Patna High CourtMunshi Singh And Anr. vs Narain Prasad Singh And Ors. on 9 November, 1955Equivalent citations: AIR1956PAT201, AIR 1956 PATNA 201JUDGMENT
 

 Raj Kishore Prasad, J.1. This is an appeal by the plaintiffs from a suit brought by them for redemption of a usufructuary mortgage bond dated 7/9/28 executed by the mortgagers, who were defendants second party to the suit, in favour of the mortgagee, who was defendant first party, for a sum of Rs. 1100. The plaintiffs are purchasers of the equity of redemption from the mortgagors defendants second party by virtue of a registered document dated 21-5-45.2. The plaintiffs' suit has been decreed by both the Courts below, but as far as the question of 'mesne' profits is concerned, the first Court allowed 'mesne' profits from the date of the deposit of the mortgage money by the plaintiffs underSection 83, T. P. Act. The lower appellate Court, however, has allowed it not from the date of the deposit, but from the nest year, on the ground that the notice of the deposit was served on the mortgagee not in Baisakh, but in Jeth of the year of deposit.3. The plaintiffs' case was that they tender-ed the money to the mortgagee, but he did not accept it, and, as such, they deposited the amount underSection 83, T. P. Act, on 28th 'Baisakh 1352 Fs., corresponding to 25-5-1945. A notice of this deposit was served on the mortgagee defendant in the month of Jeth.The plaintiffs, therefore, brought the suit for redemption, and, also claimed mesne profits from the date of the deposit, on the ground that the possession of the mortgagee since the date of the deposit had become that of a trespasser, because in spite of the amount having been deposited, the mortgagee refused to take out the money and give up possession to the plaintiffs and, therefore, they were entitled to 'mesne' profits since the date of the deposit.4. The suit was contested by the mortgagee defendant only. His defence, 'inter alia', was that the plaintiffs were not entitled to any mesne profits.5. The learned Munsif decreed the suit for redemption, and directed that as since the date of the deposit the mortgagee is a trespasser, he is liable to pay mesne profits to the plaintiffs, which would be determined in subsequent, proceedings. The defendant mortgagee appealed to the Court of appeal below, and one of the points taken in the appeal was that the plaintiffs were not entitled to any mesne profits from the date of the deposit.The learned Additional District Judge affirmed the decision of the first Court, but modified it to this extent only that the plaintiffs were held entitled to recover mesne profits not from the date of the deposit, that is 25-5-45, but from 1st Jeth 1353 Fs., corresponding to 17-5-46. Against this judgment the plaintiffs have come up in, appeal.6. There is no question now as to the plaintiffs' right to redeem, or the amount to be paid for redemption. The only question is whether the plaintiffs are entitled to mesne profits claimed by them from the date of the deposit, or from the next year.7. Mr. Harinandan Singh, appearing for the appellants, contends that the lower appellate Court has erred in law in disallowing mesne profits to his clients from the date of the deposit, inasmuch as there was no contract for giving any notice to the mortgagee of the deposit of the amount underSection 83, Transfer of Property Act, within Baisakh, the time fixed under the document for payment of the mortgage money.The mortgage deed provides that the mortgagee shall repay the principal debt covered by the bond on the full-moon day of the month of Baisakh 1342 Fs., to the creditor, and if he fails to repay the amount on the due date, the bond shall, till the date of repayment of the principal debt, remain intact precisely on the same terms without executing any fresh document. He, therefore, contends that what the document provides is that the mortgage money is to be paid on the full-moon day of the month of Baisakh 1342 Fs., and if the amount is not paid on that day then, according to the terms of the document, the amount will have to be paid on the full-moon day of the month of Baisakh of each succeeding year.He, therefore, contends that on the document itself there is no provision, and a contract cannot be implied, or inferred from the document itself, to the effect that if notice of the deposit is not given within Baisakh of the year of deposit, the deposit would be invalid, and the mortgagee would be entitled to resist the claim of his clients for possession.8. Mr. Ramdeo Singh, appearing for the mortgagee respondent, contends that on a correct interpretation of the document what is to be found is that the notice of the deposit of the money underSection 83, Transfer of Property Act, has to be served on the mortgagee within Baisakh, or by the end of Baisakh of the year, in which the deposit is made, in order to enable the mortgagee to make up his mind, whether he would take out the money and give up possession or not, and, as such, when admittedly in the present case no notice was served on his client within Baisakh, but it was served in the month of Jeth that year, his client was perfectly justified in refusing to accept the money and give up possession of the land, in accordance with the terms of the document.In support of his contention he relies on a case in --'Dwarka Prasad v. Sheoambar Koeri', 15 Ind Cas 592 (All) (A). This case, however, has no application to the present case. In this case it was found that the contract of mortgage contained a very stringent provision, which was nothing more or less than that the mortgagee will not be bound to accept payment unless such payment was made or tendered on one particular day of the year, that is the last day of the month of Jeth. This, his Lordship Piggott J., observed, was not an unusual covenant in mortgages of this sort, and he found that 'it was a covenant as to notice', and a very stringent one.In those circumstances his Lordship held in that particular case, that when the usufructuary mortgage bond contained a covenant that the mortgagor would redeem the mortgage on the last day of Jeth of the year 1317 Fs,, corresponding to 22-6-1910, and, the mortgagor deposited the mortgage money on 17-6-1910, and the notice of the deposit could not be issued from the Court before 27-6-1910, and it was served on the mortgagee admittedly after 22-6-1910, the mortgagee was entitled to a notice of the deposit either on or before 22-6-1910, and that under the circumstances he was entitled to maintain his possession and was not liable for damages.This case was considered by a Division Bench of the Allahabad High Court in --'Jiva Ram v. Thakurain Khem Koer', AIR 1923 All 24 (B). Their Lordships Stuait and Sulaiman JJ. distinguished this case on the ground that the mortgage deed in this case did contain provisions which showed that there was a contract of notice of such a nature as to bring the case within the proviso toSection 84of the Act, and their Lordships found that the wordings of the two documents in the two cases were quite different.In the latter case their Lordships held that the document before them did not contain any express or implied contract entitling the mortgagee to notice before payment, and, therefore, they held that the case did not fall under the proviso toSection 84, Transfer of Property Act.9.Section 83, Transfer of Property Act Provides that a mortgagor, after the mortgage money has become due, and before his right to redeem has become barred, may deposit the amount due on the mortgage underSection 83. The second part ofSection 83provides that upon such a deposit the Court shall cause a written notice of the deposit to be served on the mortgagee, and thereafter the mortgagee may, if he so chooses, take steps, after following the procedurelaid down inSection 83itself, to accept the money so deposited in full discharge of his debt, and thereafter give up possession.Section 84of the Act provides that when the mortgagor or such other person, as mentioned inSection 83, has deposited the amount in Court underSection 83, and the notice required bySection 83has been served on the mortgagee, interest on the principal amount shall cease from the date of the deposit as soon as all that has to be done by the mortgagor, or such other person as_aforesaid, has been done in order to enable the mortgagee to take such amount out of Court.On a plain reading ofSection 83itself it is clear that although it provides for a notice of the deposit of the money to the mortgagee, it does not either by implication, or expressly provide that such a notice must be served on the mortgagee within the time stipulated in the mortgage deed for the deposit of the mortgage money  in
order  to  make the deposit valid.Where in a usufructuary mortgage deed there is a provision that the mortgage money should be deposited whenever the mortgagor desires to deposit it only on the last day of Baisakh every year, and there exists no contract in the deed for a notice, by the mortgagor to the mortgagee, before the making of the deposit, as is contemplated by the last paragraph ofSection 84, nor there is a provision in the deed as to when the notice of the deposit, as contemplated by the second paragraph ofSection 83, should be given, and the notice of the deposit on the last day of Baisakh being impossible, as that is the only date when the deposit is made and has to be made in terms of the contract, if a notice of the deposit underSection 83is served within Jeth of the year, before the commencement of the agricultural season on the 1st of Asarh of the year it is sufficient, and it does not make the deposit invalid. I am in respectful agreement with the observations of Piggott J. in 15 Ind Cas 592 (All) (A), to the following effect :"It proceeds on the assumption that there will be no standing crops, on the land on the last day of Jeth, and that the mortgagee will not require formal notice of the mortgagor's intention to redeem provided payment is made or tendered on that particular day. Of course, if the mortgagee chooses to go out of his way to bring the land under cultivation during the month of Jeth, he takes the risk of his own covenant operating unfavourably to him, but as a general rule cultivation would not have commenced in that month.The effect of the covenant is really this, that if the mortgagor intimates his intention to redeem, or makes a tender of the money to the mortgagee at any time before the last day of Jeth in any given year, the mortgagee is entitled to notice until the last day of Jeth next following, but if on that date he does not accept the lender and deliver up possession, he makes this refusal at his own risk and subjects himself to the provisions of those sections (i.e.Sections 83,84and76 (i)) on which the appellant now relies in this case,"10. In this very case his Lordship observed that on the terms of the covenant between the parties "there was only one possible case in which the mortgagees would be entitled to no notice at all, and that would be in the case of a payment made or tendered precisely on the last day of Jeth". In any other case, the effect of the contract between the parties is to entitle the mortgagees to notice from the date on which the payment was offered to them until the last day of Jeth next following.In my opinion, the principle underlying such a notice is that the notice must be given to the mortgagee before the commencement of the cultivation season, which ordinarily begins in Asarh every year. In the present case there is no evidence to show that in the Champaran district cultivation season begins in Jeth, or that the lands in suit had been cultivated, and crops had been sown, or grown on the disputed land in Jeth, when the notice was served.According to my reading of the document, the reason why the full-moon day of Baisakh every year was chosen for the day of deposit, is that on that particular day the money would be deposited, and the mortgagee will get one full month of Jeth to decide for himself on receipt of the notice of the deposit within Jeth whether he would give up possession, or continue in possession, ignoring the deposit in Court.The month of Jeth is a fallow season, and actual cultivation begins only in the month of Asarh every year, and, therefore, if the notice has been served in the month of Jeth, it cannot be said that the deposit was invalid. When the document itself provides that the payment has to be made only on the full-moon day of the month of 'Baisakh' every year, it is obvious that the notice could not possibly go in the month of Baisakh, because that is the last day of the month of Baisakh, and it is impossible to serve the notice on the mortgagee on the very day of the deposit.The parties, therefore, clearly contemplated that notice of the deposit, in the case of refusal of the tender of the money by the mortgagor, or his transferees, or his assignees, should go in the next month, that is, in the month of Jeth. For these reasons, I hold that the judgment of the lower appellate Court is clearly erroneous in law, and, therefore, it must be reversed.11. Both parties cited several other cases also, such as, --'Ahmad Beg v. Dharman Rai', AIR 1921 All 71 (2) (C), and -- 'Sant Ram v. Jar-bhandan', AIR 1922 Oudh 17 (D), but, in my opinion, these cases have absolutely no application to the present case, and, therefore, it is not necessary to deal with them.12. In the result,  the appeal   succeeds,   and the  judgment and  decree of  the  Court below is
modified   to  this extent only that  the plaintiffs . would   be entitled  to recover  mesne profits from the date of the deposit, that is, 25-5-45 as directed by the first Court, and in that respect the decree of  the trial   Court  is restored.     In the   circum stances  of   this case,   there will   be no order for costs.