1. This case had already been before us and was adjourned for the production of the record of certain proceedings which were taken under Section 83 of the Transfer of Property Act.
2. We sent for that record in order to enable us to decide a plea which was raised in both the Courts below, it was whether a deposit which undoubtedly was made by the mortgagee in this case was a valid deposit so as to stop the running of interest.
3. It has been found as a matter of fact that the mortgagee in this case, that is to say the person in whose favour the mortgage purports to have been executed, was one Ram Lagan, who was at the time of the mortgage a minor. So far as can be ascertained, he was at that time about five years of age and according to the evidence on the record the Court below has found that he was a member of a joint Hindu family along with his father, one Mahadeo Das.
4. The record of the Section 83 proceedings has been brought before us, and from this it appears that on the 19th August 1909 an application was made to the Court asking for service of notice on the mortgagee, who was described as 'Ram Lagan minor, under the guardianship of his father Mahadeo Das.' It was also proved from the record that on the date this application was presented, the mortgagors deposited into the Court a sum of Rs. 1,446-6-0 which represented the sum than due on account of the mortgage.
5. It is further clear, however, that no application was ever made to the Court for the purpose of having Mahadeo Das constituted the guardian ad litem of his minor son Ram Lagan for the purpose of receiving service of notice under Section 83 of the Transfer of Property Act. A notice did issue addressed to Ram Lagan under the guardianship of his father Mahadeo Das. All that appears is that this notice was stuck up on the door-post of the house and that the serving officer reported that he was not able to effect personal service either on the minor or the father. When this notice was returned, the Court directed the proceedings to be shelved.
6. It would, in our opinion, be impossible to hold that the Courts below were wrong in deciding that the minor was not bound by these proceedings under Section 83. The law on the subject, which is contained in Section 103 of the Transfer of Property Act, has, we think, been rightly interpreted by the Court below and in support of the interpretation there is a ruling of the Bombay High Court reported as Pandurang Babu Parab v. Mahadaji Moreshvar Gokhale 27 B. 23 : 4 Bom. L.R. 714.
7. The matter, however, does not appear to us to end here. Mr. Agarwala for the appellants has contended that apart from the deposit proceedings taken under Section 83 of the Transfer of Property Act there was, in fact, a valid tender of the mortgage money before the money was put into Court. This plea was raised in the lower Appellate Court, but the learned District Judge refused to entertain it on the ground that no such case had been set up in the written statement.
8. It is quite true that no such plea of tender, as distinct from the deposit in Court, was raised in the written statement which has been filed. We have, however, certain statements made by the Pleaders of the parties which are set, down on page 10 of the paper-book. Those statements perhaps do not indicate that a direct tender of the money was made to Mahadeo Das, the father of Bam Lagan, but it may at any rate be said that they suggest that something of the kind was done. We notice moreover that evidence was allowed to be adduced in the First Court for the purpose of showing that a definite offer of the mortgage money was made to the father of Ram Lagan. The Subordinate Judge has dealt with this matter at length in his judgment and we need not at the present stage refer to it further.
9. There can be no doubt that at the time this mortgage was made, the present plaintiff Bam Lagan was, according to the findings of the Court below, a lad of about five years of age. It is apparent that he and his father Mahadeo Das constituted a joint Hindu family and that Mahadeo Das was the managing member of that family. If we are to take into account the fast that this transaction of mortgage was really entered into by the joint family consisting of Mahadeo Das and his son and if we believe that at the time of these deposit proceedings, that is to say in the year 1909, Ram Lagan was. still a minor, then we think it might well be held that an offer to pay the mortgage money to the managing member of the joint family was a good and valid tender in the eye of the law.
10. It has, however, been objected that this case was not definitely set up in the Court below, and that perhaps is correct. At the same time there is evidence on the record to indicate that the money which was advanced was the property of a joint Hindu family and, we think, for the purpose of doing justice between the parties this is a question which requires further investigation. It is to be observed that on the 29th August 1909, when the deposit was made in Court, the mortgage amounted to Rs. 1,446-6 0, At the present time the claim has swelled to Rs. 3,893-12-0, the difference representing the interest which has accrued between the year 1909 and the year in which this suit has been brought. The matter is one of great importance to the representatives of the mortgagors and we think, as we have said, that complete justice cannot be done without a further investigation into the matter. We have, therefore, decided to remit two issues to the lower Appellate Court for disposal. They are as follows:--
(1) Was the mortgage debt due under the deed of 15th December 1900, for the purpose of securing which the bond in suit was executed, a debt due to the joint Hindu family consisting of Mahadeo Das and his son Ram Lagan, or was the money due to Ram Lagan alone?
(2) Was an unconditional tender of the mortgage money made to Mahadeo Das by the appellants?
11. The parties will be at liberty to adduce any evidence they choose on these issues and the Court below should return its findings within two months from the date of the receipt of this order. Ten days will be allowed after the findings have been received in this Court to file objections.