M MANICKCHAND Vs. ELIAS SALEH MOHAMED SAIT

JUDGEMENT

(1.) This appeal arises out of Original Suit No. 19 of 1943 instituted in the Court of the District Judge, Civil Station, Bangalore, by four plaintiffs. The first two plaintiffs were Elias Saleh Mohamed Sait (respondent No. 1) and Mohamed Saleh Mohamed Sait (respondent No. 2), sons of Saleh Mohamed Sait who died in or about the year 1917, leaving behind his widow, Rahamatbai, three minor sons and three daughters. The eldest of the minor sons was Ahmed Saleh Mohamed Sait, who also died before the institution of the suit, the other two being respondents 1 and 2. At the time when inheritance opened on the death of Saleh Mohamed Sait, admittedly the family was governed by Hindu Law in the matter of succession and inheritance, so that the daughters did not acquire any right in the property left by their father. The principal relief claimed in the suit was for accounts under section 76 of the Transfer of Property Act, No. 4 of 1882 (hereinafter referred to as "the T. P. Act") in respect of a mortgage deed dated 14th July, 1933 (Ext. C) executed by Ahmed Saleh Mohamed Sait, the two respondents in this appeal, and their mother Rahmatbai, for a sum of Rs. 50,000 mortgaging premises No. 6 South Parade, Civil and Military Station, Bangalore, in favour of Khanmull who was defendant in the suit and who is now represented by the appellants as his legal representatives. Before the institution of the suit, the mortgagors' rights in the mortgaged property had been transferred to Khan Saheb Abdul Gani Saheb and Khan Saheb Abdul Shakoor Saheb who also joined in the suit as plaintiffs 3 and 4. The eldest son Ahmed Saleh Mohamed Sait became a major in or about the year 1927 and, till that time, Rahamatbai was managing the, property. Until the year 1930, it appears that no debts were taken by the members of this family. The first loan that was taken was on the basis of a simple mortgage deed dated 20th May 1930 executed by the eldest son Ahmed Saleh Mohamed Sait as well as by Rahamatbai as guardian of respondents 1 and 2 who were minors at that time. Thereafter, a number of loans were taken details of which need not be mentioned. One of these loans was on the basis of a usufructuary mortgage executed in favour of one J. Krishnalal; but both the Courts below have held that Krishnalal was a benamidar for the defendant Khanmull, so that the various loans taken were all from Khanmull. On 14th July, 1933, the three brothers and their mother executed a mortgage deed Ext. C for a sum of Rs. 50,000 working out the consideration on the basis of the amounts due under earlier loans, and adding to it the amount of cash paid at the time of execution of this mortgage deed. Ahmed Saleh Mohamed Sait died in the year 1939 and his mother Rahamatbai also died in the same year. On 21st January, 1943, the two respondents and their sisters deposited a sum of Rs. 50,000 under section 83 of the T. P. Act to discharge the debt under the mortgage deed Ext. C dated 14th July, 1933, but the defendant did not accept that money, with the result that the petition under Section 83 of the T. P. Act failed. It was on 22nd January, 1943 that the two respondents sold the mortgaged property to plaintiffs 3 and 4 for a sum of Rs. 75,000. Thereafter, plaintiff No. 3 filed Original Petition No. 11 of 1943 in the Court of the District Judge, Civil Station, Bangalore, under Section 83 of the T.P. Act and deposited a sum of Rs. 66,463-15-6 to be paid over to the mortgagee. Khanmull, the mortgagee accepted the amount deposited as correct, delivered possession of the mortgaged property and the necessary documents, and obtained payment of the amount. A joint memo, dated 15th March, 1943 was filed evidencing this transaction and the Court passed an order on the same date recording it. Thereafter, on 3rd November, 1943, the four plaintiffs, mentioned above, instituted the Original Suit No. l9 of 1943 and, as mentioned earlier, the main prayer was that the defendant be directed to render an Account of his administration of the mortgaged property from 14th July, 1933 to 12th March, 1943, and to pay to the plaintiffs the amount that may be found due to the plaintiffs after adjusting interest that may be found due to the defendant at a reasonable rate and after deducting amounts not paid and interest charged from out of the principal of Rs. 50,000 said to be due on the mortgage of 14th July, 1933. The second and the third reliefs in the suit related to matters which are not the subject-matter of this appeal in this Court and, consequently, need not be mentioned. The fourth and the fifth reliefs were in respect of the claim for interest at 6 per cent per annum on the amount found due under the first relief and for costs.

(2.) A preliminary decree was passed by the trial Court on 4th February, 1948, directing that accounts be taken pursuant to Section 76 of the T. P. Act on the foot of the mortgage deed Ext. C dated 14th July, 1933, or the period beginning with the date of that deed, and directing the defendant to file his full statement of accounts in that behalf in the manner of a verified pleading. It was further directed that, after the plaintiffs filed their statement by way of a similar pleading, issues arising thereon for determination between the parties will be settled and then enquiries will be held by way of evidence, if necessary, or by way of arguments of counsel, and the suit will be proceeded with for the purposes of passing a final decree. The costs on and incidental to this part of the decree were left to be adjudged on the result of the enquiry. There was also a direction specifically reserving for consideration at the time of the final decree proceedings all questions relating to accounting as well as reliefs claimed under the Usurious Loans Act No. 10 of 1918 (hereinafter referred to as "the Act").

(3.) Both parties appealed against the preliminary decree in the High Court of Mysore. The appeal of the plaintiffs was confined to reliefs Nos. 2 and 3 in the suit which had been refused by the trial Court and, consequently, we are not concerned with the decision of the High Court in that appeal. The defendant in his appeal challenged the decree for accounting. The validity of the decree was assailed mainly on two grounds. One was that, in view of the unconditional tender of the mortgage money on two occasions under Section 83 of the T. P. Act, the plaintiffs were estopped from instituting the suit for accounting; and the other was that the mortgage in question fell within the scope of Section 77 of the T. P. Act so that accounting could not be claimed under Section 76 of the T. P. Act. This appeal was decided by a Full Bench of the High Court which held that the proceedings under Section 83 of the T. P. Act did not operate so as to conclude the right of the mortgagors in all respondents, and that a, mortgagor, who had applied to the Court and made a deposit under Section 83 of the T. P. Act was not estopped, merely by reason of the deposit and payment to the mortgagee of the amount so deposited. from demanding an account of the income of the mortgaged property under S 76 of the T. P. Act by a separate suit. The Full Bench noticed that the trial Court had directed an account to be taken under Section 76 of the T. P. Act, but had not gone into the question whether the mortgage deed fell within -Section 77 of the T. P. Act or not, so that the High Court refrained from saying anything further about the incidence of Sections 76 and 77 to the transactions in suit.