PANDIRI SATYANANDAN Vs. PARAMKUSAM MANGAYYA

JUDGEMENT

(1.) This was a suit brought by the plaintiffs on certain dealings in khata between the 1st plaintiff's wife and the defendants. The khata was seltled in 1923 and a sum of about Rs. 40,000 was found due. The 1 plaintiff's wife died on June 9, 1923, leaving an unregistered will in favour of the plaintiffs. The will is dated June 5, 1923. This suit was filed on September 10, 1925, and no probate had been taken out nor succession certificate before the filing of the suit. An application for attachment before judgment was taken out by the plaintiffs on October 6, 1925. We find from Ex. 11, a reply notice sent by the defendants Pleader to the plaintiffs Pleader, that the defendants had no objection to pay the suit amount if proper security was furnished or if probate of the will had been obtained. This notice was said to have been received on October 12, 1925, and on October 17, 1925, the 1 plaintiff filed a further affidavit Ex. XVI in the attachment proceedings in which he stated that This letter (of the defendant dated October 12, 1925), implies that the first defendant is ready with money and he may be directed to pay the money into Court, and if he fails to pay, his bad motives and objects will be clear to the Court.

(2.) Hence it is obvious that the plaintiffs suspected that this letter Ex. 11 was a piece of bluff. However the defendants did deposit the amount in Court on October 24, 1925, and on November 24, 1925, they filed a written statement. Ultimately the Court held that it could not pay the money to the plaintiffs without probate of the will being secured and this was not done until 1928, after which the suit was disposed of. The Court ordered that the defendants should pay interest for one month from October 24, 1925, to November 24, 1925, that is from the date of the deposit to the date of the written statement on the ground that no notice of the deposit as required by Order XXIV, Rule 2, Civil Procedure Code, had been served on the plaintiffs. As regards costs, the lower Court ordered the defendants to pay the plaintiffs one- half of the court-fee and to bear their own costs except to the extent to which they succeeded. This appeal is preferred by the defendants on two matters, first with regard to the interest allowed for one month from October 24, 1925, to November 21, 1925, and secondly as regards the directions as to costs.

(3.) With regard to the first matter the question is whether subject to their giving security, the plaintiffs could have withdrawn the amount deposited in Court if they had pleased. Looking into the previous correspondence between the parties and to the subsequent statements and affidavits filed, we feel no doubt that had the plaintiffs been willing to give security they could have drawn this amount immediately after it had been deposited. We have already alluded to defendants offer Ex. 11 which reached the plaintiffs by October 12, 1925, and it is the plaintiffs who by Ex. 14, invited the Court to ask the defendants to make this deposit, evidently believing that the offer of deposit was not serious. There is in Ex. 20, dated July 6, 1927, a statement in para. 5 which runs thus: even on the day on which we deposited money in Court, we represented to the Court in the presence of the other side that we do not want to keep the plaintiffs off from the money and that all that we are anxious for is that no opportunity be left to the plaintiffs to trouble us after receiving the money.