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Dwarka Pershad Vs. Sheoambar Koeri and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in15Ind.Cas.592
AppellantDwarka Pershad
RespondentSheoambar Koeri and ors.
Excerpt:
mortgage - usufructuary--mortgagor to redeem on the last day of jeth in a particular year--notice--mortgagee entitled to notice of redemption. - - on the terms of the covenant between the parties, there is only one possible case in which the mortgagees would be entitled to no notice at all, and that would be in the case of a payment made or tendered precisely on the last day of jeth. it is possible that, under normal circumstances, a written notice issued by the court might have been served on the mortgagees on or before the 22nd of june 1910, and that all the requirements of the contract between the parties might have been duly satisfied......one particular day in the year, namely, the last day in the month of jeth. this is not an unusual covenant in mortgages of this sort, and it is a covenant as to notice and a very stringent one. it proceeds on the assumption that there will be no standing crops on the land on the last day of jeth and that the mortgagee will not require formal notice of the mortgagor's intention to redeem provided payment is made or tendered on that particular day. of course, if the mortgagee chooses to go out of his way to bring the land under cultivation during the month of jeth, he takes the risk of his own covenant operating unfavourably to him, but as a general rule cultivation would not have commenced in that month. the effect of the covenant is really this, that if the mortgagor intimates his.....
Judgment:

Piggott, J.

1. This was a' suit for redemption of a mortgage on a certain fixed-rate tenancy, the mortgagees having obtained possession under the terms of the mortgage. There is no question now before me as to the plaintiff's right to redeem or the amount to be paid for redemption,.

2. The only question is whether the plaintiff entitled to damages claimed by him on the ground that he was wrongfully kept out of possession by the mortgagees during the year 1318 Fasli, after he had made a valid tender of the entire amount due. The Court of first instance gave the plaintiff a decree for Rs. 14-12 as damages, calculating the same to be the gross rental of the land in suit for that year. The learned District Judge, on an appeal by the defendant, has dismissed the claim for profits, remarking that, under the circumstances of the case, it did not appear to him that there was anything in law to compel the defendants to pay damages. Coming to this Court in second appeal, the plaintiff contends that he is entitled to damages either from the date of deposit, or from such date as shall be found by the Court to be the date on which the mortgagor did all that could be done by him to enable the mortgagee to lake the money deposited by him out of Court. The appellant relies upon the provisions of Sections 83, 84 and 76 Clause (i) of the Transfer of Property Act (IV of 1882). Those provisions are in his favour unless it can be shown that there existed between the parties a contract of notice of such a nature as to bring the case within the proviso to Section 84 of the aforesaid Act. Now, the contract of mortgage in this case contains a very stringent provision which is nothing more or less than that the mortgagee will not be bound to accept payment unless such payment is made or tendered on one particular day in the year, namely, the last day in the month of Jeth. This is not an unusual covenant in mortgages of this sort, and it is a covenant as to notice and a very stringent one. It proceeds on the assumption that there will be no standing crops on the land on the last day of Jeth and that the mortgagee will not require formal notice of the mortgagor's intention to redeem provided payment is made or tendered on that particular day. Of course, if the mortgagee chooses to go out of his way to bring the land under cultivation during the month of Jeth, he takes the risk of his own covenant operating unfavourably to him, but as a general rule cultivation would not have commenced in that month. The effect of the covenant is really this, that if the mortgagor intimates his intention to redeem or makes a tender of the money to the mortgagee at any time before the last day of Jeth in any given year, the mortgagee is entitled to continue in possession, that is to say, he is entitled to notice until the last day of jeth next following but if on that date he does not accept the tender and deliver up possession, he makes its refusal at his own risk and subjects himself to the provisions of those sections on which the appellant now relies in this case. On the terms of the covenant between the parties, there is only one possible case in which the mortgagees would be entitled to no notice at all, and that would be in the case of a payment made or tendered precisely on the last day of Jeth. In any other case, the effect of the contract between the parties is to entitle the mortgagees to notice from the date on which the payment was offered to them until the last day of Jeth next following. The length of notice would, therefore, vary according to the date on which the mortgagor tendered payment, or intimated to the mortgagees his intention of paying but the covenant is nevertheless essentially one as to notice. Now, in the present case it has been found by the lower Appellate Court that it is not proved that any communication took place between the parties privately or otherwise than through the agency of the Court, which: would amount to a tender of the mort-gage-debt by the plaintiff to the defendants or even an intimation by the plaintiff of his intention to pay the mortgage-debt on the last day of the month of Jeth next following. I have, therefore, only to consider what took place in Court. The last day of Jeth of the year 1317 Fasli fell on the 22nd of June 1910. On the 17th of June 1910, the plaintiff made in Court a tender of the full amount of the mortgage-debt as required by Section 83 of the Transfer of Property Act. Before the mortgagees could possibly be in a position to take this money out of Court, it is obvious that they must be informed of its having been deposited. It is possible that, under normal circumstances, a written notice issued by the Court might have been served on the mortgagees on or before the 22nd of June 1910, and that all the requirements of the contract between the parties might have been duly satisfied. The plaintiff, however, was unfortunate. The presiding officer of the Court concerned was absent on the 17th of June 1910 and the matter was only laid before him for orders on the 27th of June 1910, when written notice was ordered to be issued on the defendants-mortgagees. It is thus clear that the defendants did not receive and could not have received any intimation of the fact that the money due to them under the mortgage was lying in deposit to their credit, and might be taken out of Court by them at their pleasure, until the last day of Jeth of 1317 Fasli was gone by. The defence actually put forward by them against this claim for damages is that they received no intimation before the last day of Jeth 1317 Fasli of the plaintiff's intention to redeem and, therefore,' brought the land under cultivation. I agree with the learned District Judge that this was, under the circumstances, a valid defence. The mortgagees had, under the terms of their covenant, a light to decline to accept payment, by taking the money deposited out of Court, until the last day of Jeth next following, the date on which they received intimation that the money was lying in deposit. They were, therefore, entitled to maintain their possession and cultivate the land for two more harvests, that is the kharif and rabi of 1318 Fasli. The appeal, therefore, fails and is dismissed with costs.


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