Narayan Sahu vs Kishun Sahu and Others

Fazl Ali, J.—This appeal arises out of a suit instituted by the respondents to redeem a usufructuary mortgage deed dated 10th 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 u/s 83, T.P. Act, on 15th February 1927 and subsequently brought the present suit on 30th 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.

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 u/s 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.

Narayan Sahu also contends in the present suit that the deposit u/s 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 15th February 1927, that is to say, the date on which the plaintiffs deposited the zarpeshgi dues u/s 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.

The question whether the plaintiffs are entitled to mesne profits depends upon the validity or otherwise of the deposit made by the plaintiffs u/s 83, T.P. Act, on 15th February 1927. As I have already stated, the zarpeshgi deed stands in the name of Rupchand and Deochand and it is not denied that defendants 3 to 7 have been recorded as zarpeshgidars in the record of rights. It appears however that in 1916, a suit was brought by defendant 3 against certain tenants. The tenants pleaded that they had paid the rent to Narayan Sahu (defendant 2) and Chamru Sahu (defendant l) believing in good faith that they were the persons entitled to receive the rent.

Narayan Sahu (defendant 2) intervened in the suit u/s 77, Chota Nagpur Tenancy Act, and supported the tenants'' plea by admitting that he had realised the rent and by asserting that he was entitled to do so. It was held that the tenants had paid the rent to defendant 2 in good faith and this decision was upheld in appeal by the District Judge as well as in second appeal by the High Court. Defendant 1 is said to have supported defendant 3 in this dispute with the tenant but defendant 2 at the same time did not deny that defendant 1 was jointly interested with him in the mortgaged property. The plaintiffs'' case is that they deposited the zarpeshgi money to the credit of defendants 1 to 7 on account of the dispute between the two sets of defendants and because on the one hand they found that defendants 3 to 7 were the persons recorded in the record of rights as zarpeshgidars and they found, on the other band, that the property was in possession of defendants 1 and 2.

The question is whether in these circumstances the deposit made to the credit of defendants 1 to 7 can be held to be invalid and whether the plaintiffs should be deprived of the mesne profits from the date of the deposit. The trial Court has, relying on certain observations made in The varaya Reddy v. Venkatachalam Pandithan 1918 Mad 1360 held that if there be two sets of claimants to the mortgage money, a deposit u/s 83, T.P. Act, in the names of all the claimants is the proper course for the mortgagor to adopt, leaving it to the Court to decide as to who is the rightful claimant. The trial Court has also held that defendants 1 and 2 are responsible for the confusion created as to their title by reason of the fact that they have allowed the property to stand in the benami names of defendants 3 to 7.

It is urged by the learned advocate for the appellant that it was the duty of the mortgagor to find out the real mortgagee and to deposit the money to his credit. There can be no doubt that ordinarily such a duty would rest upon the mortgagor, but I am inclined to agree with the learned Subordinate Judge that in the circumstances of the present case when defendants 1 and 2 had allowed the property to stand in the benami names of defendants 3 to 7 and allowed them to be recorded in the record of rights, the only safe course for the plaintiffs was to make the deposit to the credit of not only defendants 1 and 2 but also defendants 3 to 7.

In my opinion, the deposit made by the plaintiffs was valid, and having regard to a number of authorities which have been cited before us, I am of opinion that the plaintiffs are entitled to mesne profits from the date of the deposit. In Nagathal v. Arumugam Pillai 1928 Mad 354 owing to quarrels among the heirs of the mortgagee the amount deposited by the plaintiff in Court u/s 83, T.P. Act, was allowed by him to remain in deposit until his suit for redemption was decreed. It was held that as he had done all he could to enable the mortgagee to withdraw the amount, interest on the mortgage ceased to run from the date of the deposit and the mortgagor thence was entitled to mesne profits.

A similar view was expressed in Baluswamy Aiyar v. Kriahnaswamy Aiyar 1924 Mad 559 and it was further held that a dispute between the legal representatives of the mortgagee as to each other''s title to receive the mortgage money will not render the deposit conditional and the mortgagor cannot be made to suffer in consequence where the correctness of the amount is not disputed. u/s 83, the mortgagee upon service of notice may on presenting a petition stating the amount then due under the mortgage and his willingness to accept the money so deposited in full discharge of such amount and on depositing in the Court the mortgage deed and all documents in his possession or power relating to the mortgaged property apply for and receive the money. In the present case defendant 2 could have taken the course indicated in the section but he preferred to contest the right of the plaintiffs to redeem the property and asserted among other things that the plaintiffs were mere benamidars of certain other persons and were not entitled to make the deposit.

It appears to me therefore that the plaintiffs are entitled to mesne profits from 15th February 1927.

The question however still remains as to the basis upon which the mesne profits should be awarded. The trial Court has awarded mesne profits at the rate of Rs. 375 per year and based his decision upon the evidence of the plaintiff that Rs. 375 is the net annual income from his village. This statement of the plaintiff has not been challenged in cross-examination and no rebutting evidence has been adduced to show that the statement is not correct. In my opinion therefore the decree for mesne profits must stand.

The only serious question which remains to be decided is whether the entire amount which has bean deposited in Court by the plaintiffs should be made over to defendant 2 as claimed by him. The fact which is in favour of defendant 2 is that neither defendant 1 nor defendants 3 to 7 have appeared in the suit and that defendants 3 to 7 have taken no steps since the dismissal of the rent suit brought by defendant 3 in 1916 to question the decision given in that suit. It appears to me however that to guard against future disputes the Court below should be directed to issue notice upon defendants 1 and 3 to 7 to show cause why the money should not be paid to defendant 2 and should pay the money to defendant 2 if defendants 1 and 3 to 7 do not object.

In case any of these defendants prefers an objection, the amount in deposit should be paid to such person or persons as the Court below may adjudge to be entitled to receive payment thereof. With this modification the decree of the lower Court is affirmed and the appeal is dismissed with costs.

James, J.

I agree.