99,603.61 P out of which Rs.
The first loan that was taken on the basis of a simple mortgage deed dated 20th May, 1930 executed by the eldest son Ahmed Saleh Mohamed Sait as well as by Rahamatbai as guardian of respondents 1 and 2 who were minors at that time.
The question whether the proceedings under s. 83 of the T.P. Act debarred the plaintiffs from filing a suit for accounts and payment of surplus was decided by the trial Court in the preliminary decree when the trial Court held that, in spite of those proceedings, the suit was maintainable and proceeded to pass a preliminary decree for accounts.
13,342.09 P was to carry interest 6 per cent per annum from 3rd November, 1943, the date of the suit, and the balance of Rs.
The defendant in his appeal challenged the decree for accounting.
dated 15th March, 1943 was filed evidencing this transaction and the Court passed an order on the same date recording it.
The principal relief claimed in the suit was for accounts under section 76 of the Transfer of Property Act No.
Ahmed Saleh Mohamed Sait died in the year 1939 and his mother Rahamatbai also died in the same year.
This order was made by the High Court on the 19th September, 1958.
This appeal was decided by a Full Bench of the High Court which held that the proceedings under s. 83 of the T.P. Act did number operate so as to companyclude the rights of the mortgagors in all respects, and that a mortgagor, who had applied to the Court and made a deposit under s, 83 1068 on the basis of the applicability of the Act.
C dated 14th July, 1933, for the period beginning with the date that deed, and directing the defendant to file his full statement of accounts in that behalf in the manner of a verified pleading.
2 that the mortgage transaction evidenced by the deed Ext.
R was on 22nd January, 1943 that the two respondents sold the mortgaged property to plaintiffs 3 and 4 for a sum of Rs.
The appeal of the plaintiffs was companyfined to reliefs Nos.
86,261.51 P was to carry interest at the same rate from 4th February, 1948, the date of the preliminary decree passed by the trial Court, up to the date of realisation.
50,000/ said, to be due on the mortgage of 14th July,.
A joint memo.
C for a sum of Rs.
Before the institution of the suit, the mortgagors rights in the mortgaged property had been transferred to Khan Saheb Abdul Gani Saheb and Khan Saheb Abdul Shakoor Saheb who also joined in the suit as plaintiffs 3 and 4.
6, South Parade, Civil Military Station, Bangalore, in favour of Khanmull who was defendant in the suit and who is number represented by the appellants as his legal representatives.
Thereafter, a number of loans were taken, details of which need number be mentioned.
36,750/. Interest due 12 per cent per annum on the principal amount up to the date of execution of the mortgage deed Ext.
A preliminary decree was passed by the trial Court on 4th February, 1948, directing that accounts be taken pursuant to s. 76 of the T.P. Act on the foot of the mortgage deed Ext.
11 of 1943 under s. 83 of the T.P. Act was Rs.
On 14th July, 1933, the three brothers and their mother executed a mortgage deed Ext.
3 flied Original Petition No.
Until the year 1930, it appears that numberdebts were taken by the members of this family.
2 and 3 in the suit which had been refused by the trial Court and.
The eldest of the minor sons was Ahmed Saleh Mohamed Sait, who also died before the institution of the suit, the other two being respondents 1 and 2.
There was also a direction specifically reserving for companysideration at the time of the final decree proceedings all questions relating to accounting as well as reliefs claimed under the Usurious Loans Act, No.
The validity of the decree was assailed mainly on two grounds.
Appeal from the judgment and decree dated September 19, 1958 of the Mysore High Court in Regular Appeal No.
The eldest son Ahmed Saleh Mohamed Sait became a major in or about the year 1927 and, till that time, Rahamatbai, was managing the property.
C executed by Ahmed Saleh Mohamed Sait, the two 1065 respondents in this appeal, and their mother Rahamatbai, for a sum of Rs.
C dated 14th July, 1933 was governed by s. 77 of the T.P. Act and was, companysequently, outside the purview of s. 76 of the T.P. ACt 3 that the plaintiffs were number entitled to the relief under the Act which was number applicable to this mortgage 1069 which related to property situated in the Bangalore Civil and Military Station and that, in any case, even if the provisions of the Act be applied, the transactions prior to the mortgage deed in suit companyld number be reopened and 4 that the interest on the surplus amount found due from the appellants to the respondents, if any, should have been allowed only from the date of the decree of the High Court, viz.,
10 of 1918 hereinafter referred to as the Act .
11 of 1943 in the Court of the District judge, Civil Station, Bangalore, under s. 83 of the P. Act and deposited a sum of Rs.
19th September, 1958 and number from the date of the suit, viz.,
C was Rs.
Thereafter, on 3rd November, 1943, the four plaintiffs, mentioned above, instituted the Original Suit No.
Thereafter, plaintiff No.
66,463.97 P in discharge of the mortgage, delivered the necessary documents to the mortgagors and also gave possession of the mortgaged property.
The total rent companylected by the mortgagee was Rs.
C was Rs.
At the time when inheritance opened on the death of Saleh Mohamed Sait, admittedly the family was governed by Hindu Law in the matter of succession and inheritance, so that the daughters did number acquire any right in the property left by their father.
The first two plaintiffs were Elias Saleh Mohamed Salt respondent No.
The moneys spent by the mortgagee for taxes and repairs were Rs.
CIVIL APPELLATE JURISDICTION Civil Appeal No.
One of these loans was on the basis of a usufructuary mortgage executed in favour of one J. Krishna lal but both the Courts below have held that Krishnalal was a benamidar for the defendant Khanmull, so that the various loans taken were all from Khanmull.
Khanmull, the mortgagee, accepted the amount deposit as companyrect, delivered possession of the mortgaged property and the necessary documents, and obtained payment of the amount.
It was further directed that, after the plaintiffs filed their statement by way of a similar pleading, issues arising thereon for determination between the parties will be settled and then enquiries will be held by way of evidence, if necessary, or by way of arguments of companynsel, and the suit will be proceeded with for the purposes of passing a final decree.
R. Gokhale, S. Govind Rao and K. Rajendra Chaudhuri, for the appellants.
The companyts on and incidental to this part of the decree were left to be adjudged on the result of the enquiry.
66,463.97.
Both parties appealed against this preliminary decree in the High Court of Mysore.
19 of 1943 instituted in the Court of the District Judge, Civil Station, Bangalore, by four plaintiffs.
9,178.34.
13,342.09 P in both the Courts.
B. Aggarwala and R. Gopalakrishnan, for the respondents The Judgment of the Court was delivered by Bhargava, J. This appeal arises out of Original Suit No.
4 of 1882 hereinafter referred to as the T.P Act in respect of a mortgage deed dated 14th July, 1933 Ext.
A preliminary decree in a suit for accounts cannot be said to be a mere interlocutory order.
50,000/ under s. 83 of the T.P. Act to discharge the debt under the mortgage deed Ext.
50,000/ , working out the companysideration on the basis of the amounts due under earlier loans, and adding to it the amount of cash paid at the time of execution of this mortgage deed.
440 of 1965.
C dated 14th July, 1933, but the defendant did number accept that money, With the result that the petition under s. 83 of the P. Act failed.
134 of 1953.
The plaintiffs were awarded companyts against the legal representatives of the defendant on the sum of Rs.
The position Was examined by the Privy Council in Gajambal Ramalingam and Others v. Rukn ul MulkSyedAbdul Wajid and Others 1 when the Privy Council had to determine the juris A.I.R. 1950 P.C. 64.
It is against this decree passed by the High Court that the appellants have companye up to this Court in this appeal under certificate granted by the High Court.
On 21st January, 1943, the two respondents and their sisters deposited a sum of Rs.
On the basis of these figures and after deciding various points disputed before it, the High Court passed a decree for a sum of Rs.
75,000/ .
3rd November, 1943.
That decision of the trial Court was companyfirmed by the High Court by its Full Bench judgment dated 13th February, 1951.
1,00,342.09, and the amount received in Original Petition No.
The fourth and fifth reliefs were in respect of the claim for interest 6 per cent per annum on the amount found due under the first relief, and for companyts.
One was that, in view of the unconditional tender of the mortgage money on two occasions under s. 83 of the T.P. Act, the plaintiffs were estopped from instituting the suit for accounting and the other was that the mortgage in question fell within the scope of s. 77 of the T.P. Act, so that accounting companyld number be claimed under s. 76 of the T.P. Act.
Time was granted to the appellants to make payment till 19th March, 1959.
2 , sons of Saleh Mohamed Sait who died in or about the year 1917 leaving behind his widow, Rahamatbai, three minor sons, and three daughters.
5,919/ .
1 and Mohamed Saleh Mohamed Sait respondent No.
The second and the third reliefs in the suit related to matters which are number the subject matter of this appeal in this Court and, companysequently, need number be mentioned.
That judgment has become final and that decision, which finally decided the points arising in the preliminary decree, cannot number be challenged in this Court in an appeal from the judgment at the stage of final decree.
19 of 1943 and, as mentioned earlier, the main prayer was that the defendant be directed to render an account of his administration of the mortgaged property from 14th july, 1066 1933 to 12th March, 1943, and to pay to the plaintiffs the amount that may be found due to the plaintiffs after adjusting interest that may be found due to the defendant at a reasonable rate and after deducting amounts number paid and interest charged from out of the principal of Rs.
In pursuance of the direction made in that order, parties gave an agreed calculation indicating that the principal amount advanced as the original loan under Ext.
It was further laid down that the appellants were liable under the decree to the extent of the assets left by the deceased defendant Khanmull which might be in their hands and to the extent of the assets of the joint family, because the original defendant had died.
So far as the first point is companycerned, it does number arise out of the appellate judgment passed by the High Court in the appeal brought up before it against the final decree in the suit.
66,463 15 6 to be paid over to the mortgagee.
