Dulhin Anupa Kuar vs Babu Kameshwar Nath Varma and Others

Harries, C.J.—This is a plaintiff''s appeal against a decree of the learned Sub-ordinate Judge of Chapra partly decreeing his claim in a redemption suit. The facts of the case can be shortly stated as follows: On 20th September 1909 defendant 5 executed a usufructuary mortgage bond in favour of one Bindhyachal Prasad, a practising pleader. This bond was to secure a sum of Rs. 6999-15-6. On 4th September 1933 defendant 5 executed another usufruotuary mortgage in favour of the plaintiff to secure a sum of Rs. 9000. Out of this sum of Rs. 9000 the plaintiff undertook to pay the sum of Rs. 6999-15-6 due from defendant 5 under the previous mortgage transaction. On 22nd August 1934 the plaintiff deposited this sum in Court in the names of defendants 1 to 4, that is in the names of Babu Bireshwar Nath, Babu Dineshwar Nath, Bahu Sureshwar Nath and Musammat Sanjharo Kuar. These were-the brothers, nephews and widow of the original mortgagee. Notices were served on all the defendants on 26th January 1935-but the money deposited in Court was not taken out and possession was not given to the plaintiff. On 25th July 1935 the present suit was instituted. I may add that defendant 1 died and that his two minor sons, Kameshwar Nath and Umeshwar Nath, defendants 1 (a) and 1 (b), were brought on the record in his stead. The defendants pleaded that the money deposited was not sufficient and further that it had been deposited in the names of the wrong persons.

It was the case for the defendants that this mortgage in favour of Bindhyachal was really in favour of the joint family and that after Bindhyachal''s death the other members of the family became entitled to the money to the complete exclusion of the widow, defendant 4. As I have stated, the money was paid in the names of the brothers and the nephews of the deceased mortgagee and the widow, and it was contended on behalf of the defendants that the persons entitled, namely the brothers and nephews of the mortgagee, could not take this money out by reason of the fact that the widow had also been joined with them as a person entitled to some share in the money.

The learned Subordinate Judge came to the conclusion that the money deposited was the correct sum; but he held that the money belonged to the joint family, namely the survivors after the death of Bindhyachal. In his view the widow had no right whatsoever to the money and that she should not have been joined along with the other defendants in this deposit. Accordingly he held that the deposit was not in accordance with the terms of Section 83, T.P. Act, and that the defendants were not bound to give up possession from the date of the deposit or from the date of the notices served upon them. Having held that the sum wag sufficient, he decreed the plain, tiff''s claim for possession but refused to give the plaintiff anything by way of mesne profits from the date of the notices, namely 26th Januay 1935. On behalf of the appellant it has been contended that the learned Judge should have given mesne profits from the date when notices were served upon the defendants, that is 26th January 1935. Counsel has argued that as the mortgage stood in the name of Bindhyachal the plaintiff was entitled to assume that Bindhyachal''s brothers, widow and nephews would be entitled to some interest in this mortgage money at Bindhyaohal''s death. He has not contended before us that the finding that this was joint family property is wrong; but he has urged that the deposit made in their names was a good deposit within Section 83, T.P. Act.

Once it is found that the widow had no interest in this mortgage money, then a deposit in the names of the persons really interested and the widow cannot be regarded as a good deposit. A deposit to be a good deposit must be one which would enable the persons entitled to take out the money forth, with. In the present case the persons really entitled, namely the survivors of the joint family, could not withdraw this money without the permission of the widow, though she had no interest whatsoever in it; and in my view as they could not withdraw the money immediately, they cannot be saddled with mesne profits up to the date of the decree. This view has been consistently held by the Allahabad High Court. In Ganeshi Lal and Others Vs. Rohni Rukumdhuj Prasad Singh it was held that in order that the consequences attached by Section 84, T.P. Act, 1882, to a tender made u/s 83 of the same should ensue, it is necessary that the mortgage money should be deposited to the credit of the real mortgagee, and of him alone.

Hence, where the mortgagee was a person in whose family the custom of primogeniture prevailed, and he died leaving him surviving two sons, a deposit of the mortgage money to the credit of both the sons was not a valid deposit within the purview of Section 83. This case followed an earlier case in Debendra Mohan Rai v. Sona Kunwar (1904) 26 All. 291 and a similar view was expressed by the Madras High Court in Madhavi Amma v. Kunhi Pathumma (1900) 23 Mad. 510. The facts of the present case cannot be distinguished from the facts of the oases to which I have referred, and in my view those cases correctly state the law on this matter. In the present ease the money having been deposited jointly in the names of persons interested and a person not interested, such could not be withdrawn at the will of the persons solely interested. That being so, the defendants in the present case were entitled to retain possession until the matter had been judicially decided.

The Court below has found that the per. sons interested are defendants 1(a), 1(b), 2 and 3 and he has directed that they are entitled to the money deposited. The learned Judge however gives the plaintiff no mesne profits from the date of the decree, and in my view this is clearly wrong. Once it had been determined that defendants 1(a), 1(b), 2 and 3 were the persons entitled to the deposit, the latter could have taken the money at once and given up possession. Apparently they did not give up possession at once, and I do not know whether they have given up possession even now. In my view the learned Judge should have granted the plaintiff mesne profits from the date of the decree which is 18th December 1936.

The amount of these mesne profits will be ascertained in proper proceedings. For the reasons which I have given, I would therefore allow this appeal in part and vary the decree of the Court below in the manner indicated above. The appellant is entitled to half the costs of this appeal. Defendants 1(a) and 1(b) are minors who are represented in this Court through their guardian ad litem. The appellant has not paid anything towards the costs of the guardian, and in my view he must pay a sum of fifty two rupees as guardian''s costs.

Manohar Lall J.

I agree.