MUNNA LAL Vs. CHATAN PRAKASH

JUDGEMENT

(1.) This is a first appeal by the sole plaintiff Munna Lal whose suit has been dismissed by the learned Civil Judge. The mortgage in suit was dated 4 June 1918 executed by Mt. Kirpa Devi, widow of Raghunath Prasad, in favour of Shambhu Nath, mortgagee. The amount was Rupees 40,650 at eleven annas per mensem with six monthly rests. The document is printed on page 43 et seq. The main defence was that there had been a tender under Section 83, T.P. Act, by Shib Charan Das, defendant 6, on 5 September 1921 of Rs. 50,237-8-6 for payment, but that sum had not been withdrawn by the mortgagee. Subsequently there was payment of the amount which was withdrawn by the present plaintiff. The present plaintiff claims however that interest did not cease to run by the tender of 5 September 1921 under Section 83, T.P. Act, as the money was subsequently withdrawn by Shib Charan Das, defendant 6, and the claim is for various periods of interest after that tender. The claim has been disallowed in full by the Court below. The claim before it was for Rs. 34,000. In appeal the amount has been reduced to Rs. 17,000.

(2.) The details are that on p. 49 there is a mortgage dated 31 August 1921 by Mt. Kirpa Devi for Rs. 64,250 in favour of defendant 6, Shib Charan Das, leaving with him Rs. 50,203 to be paid for the full satisfaction of the mortgage in the present suit. After the registration of that document, on 5 September 1921 defendant 6 made a deposit in the Court of the Subordinate Judge of Meerut adding a small sum of Rs. 34-8-6 for the interest on the intervening five days, the total deposit being Rupees 50,237-8-6. The original mortgagee Shambhu Nath died on 12 May 1919 and was succeeded by his widow Bishun Devi. The deposit was made in the name of this lady, who was alive on the date of deposit, but it so happened that before she received notice and could withdraw the money she died. The exact date of her death is not given but these facts are admitted. It may be noted that on page 55 of the paper book No. 13 in the array of the opposite parties in the application under Section 83, T.P. Act, was the present plaintiff Munna Lal. The other persons in that application Nos. 2 to 12 were trustees of a trust created of the property left by L. Shambhu Nath and the opposite party No. 1 was Mt. Bishun Devi. Therefore on her death the question was whether the plaintiff Munna Lal was entitled to withdraw the money or the trustees. On p. 59 there is an application by Munna Lal in the proceeding under Section 83, T.P. Act, claiming that he was entitled. On the other hand, the trustees claimed that they were entitled.

(3.) Some question arose as to whether the money would be placed in deposit in the Allahabad Bank at Meerut and there was no agreement on this point and eventually by an order Ex. 4 dated 4 February 1922 the Subordinate Judge stated that as the parties did not agree on the point the application should be filed. This means that the application under Section 83, T.P. Act, should be filed. A few days later, on 8 February 1922, defendant 6 withdrew the money as the proceedings under Section 83 had terminated. On 29 November 1922, Munna Lal brought a suit, No. 272 of 1922, against the trustees in the Court of the Senior Subordinate Judge of Ludhiana in the Punjab. In this suit there was an application made as shown on p. 73 by defendant 6. Shib Charan Das, on 6 June 1925 for the deposit of Rs. 50,000, which deposit was allowed with the consent of parties on 16 June 1925, and the amount was deposited in the bank as shown on p. 77. The plaintiff obtained a decree in his favour in this suit and eventually the plaintiff on p. 79 withdrew the money under an order dated 13 December 1926. The plaintiff has made in the present suit claims for interest for various periods between the dates 5 September 1921 of the original deposit and the date of his withdrawal under the order of 13 December 1926. The Court below has dismissed the suit on two grounds, one that the plaintiff was not entitled to obtain any interest after the deposit on 5 September 1921 by defendant 6, and secondly that the present suit is time-barred. The Transfer of Property Act before the Amendment Act of 1929 was the Act in force at the time of these transactions. In Section 84 of this Act, there was no provision in regard to the withdrawal of a deposit by a person who had made the deposit. Such a provision no doubt is contained in the amended Act and is as follows: 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.