RAJBALLAM LAL Vs. RAM AUTAR ROUT

JUDGEMENT

(1.) In the suit out of which this appeal arises the plaintiff prayed for a decree tor redemption of certain lands which were the subject of a usufructuary mortgage dated the 25th of June, 1940, executed by Musammat Ramnandi Kuer in favour of the defendants. The plaiutift claims to have purchased the equity of redemption by a registered kebala dated the 4th of January, 1947. The learned Munsif gave a decree tor redemption in favour of the plaintiff and also granted a decree for mesne profits in favour of the plaintiff from the date of the suit till the date of recovery of possession. The learned Munsif also gave a decree for costs of the suit. The decree of the trial Court was alfirmed by the lower appellate court and also by the learned Single Judge of the High Court in Second Appeal.

(2.) On behalf of the defendants who have preferred this appeal under the Letters Patent the first point taken is that there was no tender of the mortgage money by the plaintiff and so the learned Single Judge was wrong in giving a decree for mesne profits from the date of the suit till I the date of delivery of possession. In our opinion, this argument is well founded and must be accepted as correct. The finding of all the Courts is that there was no tender of the mortgage money. But the learned Single Judge was of the view that the institution by the plaintiff of the suit for redemption is tantamount to tender of the mortgage money, and, therefore, under the provisions of Section 76 Clause (i) of the Transfer of Property Act the plaintiff was entitled to mcsne profits from the date" of the institution of the suit. The learned Single Judge relied on a decision of a Single Judge of the Rangoon High Court in Maung Po Tun v. Maung E Kha, 33 Ind Cas 735: (AIR 1917 Low Bur 122). We do not think that the proposition of law laid down by the learned Single Judge is correct. The language of Section 84 of the Transfer of Property Act is explicit that there will be cessation of interest only if the mortgagor has tendered 01 deposited in Court under Section 83 the amount remaining due upon the mortgage. Section 84 of the Transfer of Property Act states as follows: "84. When the mortgagor or such other person as aforesaid has tendered or deposited in Court under Section 83 the amount remaining due on the mortgage, interest on the principal money shall cease from the date of the tender or in the case of a 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: Provided that, where the mortgagor has deposited such amount without having made a previous tender thereof and has subsequently withdrawn the same or any part thereof, interest on the principal money shall be payable from the date of such withdrawal...........'' In the present case it appears that the plaintiff deposited the amount of mortgage money in Court only on the 8th of September, 1953, after the preliminary decree was granted by the trial Court on the 14th of August, 1953. In view of the language of Section 84 of the Transfer, of Property Act we are of opinion that the plaintiff is entitled to mesne profits only from the date of deposit, namely, from the 8th of September, 1953, up to the date when possession of the land was delivered to the plaintiff. For these reasons we hold that the decree of the learned Single Judge of this Court should be modified to this extent.

(3.) With regard to the costs of the suit, the submission of the learned Counsel for the appellants is that no decree for costs should have been given to the plaintiff in this case. We do not think there is any merit in this argument. It appears that in the written statement the defendants challenged the title of the plaintiff to redeem the property, and we see no reason why the plaintiff should not be given the costs he has incurred in the suit. In our opinion, the decree of the learned Single Judge of this Court is correct on this point.