Skip to content


Pandit Jiva Ram Vs. ThakuraIn Khem Koer - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1923All24; 70Ind.Cas.811
AppellantPandit Jiva Ram
RespondentThakuraIn Khem Koer
Excerpt:
transfer of property act (iv of 1882), sections 83, 84 - mortgage--redemption--deposit in court--notice to mortgagee--interest, cessation of. - .....1917.2. on behalf of the defendant it was pleaded that there had been no proper tender and the suit for redemption was not maintainable and that in any case interest did not cease to run.3. the court of first instance decreed the suit for redemption but directed that redemption should take place from the following jeth. it disallowed the claim for mesne profits. on appeal the learned district judge was of opinion that the deposit under section 83 was sufficient compliance with the law to stay interest. he accordingly decreed the whole suit.4. in second appeal it is contended on behalf of the defendant-appellant that the view taken by the learned district judge was not correct. under section 83 of the transfer of property act at any time after the money has become payable, the.....
Judgment:

1. This is a defendant's appeal arising out of a suit for redemption brought by the plaintiff on the basis of a mortgage-deed, dated 12th June 1919. The mortgage-deed had provided that if in any year in the month of Jeth when there are no crops on the fields the whole amount is paid, the plaintiff would be entitled to claim redemption. The plaintiff deposited the whole amount due under Section 83 of the Transfer of Property Act on the last day of the month of Jethtin the year 1917.

2. On behalf of the defendant it was pleaded that there had been no proper tender and the suit for redemption was not maintainable and that in any case interest did not cease to run.

3. The Court of first instance decreed the suit for redemption but directed that redemption should take place from the following Jeth. It disallowed the claim for mesne profits. On appeal the learned District Judge was of opinion that the deposit under Section 83 was sufficient compliance with the law to stay interest. He accordingly decreed the whole suit.

4. In second appeal it is contended on behalf of the defendant-appellant that the view taken by the learned District Judge was not correct. Under Section 83 of the Transfer of Property Act at any time after the money has become payable, the mortgagor may deposit in Court the amount due en the mortgage and on the deposit having been made it is the duty of the Court to cause written notice of the deposit to be served on the mortgagee. Section 84 provides that when the mortgagor after having deposited the money under Section 83 'has done all that has to be done by him to enable the mortgagee to take such amount from the Court as the case may be' the interest on the principal money shall cease to run. The proviso to that section Says that if, however, there is a special contract entitling the mortgagee to a reasonable notice before payment or tender of the mortgage-money, then the mortgagee would not be deprived of his right to get interest.

5. In the present case there can be no doubt that, after depositing the money in Court the mortgagor did all that was in his power to do which would ultimately enable the mortgagee to take out the money from the Court. He did apply for issue of notice to the mortgagee and gave the correct address. It is true that, as a matter of fact, notice was not actually served on the mortgagee till after Jeth, but, in our opinion, the duty of getting service effected on the mortgagee was no part of the duty of the mortgagor. The mortgagor, therefore, had done all that had to be done by him to enable the mortgagee to take the money out of the Court.

6. Now, it remains to see whether there was any special contract which entitled the mortgagee to have notice before payment. The way in which we read the mortgage-deed in suit does not justify any inference that there was any contract between the parties that previous noticeshould be given to the mortgagee before redemption. Reliance is placed on the case of Dwarka Pershad v. Sheoambar Koeri 15 Ind. Cas. 592. In that case the learned Judge of the Court conceded that if the mortgagor had done all that was in his power to do, interest would cease to run. He was, however, of opinion that the mortgage-deed there in suit did contain provisions which showed that there was a contract of notice of such a nature as to bring the case within the proviso to Section 84 of the Act. The wordings of the two documents are quite different and it is, therefore, not necessary for us to say whether the view taken in that case was or was not correct. The document before-us does not contain any express or implied contract entitling the mortgagee to notice before payment. The case, therefore, does not fall under the proviso to Section 84. We are, therefore, of opinion that as soon as deposit was made and the mortgagor had done all that he had to do to enable the mortgagee to take the amount out of Court, interest ceased to run. The mere circumstance that the notice was not actually served on the mortgagee till after Jeth would not alter matters. The result is that this appeal fails and is hereby dismissed with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //