SUBODH CHANDRA JAIN Vs. CHAMAN ARA BEGUM

JUDGEMENT

(1.) THESE two appeals preferred against the same appellate decree have been heard together and are being disposed of by a common judgment.

(2.) SMT. Chaman Ara Begum executed a mortgage in favour of Subodh Chand Jain in respect of the house in suit on January 28, 1970 for a consideration of Rs 2 000/- only. Hafiz Murtuza Husain, husband of the mortgagor, also joined in the execution of the mortgage The mortgagors deposited a sum of Rs. 2,0o0/- representing the mortgage money in Court of Munsif City, Bahraich on November 8, 974 under Section 83, Transfer of Property Act, 1982 Notice of the deposit was given to the mortgagee, but he refused to withdraw the money deposited in his favour. Hence the suit giving rise to these appeals was instituted by the mortgagors for redemption of the mortgage and for the recovery of Rs. 2036.60 as mesne profits from November 9, 1974 to July, 1976 and also for pendente lite and future mesne profits and interest. The suit was resisted by the Mortgagee on a number of grounds It was, interalia, pleaded that there was no valid deposit of the mortgage money in court 8nd, therefore, the mortgagors were not entitled to mesne profits. The suit was tried by the learned Civil Judge, Bahraich. He passed a decree on August 26, 1977 in favour of the mortgagors for redemption of the mortgage and possession over the house in suit and also mesne profits at the rate of Rs. 50/- per month from November 9, 1974 to July 19, 1976 and also pendente- lite and mesne profits. The mortgagee preferred an appeal against the decree of the trial court. The appeal was heard by the learned District Judge, Bahraich and the same was partly allowed on May 19, 1978. The decree of the trial court was modified to the extent that the suit for recovery of mesne profits for the period from November 9, 1974 to July 19, 1976 and pendente-lite and future mesne profits was dismissed. The costs in the appellate court were also made easy.

(3.) IT was held in Sheo Saran Chaudhari v. Ram Lagan Das, AIR 1932 Alld. 355, on which the learned District Judge has also placed reliance, that in a case where the mortgagor deposits the full amount under section 83, but fails to take steps to have a guardian-ad-litem appointed by the court, the minor mortgagee is not bound by the proceedings even-though a notice of deposit was actually issued to him under the guardianship of his father.