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A. Krishna Raya Kodgi and anr. Vs. Sankayya Shetty - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported in(1949)1MLJ196
AppellantA. Krishna Raya Kodgi and anr.
RespondentSankayya Shetty
Excerpt:
- - it may well be argued that ex. section 83 is one of the provisions which might be properly resorted to in the case of a charge like the present involving payment of a definite sum of money. i therefore hold that the deposit under section 83 of the transfer of property act is not bad for the reason that it omitted to include the proposed enhanced assessment......suit for the recovery of a sum of rs. 756-13-10 being the arrears of mulgeni rent together with enhanced assessment payable to the government, due from the defendant on the basis of a mulgeni chit, dated 14th may, 1900, ex. p. 1, being the counter part of the mulgeni chit. the courts below have dismissed the plaintiffs' suit on the ground that the amount really due and payable by the defendant has been deposited by him in the court in o. p. nos. 21 of 1938, 33 of 1939 and 37 of 1942 in full discharge of the liability and that it is open to the plaintiffs to draw the money from court and satisfy their claim. the plaintiffs have preferred this second appeal. 2. mr. t. krishna rao, the learned counsel for the appellants, has raised four contentions on this appeal. his first contention is.....
Judgment:

Viswanatha Sastri, J.

1. The plaintiffs are the appellants in this second appeal. They brought the suit for the recovery of a sum of Rs. 756-13-10 being the arrears of mulgeni rent together with enhanced assessment payable to the Government, due from the defendant on the basis of a mulgeni chit, dated 14th May, 1900, Ex. P. 1, being the counter part of the mulgeni chit. The Courts below have dismissed the plaintiffs' suit on the ground that the amount really due and payable by the defendant has been deposited by him in the Court in O. P. Nos. 21 of 1938, 33 of 1939 and 37 of 1942 in full discharge of the liability and that it is open to the plaintiffs to draw the money from Court and satisfy their claim. The plaintiffs have preferred this second appeal.

2. Mr. T. Krishna Rao, the learned Counsel for the appellants, has raised four contentions on this appeal. His first contention is that Ex. P. 1 merely creates a charge for the unpaid arrear of rent on the mulgeni holding and the improvements effected by the tenant and it is not open to the defendant, the representative of the mulgeni tenant, to deposit the amount in Court under Section 83 of the Transfer of Property Act. The contention is that the procedure prescribed in Section 83 of the Transfer of Property Act is limited to mortgages properly so called and cannot be extended to charges securing a recurring liability. It may well be argued that Ex. P. 1, containing as it does a personal covenant to pay and also creating a charge on the mulgeni interest and the improvements effected by the tenant for the rents payable by him is, in substance, a simple mortgage. Assuming, however, as Mr. Krishna Rao contends and the Courts below have held, that Ex. P. 1 creates only a charge upon the mulgeni interest, I do not see any reason why Section 83 of the Transfer of Property Act should not be availed of by the person liable to pay the amount charged, by depositing the amount due in respect of the charge and thus redeeming the property. Section 100 of the Transfer of Property Act provides that the provisions relating to simple mortgages may be availed of, as far as may be by persons entitled to a charge or bound by it. Section 83 is one of the provisions which might be properly resorted to in the case of a charge like the present involving payment of a definite sum of money. No authority has been cited by the learned Counsel on both sides on this point and I hold that the language of Section 100 of the Transfer of Property Act permits the procedure prescribed in Section 83 of the Transfer of Property Act to be availed of by the person who is liable to pay money charged on land.

3. The second contention of Mr. Krishna Rao is that there has been no proper compliance with the provisions of Section 83 of the Transfer of Property Act because the defendant has not taken the steps prescribed by Order 32, Rule 3, Sub-clause (4) of the Civil Procedure Code. I find from one of the petitions filed under Section 83 of the Transfer of Property Act marked as Ex. D-3 in the case, that the second plaintiff's father has been treated as a guardian of the minor second plaintiff and served with notice of the application. The objection now taken has not been raised in the Courts below and since it involves an investigation of facts, I consider that it should not be permitted to be raised for the first time on second appeal.

4. The third contention of Mr. Krishna Rao is that under the terms of Ex. P-1 the tenant is bound to pay not only the rent fixed by the mulgeni chit but also any enhanced assessment that might be due and payable to the Government in respect of the land demised and that in the present case the tenant did not pay into Court the amount of such enhanced assessment. I consider that, in the circumstances of this case, there has been no effective or real enhancement of the assessment by the Government. It is not pretended that the Government has collected any such enhanced assessment or that the plaintiffs have paid any enhanced assessment. All that appears is that there was a notification for the levy of an enhanced assessment in future. As the Shanbogus, who is examined on the side of the plaintiffs, himself admits, there has been no actual levy or demand for any enhanced assessment by the Government. I therefore hold that the deposit under Section 83 of the Transfer of Property Act is not bad for the reason that it omitted to include the proposed enhanced assessment.

5. Mr. Krishna Rao lastly raised a question as regards the rate of interest to which the plaintiffs were entitled but ultimately gave up this point.

6. In the result, I hold that the decision of the Courts below is right and I dismiss this second appeal with costs.

(Leave to appeal is refused.)


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