L.H. Jenkins, C.J.
1. The plaintiff is the mortgagor and the defendant the mortgagee of the plaint property. The mortgage deed is dated the 25th October, 1893, and it is thereby provided that the mortgagor is not entitled to redeem after the 25th October, 1899, without paying interest to the 25th October, 1900.
2. On the 12th October, 1899, the plaintiff deposited in Court the Rs. 2,000 then due on the mortgage, but the mortgagee being a minor the appointment Of a guardian ad litem for the purpose of receiving notice of the deposit was necessary. Accordingly-notice was issued to the minor mortgagee's mother, Sundrabai, with a view to obtaining-her consent to be appointed guardian ad totem of her son, and it was made returnable on the 18th of November. On that day Sundrabai appeared and was 'appointed guardian ad litem. Then a notice was issued to Sundrabai calling on her to show cause why she should not receive the deposited money, and this was made returnable on the 9bh of December. When the matter came on, she refused to accept the money in full discharge of the amount due on the mortgage, inasmuch as it did not include interest subsequent to 25th October, 1899. Thereupon the deposited amount was returned to the plaintiff and this suit was instituted.
3. The first Court held the deposit under Section 83 of the Transfer of Property Act insufficient, and therefore decreed redemption on payment of Rs. 2,171-6-10, ordering that the defendant should recover his costs from the plaintiff. The District Judge on appeal, however, held that the mortgagor had done all that had to be done by him to enable the mortgagee to take the money out of Court, and ordered the plaintiff to pay Rs. 2,000 into Court within six months and redeem the property.
4. The District Judge has applied the right test; the only question is, whether it has been properly applied. Now it must be noted, that, though, Section 84 provides that interest shall cease from the date of the tender, it does not provide that it Shall cease from the date of the deposit; in the case of a deposit it only ceases as soon as the mortgagor has done all that has to be done by him to enable the mortgagee to take the amount out of Court, that is to say, he must do something more than make a deposit. We have then to see what additional duty is thus cast on a mortgagor, when the mortgagee is an infant.
5. Section 103, dealing with the case of a person incompetent to contract, provides that where there is no curator of such person's property, and it is requisite or desirable in the interest of such person that a notice should be served, or a tender or deposit made, application may be made to the Court to appoint a guardian ad litem for the purpose of serving or receiving service of such notice, or making or accepting such tender, or making or taking out of Court such deposit, and for the performance of all consequential acts, which could or ought to be done by such person, if he were competent to contract. I pause here for a moment to notice the words requisite or desirable in the interests of such person, as it has been suggested that they obscure the meaning of the section. On a fuller consideration I am of opinion that this is not so, and that they are designedly used in reference to distinct events. I will make my meaning plainer by an illustration. If where the mortgagee is a minor it is determined by the mortgagor to proceed under Sections 83 and 84, then it is requisite that a notice should be served; if in the case of an infant mortgagor those entrusted with the care of his affairs consider the mortgage money should be tendered or paid, then it may be desirable in the interests of the minor that this should be done. Here it was requisite that the notice should be served, for the Act makes the service imperative, and so a guardian ad litem had to be appointed both to receive service of the notice and to take the deposit out of Court.
6. Now for the mortgagor it has been urged by Mr. Coyaji, who has argued the case, with his usual clearness and care, that his client had performed his part when on the 12th October he applied for a guardian: that the rest lay with the Court. In support of this view he relies on the frame of Section 83, from which it is apparent, he argues, that when the mortgagor has made his deposit, the service of notice is a duty cast on the Court; and yet he concedes that it is manifest from the terms of Section 84 that mere deposit does not result in a cessation of interest.
7. It is desirable to start from some sure basis, and that which suggests itself to me as pertinent to this enquiry is a correct appreciation of the position of a mortgagee. That position in relation to a tender is thus described by Lord Macnaghten in Bank of New South Wales v. O'Connor (1889) 14 A.C. 278: 'A mortgagee is entitled to his principal and interest and the ordinary charges and expenses connected with his security. He is also entitled as of right to the costs properly incident to an action for foreclosure or redemption, though he may forfeit those costs by misconduct, and may even have to pay the costs of such an action in a case where he has acted vexatiously or unreasonably.' What we then have to see is how far this position is in died by Sections 83 and 84 of the Transfer of Property Act, bearing in mind that so far as the cessation interest on tender goes, the provision it but an expression of the general law, while the direction for its cessation in the case of a deposit is an adaptation of an early regulation.
8. The sole question appears to me to be, whether it was not incumbent on the mortgagor, in the circumstances of this case, not only to apply for a guardian ad litem but also to see that one was appointed. It is clear that for the purpose of a tender Under this chapter of the Transfer of Property Act it would be incumbent on a mortgagor to procure the appointment of a guardian ad litem: still such an appointment had been made there was no one to whom under the Act a tender on behalf of the minor could be made. Does not this furnish us with soma clue as to the measure of the mortgagor's duty for the purpose of a deposit? I think it does, though I concede that the analogy is not perfect. Until a guardian ad litem has been appointed, all has not been done to enable the minor mortgagee so take the money out of Court. Something more remains to be done-the appointment of a guardian ad litem. Can the mortgagor claim that he has completely performed his part when he has made his application? Suppose, for example, that the guardian proposed by the mortgagor were to refuse to act, would nothing remain to be done by the mortgagor? Surely it would be incumbent on him to propose some other guardian, because it is his duty, as it would be under Section 31 of the Code of Civil Procedure, to see that a, guardian ad litem is actually appointed, for until then there is no one on whom the requisite notice can be served, or authorized to take the money out of Court. It is true that the language of the Legislature is not specific on this point, but any other view right operate hardly on those, who from personal incapacity cannot protect themselves, whereas a construction that would impose on the mortgagor the duty of seeing that a guardian is appointed involves no practical detriment to him if he acts with prudence. Thus it was open, to the mortgagor in this case to have moved with sufficient promptness to secure that a guardian should have been appointed in time. I am even inclined to think that he might have made his application for a guardian before depositing his money, for the Act does not dictate any order of sequence, and it is obvious that in the case of an infant mortgagor the application for a guardian must precede the deposit. The whole trouble in this case arises from the fact that the notice in reference to the appointment of a guardian was made returnable at so late a date as the 18th of November. It is much to be regretted that so distant a date should have been fixed, and I think the Courts should strive to dispose of matters of this kind with greater promptness than has been shown in this case.
9. The balance of convenience appears to me to favour the view that the mortgagor had not done all that had to be done by him until he procured the appointment of a guardian ad litem, and where language is not precise, it is permissible to attribute that effect to it which best accords with convenience and justice, for an argument drawn from inconvenience is forcible in law. There is certainly enough of doubt in the language of the Act, to permit of the application of this principle. In coming to this conclusion I have not overlooked the arguments based on Section 102, but they are, in my opinion, outbalanced by the considerations which have led me to the result I have expressed.
10. Under these circumstances the decree of the District Judge must be reversed and a decree passed for redemption on payment of additional sums of Rs. 36711-11 and Rs. 223-19, being the amount of oostb together with interest on this latter amount at the rate of 9 per cent, until payment. Respondent to pay costs throughout.