Subodh Chandra Jain v. Chaman Ara Begum — 1990 DIGILAW 394 (ALL)

JUDGMENT S.N. Sahay, J. - These two appeals preferred against the same appellate decree have been heard together and are being disposed of by a common judgment. 2. Smt. Chaman Ara Begum executed a mortgage in favour of Subodh Chand Jain in respect of the house in suit on January 23, 1970 for a consideration of Rs. 2,000/ only. Hafiz Murtuza Husain, husband of the mortgagor, also joined in the execution of the mortgage. The mortgagors deposited a sum of Rs. 2,000/ representing the mortgage money in Court of Musif City, Bahraich on November 8, 1974 under Section 83, Transfer of Property Act, 1882. Notice of the deposit was given to the mortgagee, but he refused to withdraw the money deposited in his favour. Hence the suit giving rise to these appeals was instituted by the mortgagors for redemption of the mortgage and for the recovery of Rs. 2036.60 p. as smesne profits from November 9, 1974 to July, 1976 and also for pendente lite and future mesne profits and interest. The suit was resisted by the Mortgagee on a number of grounds. It was, interalia, pleaded that there was no valid deposit of the mortgage money in court, and therefore, the mortgagors were not entitled to mesne profits. The suit was tried by the learned Civil Judge, Bahraich. He passed a decree on August 26, 1977 in favour of the mortgagors for redemption of the mortgage and possession over the house in suit and also mesne profits at the rate of Rs. 50/ per month from November 9, 1974 to July 19, 1976 and also pendentelite and mesne profits. The mortgagee preferred an appeal against the decree of the trial court. The appeal was heard by the learned District Judge, Bahraich and the same was partly allowed on May 19, 1978. The decree of the trial court was modified to the extent that the suit for recovery of mesne profits for the period from November 9, 1974 to July 19, 1976 and pendentelite and future mesne profits was dismissed. The costs in the appellate court were also made easy. 3. The decree of the trial court was modified to the extent that the suit for recovery of mesne profits for the period from November 9, 1974 to July 19, 1976 and pendentelite and future mesne profits was dismissed. The costs in the appellate court were also made easy. 3. It has been urged on behalf of the mortgagors that the learned District Judge has erroneously held that the deposit made in Court by the mortgagors under Section 83, is not a valid deposit by reason of the fact that the mortgagors did not take steps for the appointment of guardianadlitem of the mortgagee who was a minor and no guardianadlitem was appointed for him by the Court. On the other hand, the contention of the mortgagee is that after coming to the conclusion that the deposit made under Section 83, cannot be regarded to be a valid deposit, the learned District Judge should have dismissed the whole suit. 4. Section 83, Transfer of Property Act, confers right on a mortgagor to deposit in court the amount remaining due on the mortgage to the account of the mortgagee. The deposit may be made at any time after the principal money payable in respect of the mortgage has become due and before a suit for redemption of the mortgaged property is barred. The deposit may also be made by any other person entitled to institute the suit for redemption. When deposit is so made, it is the duty of the Court under Section 83 to cause written notice of the deposit to be served on the mortgagee. If mortgagee is a minor and there is no legal curator of his property, then in view of the provisions of Section 103, the mortgagor or the person making the deposit has to make an application to the court to appoint a guardianadlitem for the purpose of serving or receiving the notice or taking the deposit out of Court and for the performance of all consequential acts, which could or ought to be done by the mortgagee. The provisions of Order 32, CPC would apply to such application and to the parties thereto and to the guardian appointed thereunder. 5. The provisions of Order 32, CPC would apply to such application and to the parties thereto and to the guardian appointed thereunder. 5. It was held in Sheo Saran Chaudhari v. Ram Lagan Das, AIR 1932 Allahabad, 355, on which the learned District Judge has also placed reliance, that in a case where the mortgagor deposits the full amount under Section 83, but fails to take steps to have a guardianadlitem appointed by the court, the minor mortgagee is not bound by the proceedings eventhough a notice of deposit was actually issued to him under the guardianship of his father. 6. Similar view has also been taken in latter decisions. In Khannu Mal v. Indar Pal Singh, AIR 1923, Allahabad 183, it was held that where the mortgagee happens to be a person incapable of entering into a contract, Section 103 lays down the mode in which the mortgagor has to act in order to enable the mortgagee to take away the deposit made in Court. According to the provisions of that Section, in the case of such a mortgagee, the mortgagor has to apply to the court to have a guardian appointed in the manner provided in Order 32 CPC. Under that order, the Court may appoint a guardian for the suit upon application made by the plaintiff or by the guardian. It was further held that in the case of the deposit made under Section 83, interest shall cease from the date on which the mortgagor has done all that has to be done by him to enable the mortgagee to take the amount out of Court. 7. Again, in Gokul Kalwar v. Chandra Shekhar, AIR 1926 Aliihabad 665, it was held that when at the time the deposit was made one of the mortgagees was a minor and when the plaintiffs lodged the money in court, there was no properly constituted guardianadlitem of the mortgagee, the deposit cannot be considered to be proper deposit so as to stop the running of interest and the plaintiffs were not entitled to mesne profits. 8. It may be remembered that the provisions of Order 32, Rules 3 and 4, CPC which are applicable to the proceedings for appointment of guardianadlitem for the minor, under Section 103, Transfer of Property Act, indicate that it is incumbent on the Court to appoint a proper person to be guardianadlitem for the minor. 8. It may be remembered that the provisions of Order 32, Rules 3 and 4, CPC which are applicable to the proceedings for appointment of guardianadlitem for the minor, under Section 103, Transfer of Property Act, indicate that it is incumbent on the Court to appoint a proper person to be guardianadlitem for the minor. The Court must be satisfied that the proposed guardian has no interest in the matters in controversy in the proceedings adverse to that of the minor and that he is a fit person to be so appointed. No order for appointment of a guardiancan be made on any application except upon notice to any guardian of the minor appointed or declared by an authority competent in that behalf or where there is no such guardian, upon notice to the father or the mother or other natural guardian of the minor or where there is no father, mother or other guardian, to the person in whose care, the minor is and after hearing any objection which may be urged on behalf of any person served with notice. 9. The deposit made by a mortgagor under Section 83 has serious consequences in respect of the right of the mortgagee. It is open to the mortgagee on receipt of notice of deposit to contest the right of the mortgagor to make the deposit or to show that the conditions laid down in Section 83 for making the deposit have not been complied with. It is also open to the mortgagee to express his willingness to accept the money in deposition full discharge of the amount due on the mortgage and to apply for and receive the money. In such a case the mortgagee is under an obligation to deliver all the documents in his possession or power relating to the mortgaged property as also possession of the mortgaged property to the mortgagor. Upon a valid deposit being made in court, interest on the principal money due on the mortgage also ceases to run from the date of deposit. Therefore, it is essential that if the mortgagee is a minor he should be properly represented and his interest should be fully protected in the proceedings under Section 83. Upon a valid deposit being made in court, interest on the principal money due on the mortgage also ceases to run from the date of deposit. Therefore, it is essential that if the mortgagee is a minor he should be properly represented and his interest should be fully protected in the proceedings under Section 83. The insistence on the appointment of a fit and proper person to be guardianadlitem for the minor, in such proceedings, on the application of the mortgagor cannot be regarded as an empty formality. I respectfully agree with the view expressed in the cases referred to above. In my opinion, the provisions of Section 103, regarding appointment of guardianadlitem, must be complied with by the mortgagor in every case in which the mortgagee is a minor. If this is not done, the mortgagor will not be entitled to avail of the consequential benefits referred to in Sections 83 and 84 or to claim mesne profits in a subsequent suit. 10. It is contended on behalf of the mortgagee that the notice directed to be sent to the father of the minor mortgagee, should be held to be sufficient compliance with the provisions of Section 103, Transfer of Property Act. This contention cannot be accepted as correct. It has been seen that the appointment of guardianadlitem is made by the Court after serving notice on the father, mother or other natural guardian of the minor and after hearing their objection. It is quite conceivable that the interest of the father, mother or other natural guardian, may be adverse to the minor in relation to the matter in controversy in the particular proceeding before the court and he or she may not be a fit and proper person to act as guardian of the minor in that proceeding. Relationship is not conclusive and, therefore, it is not possible to hold that if a notice has been sent to the father of the minor, it will be a sufficient compliance with the provisions of Section 103. The fact that the father acted as guardian for the minor at the time of the execution of the mortgage also cannot be accepted as valid for the reason that the interest of the father may subsequently become adverse. The fact that the father acted as guardian for the minor at the time of the execution of the mortgage also cannot be accepted as valid for the reason that the interest of the father may subsequently become adverse. In the view that I have taken, I find that there was no error on the part of the learned District Judge in disallowing mesne profits to the mortgagors in the suit. 11. It has not been shown on behalf of the mortgagee that the suit for redemption was barred or was otherwise not maintainable. The suit for redemption cannot, therefore, be dismissed on the ground that the deposit made by the mortgagors under Section 83, is not a proper deposit. The money has been deposited by the mortgagors to the credit of the mortgagee and it is open to him to take out the same in satisfaction of the mortgage debt. There is no merit in the contention of the mortgagee also. 12. For the above reasons both the appeals have no force and are accordingly, dismissed. The parties shall bear their own costs of these appeals. Appeals dismissed.