Patna High Court
Jagdeo Mahton And Ors. vs Ram Bahadur Singh And Ors. on 8 January, 1959
Equivalent citations: AIR1959PAT457, AIR 1959 PATNA 457
JUDGMENT K. Sahai, J.
1. This appeal by defendants Nos. 1, 2, 3 and 5 arises out of a suit for redemption and for recovery of possession with mesne profits over .38 acre of land in plot No. 361 and 1.60. acres of land in plot No. 362 appertaining to khata No. 33 in village Rampur Azraqba Amaitra, tauzi No. 8150.
2. Admittedly, Sheo Prasad Singh was the recorded tenant. On 11-7-1914, he executed a registered deed of sale in favour of one Narkhu Singh. On 8-4-1924, Narkhu Singh executed a usufructuary mortgage deed in favour of Moti Mahto in respect of both the plots. A genealogical table of the family of Moti Mahto is given below.
A
|
___________________________
| | | |
Moti Dia Budhan Damar (died
| | | issueless).
Bandhu Etwar (d.8) |
| | |
Bhatu ___|___ |
(d. 4) | | |
Horil Bishun |
(d. 9) (d. 10) |
|
_____________|________
| | |
Jagdeo (d. 1) Pairu (d. 2) Ramu (d. 3)
| | |
Dukhit (d. 7 Hari (d. 5 Sarjug (d. 6
died) Minor) minor.)
3. The case of the plaintiffs is that, in purchasing the two plots in question and in giving them an usufructuary mortgage to the joint family of Moti Mahto in the name of Moti, Narkhu Singh was their farzidar. Their, case further is that Wazir, the brother and only heir of Narkhu, executed a ladavi deed in their favour on 20-3-1948. Thereafter, they deposited the mortgage money on 4-6-1949, under Section 83 of the Transfer of Property Act; but the defendants refused to withdraw it and to deliver possession of the mortgaged plots to them, On these allegations, they instituted the present suit on the 18th May, 1950.
4. Shortly stated, the defendants' case is that the different branches of their family are separate and have been separate for a long time, that Moti took the usufructuary mortgage, that Narkhu was not the farzidar of the plaintiffs, that Moti had taken the usufructuary mortgage of the two plots in his individual capacity as he was separate- from the other branches of the 'family, that the plots' in dispute came into the possession of defendant No. 4 on the death of Moti and his son, Bandhu. that plot No. 362 was sold on 20-7-1939, in execution of the decree passed in Rent Suit No. 2781 of 1936 and was then purchased by Pairu Mahto (defendant No. 2); who purchased it on behalf of his owa branch of the family which was separate from the other branches, that Pairu purchased plot No, 361 under an oral sale from Narkhu's heir. Wazir in 1347 Fasli', and that Pairu and other members of his branch of the family have thus become owners of the two plots in dispute which are not liable to ba redeemed.
5. The Courts below have concurrently held that Narkhu Singh was the. farzidar of the plaintiffs, that the defendants are all members of a joint family, that there has been no separation between the different branches, that the case of oral sale of plot No, 361 is not correct, and that Pairu (defendant No, 2) purchased Plot No. 362 on behalf of the entire family of the mortgagees with the result that that purchase could not deprive the plaintiffs of their equity of redemption. On these findings, they have decreed the suit.
6. Appearing on behalf of the appellants, Mr. Lalnarayan Sinha has made only two submissions. His first contention is that the lower appellate Court has not given a proper finding on the question of oral sale of plot No. 361 after due consideration of the evidence, and second contention is that there was no valid service of notice upon the minor mortgagees relating to the deposit of the mortgage money under Section 83 of the Transfer of Property Act, and hence the mortgagees are not liable for mesne profits from the alleged date of service notice. '
7. The first point can be disposed of very shortly. The evidence on the point of oral sale which Mr. Lalnarayan Sinha has referred to consists of the oral evidence of defendants' witnesses Nos. 8, 11 and 12 and the documents (exhibits F and G-1). D. W. 8 is defendant No. 1 himself and is, therefore, an interested witness, D. W. 11 has supported the defence case of oral sale by Wazir to defendant No. 2; but as pointed out by the learned Munsif, he has stated that Pairu wanted a document in support of the sale to be registered but Wazir refused.
There was no reason for Wazir to refuse to execute a sale-deed, and hence I agree with the learned Munsif that the evidence of D.W.. 11 is not] reliable. D. W. 12 says that there was no talk about execution of a deed of sale, and thus he contradicts the evidence of D.W. 11. The learned Munsif has, therefore rightly rejected his evidence also. Exhibit F is the plaint of Rent Suit No. 213 of 1943. The plaintiffs of that suit have not been examined, and hence there is nothing to show the circumstances in which they implcaded Pairu as a defendant. Exhibit G-l is a certified copy of the deposition of Durga Prasad Singh. Durga is said to be a nephew of plaintiff Ram Bahadur; but Durga's statement cannot bind him.
In these circumstances, neither of these two documents is of any avail. The learned Munsif, therefore, rightly held that the defendants had not been able to prove their case of oral purchase of plot, No. 361 by defendant No. 2. The appellate Court has accepted this finding, though it has not referred to the evidence. As I have pointed out, the learned Munsifs finding on the evidence is perfectly correct. Besides, Narkhu has been held to be the farzidar of the plaintiffs, and this finding cannot be, and has not been challenged before me. Wazir could not, therefore, convey any title to plot No. 361 by oral sale in favour of defendant No. 2. For these reasons, the first point raised by Mr. Lalnarayan Sinha fails.
8. The second point which Mr. Lalnarayan Sinha has urged does not appear to have been raised in either of the two Courts below but he has submitted that ha is entitled to raise this point as it is a pure question of law, and no investigation of facts is necessary. In this view of the matter, I have allowed him to raise it. His argument can be summarised thus. Section 83 of the Transfer of Property Act requires that the mortgagor or any of the other persons referred to in the section should deposit the entire money remaining due to the mortgagee on account of the mortgage.
The Court has then to cause a written notice of the deposit to be served on the mortgagee, whereupon the mortgagee may take such action as he is empowered under the section to take. Under Section 84, interest upon the principal mortgage money must cease to run as soon as the mortgagor or any of the persons mentioned "has done all that has to be done by him to enable the mortgagee to take such amount out of Court, and the notice required by Section 83 has been served on the mortgagee".
Section 103 provides, among other things, that, where a notice is to be served upon any person who is incompetent to contract, it may be served upon the legal curator of his property and, in the absence of such curator, a guardian ad litem appointed for him in the manner provided for under Order XXXII of the Code of Civil Procedure, provided that "it is requisite or desirable in the interests of such person that a notice should be served or a tender or deposit made under the provisions of" Chapter IV. Learned Counsel drew my attention to the application (exhibit 3) filed by the plaintiffs while depositing the money under Section 83 of the Transfer of Property Act and the order-sheet (exhibit 8).
These documents show that several of the mortgagees to whose account the money was deposited were minors, and that neither any application was made nor was any guardian ad litem appointed for them. The argument advanced is that there was no proper service of notice upon the minor mortgagees, in the absence of appointment of their guardian ad litem when their natural guardians had refused even to accept the notice. Since the mortgagors failed to do all that had to be done to enable the minor mortgagees to take the amount out of Court and since the notice was not at all served upon those minors, interest cannot be held under Section 84 to have ceased to run. As this is a case of usufructuary mortgage and the mortgagees enjoyed the usufruct in lieu of interest, their possession cannot be held to be wrongful from the alleged date of service of notice upon the major mortgagees only. '
9. Appearing on behalf of the plaintiffs respondents, Mr. Shreenath Singh has argued that appointment of guardian for the minor mortgagees would only have been necessary if such appointment had been held to be requisite or desirable in their interests as laid down in Section 103. He has further argued that, in any case, the plaintiffs are entitled to mesne profits from the defendants with effect from 19-6-1950, when summonses, along with copies of the plaint filed in the suit, appear from the order-sheet to have been served upon the defendants.
He has pointed out that the natural guardians impleaded as the guardians of the minor defendants accepted their appointment as guardians, and actually filed written statements on their own behalf as well as on behalf of the minors under their charge: He has further pointed out that, in paragraph 9 of the plaint, the plaintiffs have stated that they have deposited the mortgage money due to the mortgagees in the same Court under Section 83 of the Transfer of Property Act, and that the defendants had not withdrawn the money, though it was still there.
10. In my opinion, there is considerable substance in Mr. Lalnarayan Sinha's argument, and it must be accepted. So long as a guardian ad litem is not appointed for a minor who is incompetent to contract, there cannot be any valid service of the notice required under Section 83 of the Transfer of Property Act upon him. Service can only be valid if the notice is served upon his guardian ad litem. Mr. Shreenath Singh has laid stress upon the words "requisite or desirable" in Section 103; but it cannot be denied that service of notice upon a minor mortgagee of deposit of mortgage money under Section 83 is not only desirable but also requisite.
Unless notice is served, there is no compliance with the last requirement of Section 84, which is to the effect that the notice must be served upon the mortgagee, nor can it be held that the mortgagor has done everything necessary to enable the mortgagee to take the money out of Court. I am supported in this view by the decisions of several High Courts. In Bombay High Court, a case on similar facts came up in Pandurang v. Mahadaji ILR 27 Bom 23. Jenkins, C. J., who delivered the judgment of the Bench, observed :
"Until a guardian ad litem has been appointed, all has not been done to enable the minor mortgagee to take the money out of Court. Something more remains to bo done--the appointment of a guardian ad litem."
Again, he has stated :
"The balance of convenience appears to me to favour the view that the mortgagor had not done all that had to be done by him until he procured the appointment of a guardian ad litem, and where language is not precise, it is permissible to attribute that eifect to it which best accords with convenience and justice, for an argument drawn from inconvenience is forcible in law."
It may be mentioned that their Lordships particularly considered the significance of use of the words "requisite or desirable in the interests of such person" before coming to their conclusions.
11. In Madras High Court, a similar view was taken by Odgers, J. in Appa Pai v. Somu AIR 1925 Mad 1017. His Lordship said that, unless a mortgagor, depositing money under Section 83 of the Transfer of Property Act, procured the appointment of a guardian ad litem for the minor mortgagee cited by him, he cannot be held to have done all that was necessary for him to do in order to enable the mortgagee to draw the money.
12. A Bench of the Madras High Court had also similar facts to consider in Suppan Chettiar v. Rangan Chetty AIR 1938 Mad 405. Their Lordships held :
"The deposit under Section 83 is only a form of tender and there can be no doubt that a tender to be effective must be made to an adult, so that where the mortgagee happens to be a minor, the tender will be bad unless made to his guardian. ... It is thus perfectly clear that a deposit into Court (which, as stated above, is equivalent to a tender) becomes effective where the person concerned is a minor, only from the date when he is properly represented by a guardian."
13. In several cases in the Allahabad High Court also, the same question arose for consideration. In Khannu Mal v. Indra Pal Singh AIR 1923 All 183, their Lordships held :
"Section 84 provides that in the case of a deposit made under Section 83 interest shall cease from the day on which the mortgagor has done all that had to be done by him to enable the mortgagee to take the amount out of Court. Where the mortgagee is a person who is unable to draw the money out of Court, it is necessary that a guardian ad litem should be appointed and therefore unless such a guardian was appointed it cannot be said that the mortgagor had done all that was necessary for him to enable the mortgagee to draw the money."
14. The same view has been reiterated in Gokul Kalwar v. Chandar Sekhar AIR 1926 All 665 and Mt. Phool Kuer v. Rewari Singh AIR 1930 All
609.
15. As no guardian ad litem of the minors was appointed, I am constrained to hold that there was no valid service of notice upon those mortgagees as required under Sections 83 and 84 of the Transfer of Property Act, The position admitted by the learned Advocates for both sides is that interest cannot be held to have ceased to run simply because there was service of notice upon the major mortgagees, when it is clear that there was no such service of notice upon the minor mortgagees because, if interest runs, it must run in favour of all the mortgagees and not in favour of some of them. I, therefore, hold that the plaintiffs are not entitled to mesne profits with effect from the date of alleged service of notice upon the mortgagees relating to the deposit under Section 83 of the mortgage money due to the mortgagees.
16. The only point which now remains to consider is whether the plaintiffs are entitled to mesne profits with effect from the date of service of summonses of the suit along with copies of the plaint upon the major defendants, who acted on their own behalf and also acted as guardians ad litem of the minor defendants. Mr. Sanyal, who gave the reply on behalf of the appellants in the absence of Mr. Lalnarayan Sinha, stated that a pleader guardian ad litem was appointed for the minor defendants on 6-9-1950, and he also filed a written statement on their behalf.
While I find from the order-sheet that one Mr. Sidheshwari Prasad, Pleader, was appointed guardian ad litem of one or more defendants, I am unable to find any written statement filed by him on behalf of any such defendant. On the other hand, I find that the major defendants have filed written statements on their own behalf as well as on behalf of the minor defendants under their guardianship. That being so, it is clear that the major defendants themselves accepted to act and did act, as mentioned in the plaint, as guardians of the respective minors under their guardianship.
17. The only other argument which Mr. Sanyal has advanced is that, even though the major defendants may be deemed to be guardians ad litem of the minor defendants from the date of institution of the suit, the possession of the defendants cannot be held to have become wrongful from the date of service of notice of the suit upon them, & hence they are not liable for mesne profits with effect from that date. In support of this contention, he has relied upon AIR 1928 All 665 (supra).
The mortgage in question in that case was a usufructuary mortgage. The question was whether the plaintiffs were entitled to mesne profits with effect from the date of deposit of money under Section 83 of the Transfer of Property Act or from the date of the suit. Their Lordships held that the service of notice of deposit under Section 83 was not valid, and hence the plaintiffs were not entitled to mesne profits with effect from the date of that deposit. Proceeding to consider the second question, their Lordships said :
"It is clear that this mortgage was one of those possessory mortgages in which the defendants were only liable to surrender possession if everything was done by the mortgagors to discharge the mortgage debt by Jeth Sudi Puranmashi. In a mortgage of this kind the mortgagee can only be called upon to vacate possession in favour of the mortgagors if all steps necessary to redemption have been taken so as to enable the mortgagee to vacate possession in the fallow season of Jeth. It follows, therefore, that if in one particular year the mortgagors fail to take all the necessary steps to obtain redemption in the fallow season, the mortgagee is entitled, under the terms of the mortgage, to remain in possession till the fallow season of the following year, and it could not, therefore, be said that where the plaintiffs have made default in taking proceedings for redemption in one year the mortgagee is, for the year which follows, in wrongful possession. On the contrary, he is in possession in strict accordance with the terms of the mortgage contract."
18. It will appear from the observations which I have quoted that the .question in the form in which it arose in that case does not arise in the present case. There is nothing in the instant case to show that the possession of the mortgagees is to be wrongful from any particular date before or after which, under the terms of the mortgage, the mortgagees could not be required to vacate possession. Besides, I have already mentioned that, in paragraph 9 of the plaint, the plaintiffs have clearly given notice to the major defendants and also the minor defendants under their guardianship that they had deposited the money in the same Court under Section 83 of the Transfer of Property Act.
There is nothing in Section 84 to show that notice of the deposit must be served upon the mortgagee in this proceeding under Section 83 itself. If such notice is served in the course of a suit for redemption which follows the deposit, I do not see why it cannot be held that, on the date of service of the notice, the mortgagor has done all that was necessary for him to do in order to enable the mortgagees defendants to withdraw the deposited money and why it cannot be held that notice has been served upon the mortgagees defendants.
In these circumstances, I am of opinion, and I hold, that the plaintiffs are entitled to mesne profits with effect from 19-6-1950, when the Court recorded in the order-sheet that notices had been served upon the defendants, up to the date of actual delivery of possession of the mortgaged property to the plaintiffs decree-holders. As directed by the Courts below, however, mesne profits would be ascertained in a separate proceedings.
19. Subject to the modification which I have made, namely, that the plaintiffs would be entitled to realise mesne profits with effect from 19-6-1950, up to the date of actual delivery of possession of the property in question, the appeal is dismissed. In the circumstances of this case, each party will bear its own costs of this court.
Order accordingly.