BAYYA SAO Vs. NARASINGA MAHAPATRO

JUDGEMENT

(1.) The facts necessary for the decision of this appeal may be briefly stated. Defendants Nos. 1 to 11 are related to one another, but are not members of an undivided family, Defendant:) Nos. 1 to 3 belong to one family, defendants Nos. 4 to 7 to another and defendants Nos. 1 to 11 to a third family. The other defendants in the suit are only formal parties. The eleven defendants, who are the owners of an inam village, executed three registered usufructuary mortgage deeds in 1885 in favour of the plaintiffs, according to the terms of which the debt was to be discharged out of the usufruct of certain lands by the end of the harvest of the year Krodhi (1904-1905). In the years 1899-1900 further sums ware borrowed under exhibits E, D, C and A. These amounts were also to be paid up at the time stipulated for the discharge of the previous bonds, and, if the defendants failed to do so, the mortgaged lands were to continue in the possession of the plaintiffs for a further period of five years. The terms of exhibits A, C, D and E are not exactly similar. Exhibits A and D provide that the lands should remain in the possession of the plaintiffs for a period of five years from the 15th Palgunna Suddha of Krodhi (the 21st March 1905), if the amounts due thereunder were not paid by that date. Exhibits 0 and E provide for the execution of mortgage bonds in case of non-payment before the 15th Palgunna Suddha of Krodhi (the 21st March 1905), entitling the plaintiffs to hold possession of the lands as security for their debt for a period of five years, and sets out the terms on which they were to hold them, But it is evidently understood under these documents also that the defendants would not be entitled to get possession before the end of the further period, if they failed to pay the debts before the time fixed for payment. These defendants took possession of the lands about the close of May 1905 according to the finding of the lower Court. On the 27th January 1905, the representatives of the three families sent to the plaintiff the notice, exhibit II, stating that the time fixed in the bonds of 1885 up be which the plaintiffs were entitled to be in possession of the mortgaged lands would expire with that year s paddy crop, that they were prepared ho pay the amounts duo under exhibits C, D and E and that the accounts with respect to the amounts due under them should be settled through mediators. It may be noticed that no reference is made in this document to the mortgage hood, exhibit A, the position, taken up by the defendants apparently being that the plaintiffs had not lent the amount mentioned in that document, and nothing was therefore due to them from the defendants on it. The suit is for the recovery of possession of the lands, which the plaintiffs claim to he entitled to hold till the discharge of the debts due to them under exhibits A, C, D and R and for mesne profits from the date of dispossession. The defendants contend that they are entitled to redeem the mortgages before the expiration of five years, and that the plaintiffs are not therefore entitled to possession. They also plead, that nothing is due to the plaintiffs under exhibit A as the consideration due on that document was not paid to them by the plaintiffs. Subsequent to the institution of this suit, which was on the 2nd August 1905 the defendants pub in petitions on the 25th August 1905 under Section 83 of the Transfer of Property Act in the District Munsif s Court of Sompeta depositing the amounts due under exhibits 0, D and E Only the second plain-tiff appeared in answer ho the notice given of this petition and he declined to receive the amount deposited in Court in full satisfaction of the debt. The defendants contended that the plaintiffs were not entitled to interest on exhibits C, D and E after their refusal to receive the amount deposited.

(2.) The principal questions before the lower Court wore whether interest on the bond in favour of the plaintiffs ceased in consequence of the tender made in the District Munsif s Court, whether the bond (exhibit A) was not supported by consideration, and whether the plaintiff s were disentitled to recover possession in consequence of the defendant s alleged right be redeem not withstanding the provision in the bonds that the plaintiffs were entitled to remain in possession of the lands for five years from the end of Krodhi (the 4th April 1905). The District Judge decided the last question in favour of the defendants, and directed that the plaintiffs should receive the amounts deposited for exhibits C, D and E from the District Munsif s Court of Sompeta. He also held that the plaintiffs were not entitled to interest after the deposit With regard to the consideration for exhibit A, he came be the conclusion that only Ha. 100 out of the total amount of ltd. 300 was paid on the 17th May 1903), and he gave the plaintiff s, a decree for that amount and interest, and further interest till data of payment, and directed that in case of future by the defendants to pay the amount by the 30th December 1907, the plaintiff s should be placed in possession of the lands mortgaged under it. He held that though the suit was rightly instituted by the plaintiffs when it was brought, the parties might have amicably arranged their disputes without persisting in the litigation, and he, therefore, ordered that the defendants should pay the plaintiffs the fall stamp duty, paid by them on the plain and one-half of the subsequent costs.

(3.) The decree in so far as it disallowed the plaintiff s claim for possession is not appeal against. The appellant impeaches the judgment of the lower Court on three points: first, the finding that the He. 203 out of the consideration for exhibit A was not paid; secondly, the finding that the tender under Section 83 of the Transfer of Property Act was valid as against the plaintiffs and disentitled thorn to subsequent interest; thirdly, the order about costs