SUNDRA RANI Vs. KRISHNA GOPAL

JUDGEMENT

(1.) This is a defendant's second appeal in a suit for injunction and possession in respect of a house. One Mohammad Razi executed a usufructuary mortgage of the house on 20th August, 1963 in favour of the plaintiff. The plaintiff's father Shri Krishna was a tenant in the house. The amount secured by the mortgage was Rs. 900/- Mohd. Razi, the mortgagor, sold his right, title and interest in the house to Abdul Khaliq, the first defendant, who is proforma respondent No. 2 in the appeal in this Court on 9th February, 1966, vide-Ext. A-12. Having purchased the house, Abdul Khaliq served a nonce by registered post on the plaintiff for redeeming the mortgaged property. The plaintiff refused. The first defendant thereupon deposited the sum of Rs. 900/- in the Court of Munsif, Gorakhpur under Section 83 of the Transfer of Property Act on 9th September, 1966. The plaintiff objected and alleged that a further sum of Rs. 145. 62 should have been deposited as the costs of repairs etc. , incurred by him, the mortgages. Abdul Khaliq sold the house vide Ext. A-l 4 on 4th November, 1967 to defendant-appellant No. 1. However, in view of the plaintiff's objection in the proceedings under Section 83 of the Transferor Property Act, the further sum of Rs. 145. 62 was deposited on l5th January, 1969 vtde-Ext. A-5 in the name of Abdul Khaliq. The plaintiff did not even then agree to receive the deposit so made under Section 83 of the Transfer of Property Act in accordance with the procedure prescribed by that section. In the meanwhile the first defendant-appellant obtained possession of the house from the tenant Shri Krishna on 7th September. 1968, vide-letter from the tenant, Ext. 14-B. The first defendant-appellant then demolished the house on receiving notice from the Municipal Board to the effect that its continued existence was dangerous to the life of the people passing that way. The plain tiff it appears then filed the suit giving rise to the present second appeal for injunction and possession against the first defendant-appellant, who had so purchased the mortgagors right, title and interest in the house, and her husband Darshan Lal, defendant-appellant No. 2. The suit was decreed by the trial Court on the finding that despite the deposit the mortgage subsisted and the plaintiff was entitled to recover posses sion of the property in suit as the mortgages thereof. The lower appellate Court confirmed the decree of the trial Court and its findings on all points, except that the lower appellate Court holds that the sale-deed in favour of the first defendant-appellant is perfectly valid and the finding of the trial Court to the contrary was wrong. Mr. R. B. D. Misra, holding the brief of Mr. S. N. Sahai Advocate, urged before me that inspite of the subsistence of the mortgage on the mortgagee's refusal to accept the deposit made under Section 83 of the Transfer of Property Act, the plaintiff-respondent was not entitled to any decree either for injunction or for possession. Learned counsel relied on Section 62 of the Transfer of Property Act in this context, which reads as under :- In the case of a usufructuary mortgage, the mortgagor has a right to recover possession of the property together with the mortgage-deed and all documents relating to the mortgaged property which are in the posses sion or power of the mortgagee : (a) Where the mortgage is authorized to pay himself the mortgage-money from the rents and profits of the property, when such money is paid; (b) Where the mortgagee is authorized to pay himself from such rents and profits, or any part thereof a part only of the mortgage-money, when the term (if any) prescribed for the payment of the mortgage- money has expired and the mortgagor pays or tenders to the mortgagee the mortgage-money or the balance thereof or deposits it in Court as hereinafter provided. " It is undisputed that the mortgage in question was a usufructuary mortgiee and the mortgagor did tender the mortgage amount to the mortgaged, by notice and on the latter's refusal to redeem the mortgage, he "did deposit the entire mortgage amount in the Court under Section 83 of the Transfer of Property Act. The mortgagee did not receive the amount so deposited and, therefore, the necessary steps to redeem the mortgage could not be taken in accordance with the summary procedure prescribed by Section 83 of the Transfer of Property Act, and the possession delivered to the mortgagor. However, the mortgagor was successful in getting back possession of the pro perty from the tenant Shri Krishna, who is paid said to be the father of the mortgagee, the plaintiff-respondent. The lower appellate Court has held that the defendant-appellant entered into peaceful possession of the house but posed the question whether the first defendant-appellant became the plaintiff-respondent's tenant, and answering that question in the negative decreed the suit and that too in spite of the fact that the first defendant-appellant was found to have raised substantial constructions on the land in place of the demolished house, though during the pendency of the suit and on an undertaking given by her that in case the suit was decreed, she would remove the constructions. The result arrived at by the two Courts below is highly unjust. The question is whether they were bound to decree the suit for injunction and possession on finding that mortgage subsisted on account of the plaintiff-respondent's refusal to receive the mortgage amount deposited in Court under Section 83 of the Transfer of Property Act. Section 84 of the Transfer of Property Act shows that interest on the principal money shall cease from the date of the tender or in the case of deposit where no previous tender of such amount has been made as soon as the mortgagor or such other person as aforesaid 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. It has come out from the recital of facts in the judg ments of the two Courts below that after the deposit of Rs. 900/- initially made by Abdul Khaliq on 9th September, 1966 under Section 83 of the Transfer of Property Act, the present plaintiff-respondent Krishna Gopal objected that the deposit was short by Rs. 145-62p. That amount was deposited by the first defendant-appellant in the name of Abdul Khaliq on 15th January, 1969 vide-Ext. A-5. These proceedings show that the notice of the deposit must have been served on the mortgagee, the present plaintiff-respondent, under Section 83 of the Transfer of Property Act. Thus interest on the principal money ceased from the date of the deposit. It does not appear from anything said in the judgments of either of the two Courts below that the amount depo sited was subsequently withdrawn by the first defendant-appellant, the mortga gor. It does appear that no interest has been running on the amount secured by the mortgagee and the principal amount having been deposited in full, the first defendant-appellant is entitled to possession of the mortgaged property, in accordance with the provisions of Section 62 of the Transfer of Property Act. It must be held that in these circumstances, notwithstanding the subsistence of the mortgage, the plaintiff-respondent lost the right to get into possession of the mortgaged property as its usufructury mortgagee. His only remedy was to take the amount deposited under Section 83, or at any rate to have proved in the present suit that some amount was due to him on the mortgagee before he could have claimed back possession of the property. My attention was invited to the cases referred to in the judgments of the two Courts below. The effect of Section 62 of the Transfer of Property Act does not appear to have been considered in those cases, rather it was held in Ram Bali Singh and another v. Sheikh All Ahmad (1928) 113 I. C. 23, which is a judgment of a learned Single Judge of this Court that a mortgagor who deposits the correct amount due to his mortgagee is entitled to resume possession of the property from the latter as proprietor, as soon as such deposit is made. In the view that I have taken it is not necessary for me to deal with the other grounds of objection to the decree appealed from, I, therefore, allow the appeal, set aside the decree appealed from and dismiss the plaintiff's suit with costs throughout. .