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PATNA HIGH COURT
Reuben and Rai JJ.
Dundbahadur Singh
Versus
Durga Prasad Singh
Appeal from Original Decree No. 493 of 1946 ;
Decided On : JANUARY 23, 1953
USUFRUCTUARY MORTGAGE - REDEMPTION - DEPOSIT UNDER SECTION 83, TRANSFER OF PROPERTY ACT - SUFFICIENCY - NOTICE OF DEPOSIT - VALIDITY OF SERVICE - ORDER 5, RULE 17, CIVIL PROCEDURE CODE.
Fact of the Case:
Plaintiffs, transferees of the mortgagor, sued for redemption of a usufructuary mortgage. The mortgage bond provided that the income of the mortgaged property should be applied by the mortgagee as follows: Interest at 5 per cent, per annum on Rs 6000/-...Rs. 225- 0 0 Revenue and cess payable on account of the mortgaged property...Rs. 114-12-0 Pay of pat wari and village expenses...Rs. 15- 8-0 Reserved rent payable to the mortgagor...Rs. 0- 3-0 Rs. 355- 7-0 The mortgagee claimed tacking of dues in respect of 3 bighas 9 kathas of zirat land, overstatement of the income of the mortgaged property, and an increase in annual cess. The plaintiffs denied the correctness of the claim made on account of the zirat land and pleaded that the reserved rent had not been paid.
Finding of the Court:
The Additional District Judge held that the deposit of Rs. 6000.00 under Section 83 was sufficient and that notice of the deposit was validly served. He also held that the mortgagee got possession of the 3 bighas 9 kathas of zirat land and it has remained since then in his possession and that of his successors-in-interest. On this finding he had decreed the suit for redemption with mesne profits from the date of the deposit under Section 83.
Issues: 1. Whether the deposit under Section 83 is insufficient? 2. Whether the notice of the deposit was validly served? 3. Whether the mortgagee is entitled to tack the dues in respect of the 3 bighas 9 kathas of zirat land? 4. Whether the income of the mortgaged property was overstated? 5. Whether there was an increase in annual cess?
Ratio Decidendi: 1. The deposit under Section 83 is sufficient. The concession made by the appellants' lawyer in the Court of the Additional District Judge, that the deposit was insufficient, is not binding on the appellants and does not prevent them from re-opening this point in appeal. 2. The notice of the deposit was validly served. The evidence shows that the peon went to the village with the notices, that he met the defendants and made over the notices to the defendants, but they refused to sign an acknowledgment of receipt of the notices. Thereupon the peon made a note of the facts in his service return and got his report attested by some villagers. The defendants' refusal to sign the acknowledgment of receipt of the notices does not render the service invalid. 3. The mortgagee is not entitled to tack the dues in respect of the 3 bighas 9 kathas of zirat land. The evidence shows that the mortgagee got possession of the land and it has remained since then in his possession and that of his successors-in-interest. 4. The income of the mortgaged property was not overstated. The evidence does not support the defence case of overstating of the income of the mortgaged property by Rs. 23/7/6 by including in it two fictitious tenancies in the name of Harihar Chaube. 5. There was no increase in annual cess. The evidence does not support the defence case of an increase in annual cess from Rs. 114/12/0 as stated in the mortgage deed to Rs. 124/14/0.
Final Decision: The appeal is dismissed with costs.
Reuben, J.
1. This appeal by defendant first party is directed against a decision of the Additional District Judge, Motihari, decreeing a suit for the redemption of a usufructuary mortgage.
2. Plaintiffs first party are a joint Hindu family. Plaintiff second party and defendants second party are another joint Hindu family. The two joint families are the transferees of the rights of the mortgagor, and the right of the plaintiffs as transferees to sue for redemption is not challenged. Defendants appellants are the descendants of the mortgagee and are also a joint Hindu family. The mortgage in suit was executed on 14-10-1909 by Ramprasad Lal alias Ramprasad Singh in favour of Dhyan Singh to secure an advance of Rs. 6000.00 at simple interest of 5 annas per cent, per annum for a term of five years from 1317 to 1321 Fasli, repayable in Bhado 1321 or any Bhado thereafter, The property mortgaged consisted of:
1. 1 a. 10 p. pokhta share of milkiat bearing Tauzi No. 699 and 6 p. pokhta share of milkiat bearing Tauzi No. 698 in mauza Madhubani, pargana Mahsi. These tauzis are described as having an annual rent roll of Rs. 293/9/0. They included in addition 3 bighas of zirat land described in schedule 3 to the plaint.
2. 8 B. 15 K. of zirat land in mauza Madhubani aforementioned, the rental value of which was taken to be Rs. 56/14.
3. 3 kathas of sehan land in the town of Motihari.
The deed provided that the income of the mortgaged property, Rs. 298/9 plus Rs. 56/14/- equal to Rs. 355/4, should, be applied by the mortgagee as follows:
Interest at 5 per cent, per annum on Rs 6000/-...Rs. 225- 0 0 Revenue and cess payable on account of the mortgaged property...Rs. 114-12-0 Pay of pat wari and village expenses...Rs. 15- 8-0 Reserved rent payable to the mortgagor...Rs. 0- 3-0 Rs. 355- 7-0
Further, the bond recited that out of the item of 8 bighas 15 kathas zirat, the mortgagee had let 3 bighas 9 kathas to the mortgagor to be held by hi n for an annual rent of Rs. 22/8/- and in the event of non-payment
"the said creditor will be competent to realize the said amount Rs. 22/8/- principal besides interest at 12 per cent, per month through the Court from me the executant or my heirs and representatives year after year till the date of realisation year after year till the expiry of the term or the payment of the peshgi money."
3. According to the plaintiffs, throughout the continuance of the mortgage, the reserved rent has not been paid. The plaintiffs also point out that no income was fixed by the mortgage bond in respect of the Schedule 3 property. They claim that the dues under the mortgage are more than covered by the income of the schedule 3 property and the arrears and interest of the reserved rent thus:
Reserved rent from 1330 to 1351 Fasli and interest thereon...Rs. 5-2-0 Income from schedule 31 and 1330 to 1351...Rs. 8155-13.0 Rs. 8160-15.0
They therefore asked for a decree for recovery of possession of the property on the finding that the account given above is correct or failing that a preliminary decree for accounts. Regarding the property that was leased back they pleaded that the mortgagee did not put the mortgagor in possession of it, and it has remained in the possession of the mortgagee and his successors in interest throughout. The amount of the mortgage money Rs. 6000.00 has been deposited under Section 83, Transfer of Property Act as a preliminary to the filing of this suit, and notice has been issued by the Court under that section and has been returned as served. It was pleaded that offers to make direct payment were put off from time to time and were finally refused in the following circumstances:
"Eventually in the month of Aghan 1351 Fasli the rehan money was tendered to the defendants 1st party and they were asked to render an account of the rehan money, But the defendants 1st party made illegal claim for the arrears of the hunda money in respect of the lands entered hereunder in schedule No. 5, for the days comme
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