mortgage bond by sale of the mortgaged property. (2) The necessary facts are that defendant No. 1's mother Bhagyapriya Kalitani borrowd 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 due would be paid within five 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. 2,9047- 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. Defendants 2 and 8 kept the consideration of" the sale and mortgage with them for the purpose of redeeming the plaintiffs mortgage but did rot pay anything to the plaintiff. The defendant No. 1 also did not pay anything towards the plain­tiff's mortgage. With these allegations the plain­tiff brought the suit for recovery of the principal amount of Rs. 4,000/- with interest amounting to Rs. 1.240/- from the date of the mortgage till the date of the suit by sale of the mortgaged land except 3 Kathas, which Bhagyapriya gifted away with the consent of the plaintiff for some charitable purposes. (3) The suit was defended on various grounds. Mainly the contention of the defendant was that the plaintiff as a mortgagee came in possession of 4 Bighas 4 Kathas 4 Lechas of land which had been sold by defendant No. 1's mother to defen­dant No. 2 and he was liable to account for the profits derived by him from the possession of the suit lands. Mainly the contention of the defendant was that the plaintiff as a mortgagee came in possession of 4 Bighas 4 Kathas 4 Lechas of land which had been sold by defendant No. 1's mother to defen­dant No. 2 and he was liable to account for the profits derived by him from the possession of the suit lands. In the defence it was further stated that the defendant had cultivated the land in the year 1949 but paddy was cut away by the plaintiff and the plaintiff was liable to pay the price of the crops cut away by him. The defendant in his written statement stated that after the mortgage, the land was let out to the plaintiff-mortgagee for a year on condition that he would pay 25 maunds of paddy per year as rent, but he failed to pay the paddy and thus in the year 1949 the defendant cultivated the land but the paddy was cut away by the plaintiff thereafter. There was some criminal litigation between the parties and after the purchase by defendant No. 2, they applied for mutation of their names and in that the plaintiff took up the position that he was in possession of the land as a mortgagee. Mainly the defendant claimed deduction from the amount of the mortgage money the amount of the profits derived by the plaintiff-mortgagee as he was in possession over a portion of the mortgaged property. This contention of the defendant was accepted and the court below after going into the evidence came to the conclusion that the yield of the land in possession of the plaintiff-mortgagee will be 14 maunds per year. Taking the price of the paddy at Rs. 10/- per maund, the plaintiff had been getting, according to the court below, a profit of Rs. 350/- per year out of the mortgaged lands in his possession. The plaintiff continued to be in possession till the year 1957. The court below allowed deduction from the mortgage amount of the sum of Rs. 3.500/-, the profits derived by the plaintiff-mortgagee within these nine years from the proceeds of the paddy crop. On that basis the suit was decreed for Rs. 2.660/- without costs and the defendants were allowed the usual six months' time to redeem the mortgage on payment of the aforesaid amount. 3.500/-, the profits derived by the plaintiff-mortgagee within these nine years from the proceeds of the paddy crop. On that basis the suit was decreed for Rs. 2.660/- without costs and the defendants were allowed the usual six months' time to redeem the mortgage on payment of the aforesaid amount. (4) 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 property. It is also argued by the learned counsel for the plain­tiff-appellant that even if it be accepted that the Court could go into accounts, 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 bigha 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 : "76. 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 : "76. When, during the continuance of the mortgage, the mortgagee takes possession of the mortgaged property,- * * * * * (g) 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; (h) his receipts from the mortgaged property, or, where such property is personally occupied by him, a fair occupation-rent in respect thereof, shall, after deducting the expenses properly incurred for the management of the property and the collec­tion of rents arid profits and the other expenses mentioned in clauses (c) and (d), and interest thereon, be debited against him in reduction of the amount (if any) from time to time due to him on account of interest........and, so far as such receipts exceed any interest due in reduction or discharge of the mortgage-money; the surplus, if any shall be paid to the mortgagor". If during the continuance of the mortgage, the mortgagee comes in possession of the mortgaged property, it is obligatory on him to keep accounts, of all the profits derived from it. This is a statutory obligation cast upon the mortgagee who comes in possession of the mortgaged property during the continuance of the mortgage. There is nothing in Section 76 of the Act which restricts the operation of the section to the usufructuary mortgage alone. The contention of Mr. Sarma is that it is not open to the mortgagor to claim accounts and deduction of the profit derived by the mortgagee during the continuance of his possession unless the, possession was obtained qua mortgage. It is true that the mortgagee (?) has to establish that his; possession is referable to the mortgage, but this does not mean that the possession should be taken • under the mortgage itself. If the Legislature intended that Sec. 76 of; the Act will be attracted only if the possession has been taken under the mortgage itself, then the words "during the continuance of the mortgage'' would not have been used in that section. If the Legislature intended that Sec. 76 of; the Act will be attracted only if the possession has been taken under the mortgage itself, then the words "during the continuance of the mortgage'' would not have been used in that section. More­over, if that interpretation is put on the provisions of Sec. 76 of the Act, then it will only apply to the cases of usufructuary mortgages where the mortgagee comes into possession under the terms of the mortgage and not to any other mortgage. In our opinion, the terms of Sec. 76 of the Act are wide enough to cover any kind of mortgage and it is not confined exclusively to 'the usufructuary mortgages. It is true that if the possession of the mortgagee is referable to some other document or" if it is clearly established by the evidence on the re­cord that the mortgagee is in possession under some different capacity, it may be possible for the mortgagee to argue that his possession cannot be said to be referable to the mortgage. It is on that basis that the argument has been advanced that according to the admitted case of both the parties, the mortgagee entered into pos­session as a tenant, and, in that view of the matter, his possession cannot be referable to the mortgage. In the present case, the plaint is entirely silent as regards the possession of plaintiff over any por­tion of the mortgaged property. He has not men­tioned at all the fact that he has been in possession of any portion of the mortgaged property even as a tenant. The 'defendant in his written statement has no doubt mentioned that the plaintiff was given 4 Bighas and odd of land on his agreeing to pay 25 maunds of paddy per year. The defen­dant, however, in his statement in Court has defini­tely stated that the settlement was made for a year only. In fact, there is evidence on the record to show that is the year 1949 some dispute arose between the mortgagee and the mortgagor with regard to possession over this property. Under these circumstances it cannot be said that the mortgagee continued in possession under the alleged settlement. In fact, there is evidence on the record to show that is the year 1949 some dispute arose between the mortgagee and the mortgagor with regard to possession over this property. Under these circumstances it cannot be said that the mortgagee continued in possession under the alleged settlement. In plaintiff's own state­ment in the cross-examination when he was con­fronted with his earlier statement made in the muta­tion proceedings started by the purchasers, he ''"d to admit that he had filed an objection in the muta­tion proceedings alleging that he was in possession as a mortgagee. He has further admitted in his cross-examination that in the mutation case he had deposed that the land was mortgaged to him and that he was in possession of the same amicably. In this view of the matter the plaintiff now cannot be allowed to come forward with the case that he has continued in possession as a tenant. In our opinion, the court below was perfectly right in coming to the conclusion that the plain­tiff failed to prove that he had been in possession of the land as a tenant of the mortgagors. In that view of the matter, the possession of the plaintiff-mortgagee can only be referable to the mortgage and in his capacity as a mortgagee he was per­mitted by the mortgagor on payment of certain paddy annually to remain in possession over a por­tion of the mortgaged property. It cannot, there­fore, be said that the possession of the mortgagee though permissive was referable to his capacity as a tenant. It may be that under the terms of the mortgage he was not put in possession but he was permitted to occupy the mortgaged land in no other capacity but because he happened to be the mort­gagee of the land and thus his possession is refer­able to the mortgage alone. There is thus an obligation under Sec. 76(g) and (h) of- the Act on the mortgagee to keep a clear account of pro­fits of the mortgaged land. It should also be pointed out at this stage that Order 34, Rule 4 of the Code of Civil Procedure provides that in a suit for sale on a mortgage reliefs 1 can be framed as provided under Order 34, Rule 2 I clauses (a), (b) and (c) (i) of the Code of Civil ' Procedure. It should also be pointed out at this stage that Order 34, Rule 4 of the Code of Civil Procedure provides that in a suit for sale on a mortgage reliefs 1 can be framed as provided under Order 34, Rule 2 I clauses (a), (b) and (c) (i) of the Code of Civil ' Procedure. Order 34, Rule 2 provides that in a suit for sale (the words 'for sale' is to be substituted for the words 'for foreclosure' by virtue , of Order 34, Rule 4) if the plaintiff succeeds, the Court shall pass a preliminary decree - (a) ordering that an account be taken of what was due to the plaintiff at the date of such decree for principal and interest of the mortgage, the cost of the suit and other charges, and (b) declaring the amount so due at that date. The Court, before it can decide the actual amount that is payable to the plaintiff-mortgagee, has to go into account and see whatever payments have been made by the defendant-mortgagor' during tine continuance of the mortgage. In that view of the matter also, if there is a liability of the mortgagee to account for the pro­fits, the Court can take into consideration the amount which can be held to have been paid by the mortgagor towards liquidation of his mortgage debt. It should also be pointed out that S. 76(g)(h) creates an obligation on the mortgagee to keep an account, and, in the absence of any definite proof by the mortgagee that his possession will be refer­able to any other deed or contract, it must be presumed that he came in possession of the property as the mortgagee. (5) Reliance was placed on the-case of Gulab Chand v. Ram Kumar, AIR 1941 Pat 296. Refe­rence was made to the following passage at p. 298 of the report: "......before Section 76(h) can be applied it must be shown that the possession of the mort­gagee is by way of security for the debt, or in some way referable to the mortgage. " In that case reliance was placed on Ext. A a docu­ment of lease and it was contended that the posses­sion of the mortgagee was referable not to the mortgage but to the zarpeshgi lease evidenced by Ext. A on the record. " In that case reliance was placed on Ext. A a docu­ment of lease and it was contended that the posses­sion of the mortgagee was referable not to the mortgage but to the zarpeshgi lease evidenced by Ext. A on the record. It was held that that was a written document and the possession of the mortgagee was under that document. Hence, it could not be referred to the mortgage. The facts of that case are distinguishable from the facts of the present case. Moreover, it should be pointed out that their Lordships of the Patna High Court also said that in order to attract Sec. 76 of the Transfer of Property Act, it is not necessary that possession should be under die mortgage. Sec­tion 76 will also apply if it is some way refer­able to the mortgage. The broader interpretation, therefore, has been placed on the provisions of Sec. 76 and the narrower interpretation contended for that the provisions apply only to the cases of usufructuary mortgages was not accepted. Refe­rence at this stage may also be made to the case of Angnu Ram v. Bhikhi, AIR 1941 Oudh 84. It was held m that case that ''in a case where during the subsistence of a mortgage a mortgagee is proved or admitted by both parties to have come into possession of the property with the consent of the mortgagor, the possession of the mortgagee must be taken to be possession as a mortgagee and cannot be said to be adverse possession." Of course, these observations were made when dealing with the question of adverse possession; but, it was held that if with the consent of the mortgagor the mortgagee is allowed to remain in possession of the property, his possession can only bs referable to the mortgage and not to any other capacity. It was also held in that case that it is obligatory on the mortgagee to keep accounts of the profits during the continuance of the mort­gage. In the case of, Arunachalam Mudaliar, v. M. V. Jagannatha Mudaliar, AIR 1948 Mad 132, the question which came up for consideration was whether a subsequent mortgagee can claim an account from the earlier mortgagee if he is in pos­session by purchase. In that case the subsequent mortgagee had brought a suit for enforcement of his mortgage. In the case of, Arunachalam Mudaliar, v. M. V. Jagannatha Mudaliar, AIR 1948 Mad 132, the question which came up for consideration was whether a subsequent mortgagee can claim an account from the earlier mortgagee if he is in pos­session by purchase. In that case the subsequent mortgagee had brought a suit for enforcement of his mortgage. The subsequent purchaser was impleaded as a party and the argument which was advanced was that the possession of the sub­sequent purchaser of equity of redemption cannot be referable to his earlier mortgage, it must be under the subsequent sale and the purchaser was thus not accountable as a prior mortgagee to the subsequent mortgagee. That was repelled and it was held: "Where 'the prior mortgagee purchases the equity of redemption, whether under a private sale from the mortgager or in court auction under a decree on prior mortgage which is not binding on the subsequent mortgagee as he was not impleaded as a party, he is, in the suit on the subsequent mortgage, liable to account for the rents and pro­fits of the. property realised by him from the date of the sale and the same are liable to be credited in reduction of the prior mortgage. " Reliance is also placed by the learned counsel for the respondents on the case of Kishun Lal v. Hint Lal, AIR 1929 Pat 571. In that case the land was mortgaged usufructuarily- The mortgagee in that case was also in possession of two rooms, the rent of which was assessed at Rs. 7/- per month. The interest on the mortgaged amount was calculated to be Rs. 15/- per month. It was agreed that the rent of Rs. 7/- due from the mortgagee in posses­sion of the two rooms would be deducted towards the amount of interest. It, however, happened that the mortgagee let out those two rooms on a higher rent and the question arose whether the mortgagor could claim reduction in respect of the additional amount which the mortgagee realised from the tenants. It was contended on behalf of the mortgagee that no reduction was permissible as Sec. 76(h) was not attracted in view of Sec. 77 of the Transfer of Property Act. It was contended on behalf of the mortgagee that no reduction was permissible as Sec. 76(h) was not attracted in view of Sec. 77 of the Transfer of Property Act. This contention was repelled and it was held that Sec. 77 was no bar to the application of sec­tion 76(h) to the circumstances of that case and the reduction was allowed. In that case, the only point for) consideration was whether under 'the terms of the mortgage deed Sec. 77 was attracted and thus Sec. 76(h) was excluded. There was no question of the application of Sec. 76 (h) and whe­ther the possession was referable to the mortgage or not, which we are called upon to decide in the present case. (6) In our opinion, therefore, the mortgagor was entitled to the deduction of the amount of profit derived from the land by the mortgagee during the continuance of the mortgage. (7) As to the amount of yield of this plot of land, a number of witnesses have been produced on behalf of the defendants to show that the land in dispute yields a double crop and it has been found by the court below, on consideration of the entire evidence, that the average yield of the land will be 14 maunds per bigha. It was contended that the burden is on the mortgagor to show the profits derived by the mortgagee from the disputed land. We do not think that that is a correct pro­position. Under Sec. 76(h), the burden Is on the mortgagee to keep an account and if the burden is on the mortgagee, it necessarily follows that he is to account for the actual yield or the profits derived by him. No evidence has been led by the mortgagee to show what was the actual profit derived by him from the land in his possession. In the absence of any such definite evidence on the part of the mortgagee, it cannot be said that the court below was wrong in relying upon the evidence adduced by the defendants. It was con­tended that from the very nature of the land described in the plaint itself it can be inferred that the major portion of the land in dispute was high land and thus it could not have a double crop. It was con­tended that from the very nature of the land described in the plaint itself it can be inferred that the major portion of the land in dispute was high land and thus it could not have a double crop. In view of the positive evidence on the point that the land in dispute yields double crop, it is not for us to speculate on the mere description of the land given in the plaint itself. (8) In the result, therefore, there is no force in this appeal and it is accordingly dismissed with costs. (9) S. K. DUTl'A, J. : I agree. Appeal dismissed.