1. This is a plaiU270496ntiffs appeal arising out of a suit for redemption of a simple mortgage dated 22nd January 1922, executed by the plaintiffs' predecessor in favour of Mitangdhwaj Prasad Singh, the deceased father of the original defendants. It is not necessary to give the particulars of this mortgage, because the only point in dispute was whether in consequence of a deposit having been made under Section 83, T.P. Act, interest ceased to run from that date.
2. On 18th July 1923, the original mortgagee, Mitangdhwaj Prasad Singh, was dead and he had left two sons and a, widow. On that date the plaintiffs deposited an amount which was admittedly sufficient to cover the principal and interest up to that date to the credit of the two sons of Mitangdhwaj Prasad Singh who were both described as minors. On that date the plaintiffs also filed an application to the Court, praying that the mother of the minors should be appointed their guardian ad litem and this application was supported by an affidavit. Notices were sent to the minors and their mother. The latter appeared in Court and filed a petition saying that the elder son was not a minor but a major, and that she could not, therefore, act as his guardian. The plaintiffs did not accept her statement, but requested that the Court should enquire into that matter, and also stated that if the Court found that the elder son was of age the plaintiffs had no objection to treating him as such. The Court refused to go into this disputed question of minority and ordered that the application should be 'filed'. The corresponding order on the order-sheet shows that it was consigned to the record room.
3. The plaintiffs then instituted the present suit for redemption and claimed the benefit of the deposit of July 1923. On behalf of defendant 1, Shirdhwaj Prasad Singh, it was pleaded that he was of age on the date of the previous deposit and had not been represented in those proceedings.
4. It was further pleaded that, by virtue of a family custom, the rule of primogeniture prevailed, and it was only the eldest son who was entitled to the estate of his deceased father and that therefore, the deposit to the credit of both the sons was defective.
5. The learned Subordinate Judge has found that defendant 1 was in fact a minor on the date of the deposit. He has, however, found that there is a custom in the family under which it is only the eldest son who succeeds to the estate. The learned Subordinate Judge has, however, thought that the Court rightly refused, to go into the question of minority on the previous occasion, and that, therefore, the plaintiffs had not done all that they were bound to do under Section 83, so as to entitle them to the benefit of the deposit. We might point out that it was the same learned Sub-Judge who had ordered the previous application to be filed.
6. In our opinion he was quite wrong on the former occasion in declining to decide the question of minority. Section 103, T.P. Act, clearly provides that where the party on whom notice is to be served and by whom deposit has to be accepted, or taken out of Court, happens to be a person incompetent to contract, the provisions of Ch. 31, Civil P.C. (corresponding to Order 32 of the new Code) shall apply. At the time when this deposit was made the new Code was in force. Order 32, Rule 3 provides that where the defendant is a minor the Court on being satisfied of the factum of his minority, shall appoint the proper person to be guardian for the suit for such minor. It is obvious that if the point is in dispute the Court has to be satisfied of the fact of minority, and this cannot happen unless the Court enquires into the matter: Rukmini v. Viraswami A.I.R. 1924 Mad. 813.
7. The Court below has come to the conclusion that, inasmuch as no guardian ad litem was actually appointed on the previous occasion by an order of the Court, interest did not cease to run. Section 84 requires that the mortgagor should have done all that has to be done by him to enable the mortgagee to take such amount out of Court. The actual appointment of a guardian ad litem is obviously an act done by the Court and not an act which can be done by the mortgagor. Section 83 provides for the issue of a written 'notice of the deposit' to be served on the mortgagee after such deposit has been made. The notice referred to in Section 103 is obviously notice of such deposit as provided for by Section 83. It would, therefore, seem prima facie that the procedure mentioned in Section 103 is consequent upon the deposit having made and not precedent to an intention to make the deposit. On this point, however, there was a difference of opinion between two learned Judges of this Court in the case of Kannumal v. Indarpal Singh A.I.R. 1922 All. 147. Lindsay, J., following the case of Pandurang v. Mahadaji  27 Bom. 23, held that
interest must go on running even after the date of deposit and can only stop when the appointment of a guardian has been ordered by the Court and the full money is paid in.
8. On the other hand, Stuart, J., came to a contrary conclusion. Although there is much in the judgment of Mr. Justice Stuart which appeals to us, it cannot be doubted that the preponderance of authority is in favour of the other view which was accepted by another Bench when that case went up in Letters Patent appeal: Khannumal v. Indarpal Singh A.I.R. 1923 All. 183. A stronger case is that of Gokul Kalwar v. Chandarsekhar : AIR1926All665 , where under the terms of the mortgage the tender had to be made in the month of Jeth, the deposit was made in that month, but the order appointing the guardian could not be passed until after the expiry of that period. It was then held that the deposit was defective. In the present case, however, the order of the Court declining to go into the question of minority and directing that the application should be consigned to the record room left nothing which could be done by the mortgagor. It might, therefore, perhaps be possible to distinguish the present case from the reported cases cited above, but it is not necessary to decide this point finally because in our opinion the appeal must fail on another ground.
9. It has been held by their Lordships of the Privy Council in the case of Garuradhwaja Prasad v. Superundhwaja Prasad  23 All. 37, that, according to the family custom, a rule of primogeniture prevails in the family of Garuradhwaja Prasad, who was alleged by the defendants to be the father of the deceased mortgagee, Mitangdhwaj Prasad Singh. In the Court below it was not disputed that the deceased mortgagee was the son of Garuradhwaja Prasad. Under these circumstances the finding of the Court below that such a custom prevailed must be accepted. The learned advocate for the appellants has brought to our notice the fact that the question of the parentage of Mitangdhwaj Prasad is in dispute as against third parties and is a matter in an appeal pending in this Court. That circumstance, however, cannot be taken into account in this suit.
10. It is, therefore, clear that the deposit was made to the credit of Sirdhwaj Prasad Singh, who was the sole heir of the deceased mortgagee, as well as of his younger brother who was not a co-mortgagee and was not entitled to any share is the mortgage money. Under Section 83, the deposit has to be made to the credit of the mortgagee or mortgagees. Such a deposit would obviously be invalid if the mortgagor associates with the real mortgagee some third person who is not entitled to any share in the mortgage money. Such an association would make it impossible for the real mortgagee to take out the money without the consent of this other person. Section 83 provides a special privilege to a mortgagor and in order to claim its benefit, the mortgagor must come strictly within the provisions of that section. This was the view expressed by this Court in the case of Debendra Mohan Roy v. Sona Kunwar  26 All. 291. A similar view has been expressed by the Madras High Court in the case of Madhavi Amma v. Kunhi Pathumma  23 Mad. 510. The Court below has found that the mortgagors acted in good faith in assuming that both the sons were heirs to the deceased mortgagees, but the question of good faith cannot arise under Section 83, when it is the duty of the mortgagor to deposit the amount to the credit of the real mortgagees. Once such questions are allowed to be raised considerable difficulties will undoubtedly arise. No doubt, in an earlier case, Ram Sumran v. Sahebzada Bijai Partab Narain Singh  A.W.N. 328, another Bench ruled that deposit made to the credit jointly of two sets of claimants was a good deposit under the section. In view of more recent pronouncements that case appears to be of doubtful authority. It can also be distinguished in the present case on the ground that the younger brother was not a claimant to any share in the mortgage money. As a matter of fact in the Court below it was conceded by his guardian that defendant 1 alone succeeded to the entire estate. Under these circumstances we are of opinion that this appeal must fail and it is hereby dismissed with costs.