NARAYAN SAHU Vs. KISHUN SAHU

JUDGEMENT

(1.) This appeal arises out of a suit instituted by the respondents to redeem a usufructuary mortgage deed dated 10 October 1896. The plaintiffs whose right to redeem the mortgage has not been disputed in this Court deposited the entire mortgage debt which amounted to Rupees 4,000 in the Court below under Section 83, T.P. Act, on 15 February 1927 and subsequently brought the present suit on 30 September 1919. The suit had to be brought as Narayan Sahu, who is defendant 2, raised various objections to the deposit, one of the objections being that the deposit had not been made to the credit of the real mortgagees only but to the credit of seven persons some of whom were not interested in the property.

(2.) It appears that the usufructuary mortgage deed had been executed in favour of two persons named Rup Chand and Deochand. Defendants 3 to 7 are admittedly the heirs of these persons. The case of Narayan Sahu (defendant 2) in his petition of objection to the deposit made by the plaintiffs under Section 83 was that Rupchand and Deochand were mere farzidars and that he and his brother Chamru Sahu were the only persons interested in the mortgage. The same case is set up in his written statement filed in the present suit but it is further asserted that the right of his brother defendant 1, Chamru Sahu, has been barred and extinguished by estoppel, acquiescence and limitation and that defendant 2 has been in adverse possession for more than twelve years.

(3.) Narayan Sahu also contends in the present suit that the deposit under Section 83, T.P. Act, not having been made in accordance with law, the plaintiffs claim for mesne profits must be negatived. A number of other pleas were set up but it is unnecessary to refer to them because they do not arise in this appeal. The trial Court has decreed the suit and awarded mesne profits from 15 February 1927, that is to say, the date on which the plaintiffs deposited the zarpeshgi dues under Section 83, T.P. Act; and the main question which we have to decide is whether the plaintiffs are entitled to any mesne profits. Another question which is incidentally raised is whether defendant 2 alone is entitled to withdraw the money deposited by the plaintiffs.