Grimwood Mears, C.J. and Pramada Charan Banerji, J.
1. This appeal, under the Letters Patent, has been brought in consequence of a difference of opinion, between two learned Judges of this Court. The suit was instituted by the plaintiffs to recover money due upon their own mortgage and to redeem an earlier mortgage. The controversy before us relates to the claim for redemption of the earlier mortgage. The mortgage in favour of the plaintiffs was made on the 7th of September, 1913, and it provided that the mortgagee should withhold, out of the consideration for the mortgage, Rs. 2,425 payable upon an earlier mortgage of 1910. On the 24th of September, 1913, the present plaintiffs made an application to the court under Section 83 of the Transfer of Property Act, and offered to deposit Rs. 2,425 mentioned above as the amount due to the prior mortgagees. The actual deposit was made the following day. Two of the mortgagees happened to be minors, and an application was made to appoint a guardian ad litem to the minors. Notice could not be served and various steps were taken and the matter was prolonged till the 15th of May, 1914, when the father of one of the minors was appointed his guardian ad litem. The mortgagees refused to withdraw the money deposited, on the ground that it was not sufficient to discharge the mortgage. After this the plaintiffs did nothing until they instituted the present suit in 1919.
2. The question which was raised in that suit was whether interest should have ceased from the date of the deposit on the 25th of September, 1913. On this point the lower courts differed in opinion. The lower appellate court held that additional interest was payable and interest did not cease from the date of the deposit. Upon second appeal to this Court the learned Judges, before whom the case came (Lindsay and Stuart, JJ.), differed in opinion; the former held that the view taken by the court below was correct.
3. We have considered the matter and we agree with the view taken by Mr. Justice Lindsay. Section 84 provides that, in the case of a deposit made under Section 83, interest shall cease from the day 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. Where the mortgagee is a person who is unable to draw the money out of court, it is necessary that a guardian ad litem should be appointed and, therefore, unless such a guardian was appointed, it cannot be said that the mortgagor had done all that was necessary for him to enable the mortgagee to draw the money. Where the mortgagee happens to be a person incapable of entering into a contract, Section 108 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 for in chapter XXXI of the Code of Civil Procedure, which now corresponds to Order XXXII of the present Code of Civil Procedure. Under that order the court may appoint a guardian for the suit upon application made by the plaintiff or by the guardian. In a case like the one before us it was the duty of the present plaintiffs, who stood in the shoes of the mortgagors, to apply to the court to have a guardian appointed, inasmuch as no one could withdraw the deposit on behalf of the minors unless there was a guardian appointed by the court. It seems to us that the mere fact of making an application would not enable any one to withdraw the money on behalf of the minors unless a person was appointed guardian ad litem by the court. It was, therefore, incumbent on the mortgagor, or his representative, to see that a proper guardian was appointed by the court. It seems to us that Section 103 was intended to provide for preliminary proceedings to be adopted by a mortgagor before making a tender or a deposit, and it could not have been the intention of the section that the mere making of an application would be sufficient, but that there should be a person appointed by the court to whom a tender could be made, or by whom a deposit could be taken out of court.
4. The question was thoroughly considered by the Bombay High Court in the case of Pandurang Babu Parab v. Mahadaji Moreshwar Gohhale (1902) I.L.R. 27 Bom. 23 and we agree with much of what was said by the learned Chief Justice in that case. Mr. Justice Stuart, in his dissentient judgment, refers to the fact that, in some cases, considerable inconvenience might arise by reason of a proposed guardian improperly refusing to act as guardian. If such a ease arises, it will be in the power of the court to appoint an officer of the court as guardian ad litem with effect from the date on which the proposed guardian improperly refused to act on behalf of the minor, and in that way the inconvenience, which repeated refusals by proposed guardians might cause, may satisfactorily be remedied. When a guardian has boon appointed by the court, it should be open to the person making a deposit of the mortgage money, to pay up the difference of interest between the date of the original deposit and the date of the appointment of the guardian, and in a ease whore such a deposit has been made, and the full amount has-been deposited on the date of the appointment of a guardian, further interest on the principal amount of the mortgage should, under the provisions of Section 84, cease. Our attention has been drawn to the case of Sheo Saran Chaudhri v. Ram Lagan Das (1921) I.L.R. 44 All. 64 decided by Mr. Justice. Lindsay and Mr. Justice Stuart. In that case an application was made under Section 83 of the Transfer of Property Act, and the court was asked to issue notice to the mortgagee, who was a minor under the guardianship of his father. It was held that the application was irregular inasmuch as no application to have a guardian appointed under Section 103 had been made, and that it was not sufficient merely to state in the application under Section 83 that the mortgagee was a minor under the guardianship of his father and leave it to the court to take steps to appoint a proper person to represent the minor. Agreeing, as we do, with the opinion of Mr. Justice Lindsay, we must dismiss the appeal with costs.