1. In this case the plaintiffs brought a suit to oblige the defendants to accept a mortgage amount which plaintiffs deposited in Court under Section 83 of the Transfer of Property Act. There is no dispute as to the amount. The defendants are the sons of the original mortgagee and consist of two brothers, a major and a minor respectively. The petition under Section 83 was presented on the 17th March, 1920, and prayed ' that the undermentioned amount may be ordered to be paid to the counter-petitioners after obtaining security for the minor, if necessary, etc.' The first counter-petitioner filed a statement in answer to this petition on the 21st of April, 1920, in which he stated that he was the Ejaman of the family, that the petitioner had refused to pay the amount to him and had deposited it in Court and that the petitioner is not entitled to ask for security. He adds, ' If the petitioner is willing to pay the said amount to me, I consent to receive the amount.' On this, the District Munsif ordered the petition to be recorded observing that the vakil who appeared on behalf of the 1st counter-petitioner had no authority to appear for the minor, that the 1st counter-petitioner refused to receive the amount by giving security, that he was the guardian (I presume he means natural guardian) of the 2nd counter-petitioner and that the former was absent. The District Munsif held that it was not possible to order the payment. Hence the suit.
2. The District Munsif in the suit held that the 1st defendant by his conduct in not having entered the appearance of the and defendant disabled the Court from ordering the payment apart from the question of security. So he held that the tender in Ex. A was valid. The District Judge upheld the decision of the District Munsif. The plaintiffs' explanation as detailed by the District Judge as to why they made the offer of payment conditional is that they believed the mortgage money to have been the self-acquisition of the father so that the two defendants would take equally as heirs and not as survivors. I cannot say that the explanation is very lucid and no attempt has been made to explain it by the learned Vakils who are appearing before me. The question is entirely technical and Mr. Yegnanarayana Adiga for the appellants contends that the tender is invalid because in fact the mortgagor has omitted certain formalities which are necessary under the provisions of the Transfer of Property Act and the Code of Civil Procedure before this can be held to be a valid tender. The chief section we are concerned with here is Section 84 which provides that interest shall cease from the date of the tender or as soon as the mortgagor or such other person as aforesaid has done all that has to be done by him to enable the mortgagee to take certain amount out of Court. The objection here is that it is for the mortgagor to carry out all the requirements of the law and not the mortgagee, so that in this case the mortgagor having joined in his petition the minor defendant with the major ought to have seen that the minor was properly represented by the appointment of a guardian in order that the Court might be able to order the money to be paid. It must be remembered it is not a case of a deposit to the credit of persons entitled to a definite share in the mortgage money but that these two persons were members of an undivided Hindu family. There seems to be a dearth of authorities for the proposition that has been advanced in Madras. But in Pandurang v. Mahadaji ILR (1902) B 23 a Bench of the Bombay High Court held in a similar case that it was the duty of the mortgagor not only to apply for the appointment of a guardian ad litem but to see that one was appointed, and that for the purpose of a tender under the Transfer of Property Act, it is incumbent on the mortgagor to procure the appointment of a guardian ad litem and that, until such an appointment has been made, there is no one to whom under the Act the tender on behalf of the minor could be made. The same view seems to prevail in Allahabad. Sheo Saran Choudhry v. Ram Lagan Das ILR (1921) A 64has been referred to on both sides. On behalf of the respondent here it is relied on as showing that, where a mortgage is in reality a mortgage taken by the head of a Hindu family, the mortgage money being supplied from the joint family funds, it may well be held that an offer to pay the money due on such a mortgage to the managing member is a good and valid tender. It is said in this case that there was such an offer, but the wording of the petition shows that it was not so. The amount was prayed to be paid to the counter-petitioners after obtaining security for the minor, if necessary. A point might have been taken that this is a conditional tender. But as I have come to my conclusion on other grounds it is unnecessary to definitely decide that this was a conditional tender. Now in Kannu Mal v. Indarpal Singh ILR (1922) A 273 it was held on a construction of Sections 83 and 84 that, 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 (cf. Section 103 of the Transfer of Property Act and Order 32, Rule 6 of the Code of Civil Procedure). It has been held by a single Judge of this Court (Oldfield, J.) in a case reported in Krishna Aiyar v. Chakrapani (1915) 29 IC 475, that the next friend of a minor plaintiff, even if he is the managing member of a joint Hindu family of which both are members, is not entitled to draw money from Court on behalf of the minor plaintiff without furnishing security.
3. On the other side I am referred to a case of the Privy Council reported in Walian v. Banke Behari Pershad Singh (1903) ILR 30 C 1021 (PC) in which their Lordships held that in, the case before them the absence of a formal order appointing the mother as guardian ad litem was only an irregularity and the irregularity could be cured. There it was uncertain whether there had been a formal order of appointment as the appointment, if made, would have been made 14 years before the question arose, and the mother had appeared throughout the proceedings as guardian. It does not appear to me that the facts of that case in any way resemble those of this case, or can constitute an authority to bind me.
4. I must, therefore, hold that the mortgagor has not performed what the law requires to be performed when a deposit is made under Section 83 of the Transfer of Property Act and that the Lower Court was wrong in holding that he had. There was, therefore, in my opinion no valid tender under Section 83, and, therefore, there is in my view no question of interest on this mortgage.
5. A question is raised as regards costs. The appellant here failed in both the Lower Courts and had to pay the respondents their costs. My order as to costs in the Lower Courts is that each party should bear their own costs. With regard to costs here the appellants must have them.
6. The appeal is therefore allowed with costs in this Court.