KUNJANDI VARGHESE Vs. HASSAN ROWTHER PATHUMMA VEEVI

JUDGEMENT

(1.) This second appeal is by the first defendant in a suit for redemption. The only question that arises for consideration is his liability for mesne profits. The suit was filed on 20.5.1122. The mortgage amount was immediately deposited. There being a claim for value of improvements a commission was issued and as per the commissioners report filed as Ext. I the value was fixed at Rs. 42.7 chs. The said amount was deposited by the plaintiff on 5.12.1124 and notice was served, on the defendant on 10.12.1124. The Trial Court awarded mesne profits from the said date. The said finding was confirmed in the appeal preferred by the first defendant. Now on his behalf it is contended that the deposit made by the plaintiff on 5.12.1124 was not an unconditional one and hence the courts were wrong in awarding mesne profits from the date of notice of the said deposit. In the petition filed at the time of the deposit it is stated that the plaintiff did not concede his liability to pay the value of improvements as fixed by the commissioner, that in order to obtain early possession of the property the deposit was being made and that the amount was to be disbursed only after the finding as to what was the correct amount due. So it is pointed out that it was not an unconditional deposit. Rahiman Kutty v. Kadiru Labba (1947 TLR 674) and Punnoose Chacko v. Punnoose Kuriakose (1950 (5) DLR Travancore - Cochin 280) are cited as authorities in support of this position. The position that a deposit should be unconditional in order to make the mortgagee liable for mesne profits has to be accepted subject to certain conditions. Though there were such statements as pointed out above when the amount in question was deposited the plaintiff also stated that he was making the deposit in order that he might obtain possession of the property. The mortgagee was at liberty to state that he was prepared to surrender the property if the amount was paid unconditionally to him. Here the mortgagee did not take up such a position. Further he had been raising contentions claiming enhanced value of improvements. He even went on appeal with regard to the said question. So it is clear that he was not prepared to surrender the property on accepting the value of improvements deposited by the plaintiff. Under such circumstances I do not see any ground to interfere with the concurrent findings of the lower courts to the effect that the first defendant was liable for mesne profits from the date of notice of deposit of the amount namely, 10.12.1124.

(2.) In the result, the appeal is dismissed with costs.