GUPTESWAR MISSIR Vs. RADHA MOHAN MISSIR

JUDGEMENT

(1.) This revision application is a sequel to a lengtny litigation, the object of which was to redeem certain property held in usufructuary mortgage by Bamdeo Missir, Jhakar Sah and Kamala. Prasad Misra. The original principal of the mortgage was Rs. 300, and the plaintiffs Iswar Dutt and his sons Kamta Prasad Missir and Gupteswar Missir tendered this amount to the mortgagees who, however, claimed that a larger sum was due. A. deposit was made under Section 83, Transfer of Property Act, of the sum of Rs. 300 on June 1, 1927. Notice was served, but the mortgagees did not agree to accept the amount tendered in full satisfaction of their mortgage debt; so that proceeding was in-fructuous. Iswar Dutt then instituted a title suit claiming redemption which on his death was prosecuted by his sons in his place. The suit was instituted in 1927 and the litigation continued through appeal and second appeal to the High Court. Daring its pendency Radha Mohan Misir and Bansi-dhar Missir, on March 19, 1934, purchased in execution of a money decree the right, title and interest of Kamta Prasad and Gupteswar in the mortgaged property and thereafter were permitted to be added as appellants in the second appeal then pending in the High Court. The final decision was that the plaintiffs were entitled to redeem on payment of Rs. 300. In the meantime Kamta Prasad and Gupteswar had entered into two simple mortgage transactions in 1929 and 1933, respectively, by which they had mortgaged this property to Ramdahin Missir and others who in July 1936 asked to be permitted to redeem the mortgage of the defendants; by depositing Rs. 300. The Court allowed them to make a deposit provisionally and the money so deposited by them is still in Court; but on August 11, 1936, the Court after hearing the Pleaders, ordered that the defendants mortgagees should take Rs. 300 which had been deposited by Iswar Dutt under Section 83 and not Rs. 300 which had been deposited by Ramdahin and others. Against this order Kamta Prasad and Gupteswar objected that Rs. 300, deposited under Section 83 was their money and they were entitled to a refund of it and that the redemption money of Rs. 300 was to be paid by the persons to whom the interest in the mortgaged property had passed. The Court rejected this contention and directed the mortgagees to draw the Rs. 300 which had been deposited under Section 83. This order along with that of August 11, 1936, is the subject-matter of the present application in revision.

(2.) It is contended that when Radha Mohan and others bought the equity of redemption in 1934, they bought the right to pay the mortgage and get the property and not the right to get the property without paying the mortgage. On the other hand, Mr. Mitter for the opposite party contends that by the auction sale of March 19. 1934. there passed to his clients whatever rights Kamta Prasad and Gupteswar had both in the mortgaged property and in the suit. The petitioners further object to the order of the Munsif in so far as it rejects the prayer for payment to Kamta Prasad and Gupteswar of the costs incurred by them up to September 14, 1934, when the purchasers of the equity of redemption got themselves added as appellants in the record of the High Court. To this contention again Mr. Mitter's answer is that his clients purchased in March 1934 all the interests of Kamta Prasad and Gupteswar in the litigation as well as in the property.

(3.) I shall take first the question regarding Rs. 300. The implication of the view taken by the Court below and supported by Mr. Mitter is that this Rs. 300 has already been absorbed in reduction of the mortgage debt and is no longer a separate asset distinct from the mortgaged property. There is difficulty, however, in holding that this is the effect of the making of a deposit under Section 83, Transfer of Property Act. No doubt if the mortgagee accepts the money deposited or tendered in full satisfaction, the result follows that the mortgage is extinguished; but if he does not do so, then it is clear from Section 84 that the mortgagor who has made a deposit can subsequently withdraw the money deposited or any part thereof. That makes it clear that by the mere fact of making a tender or a deposit the money has not ceased to be property of the mortgagor and has not become merged in the mortgaged property in any way. This is fully in agreement with the view taken in Ratna Kuer V/s. Nanhaki AIR 1924 Pat. 41 : 73 Ind. Cas. 1053 : 4 PLT 720 : (1923) Pat. 256. Here the mortgagor on refusal of his tender applied to withdraw the money deposited. The mortgagee then changed his mind and expressed himself as willing to accept the money in deposit in full discharge of the mortgage debt. It was held that the money was the property of the mortgagor and when he demanded its return, the Subordinate Judge had no jurisdiction to order it to be paid to the mortgagee. That sufficiently establishes the position when a tender has been made and has not been accepted and no suit has as yet been instituted. But it is suggested that the position in some way may have been changed by the fact of the mortgagor having instituted a suit for redemption. Whether such a consequence could ensue if the prayer in the plaint was for possession of the mortgaged property on the footing that the mortgage had been extinguished by the deposit of the entire mortgage money is a question I have not got to decide here because the plaint was framed otherwise. The prayer was for a decision that the plaintiff has right to enter into possession of the zarpeshgi property on payment of Rs. 300, and that a decree may be passed in favour of the plaintiff for recovery of khas possession of the zarpeshgi property free from encumbrance on payment of Rs. 300.