JUDGMENT

Allsop, J. - The following question has been referred to this Bench:

Whore there is nothing in the mortgage deed to indicate that the mortgagees advanced the money otherwise than in their individual capacities and where after the death of one of the mortgagees the mortgagor makes a deposit u/s 83, T.P. Act of the full amount due to the account of the surviving mortgagee and to that of the estate of the deceased mortgagee expressly or by necessary implication, impleading his sons as his heirs and it is subsequently found that one of the sons had no right to any part of the mortgage money, did interest cease to run from the date of the deposit or continue to run however bona fide the action of the mortgagor might have been?

2. The suit out of which this reference has arisen was one for the sale of property on the basis of a mortgage dated 11th August 1921 executed by Abdul Hakim in favour of Jhunni Lal and his son Nannhe Mai. Abdul Hakim transferred his interest to Ram Gopal who made a deposit u/s 83, T.P. Act on 13th August 1928. At that time Jhunni Lal was dead. He had left four sons, Mohan Lal, Nannhe Mal, Lachhman Das and Ram Narain. Ram Gopal in his application stated that Jhunni Lal was dead and he mentioned that these four persons were his sons. Be impleaded them as opposite parties and prayed that the money deposited should be paid to them. Nannhe Mal, Lachhman Das and Ram Narain claimed the amount deposited on the allegation that they were members of a joint Hindu family with Jhunni Lal and that Mohan Lal had separated from the family and had no interest left in the mortgage. Mohan Lal maintained that he was entitled to one-fourth of the amount deposited. The result was that the deposit was never withdrawn by the mortgagees. Ram Gopal eventually took the money out of Court on 17th December 1929 and later the suit for sale was instituted by the two sons of Nannhe Mai who by that time was dead and by Lachhman Das and Ram Narain. "We should perhaps mention in order to avoid confusion that Lachhman Das is also known as Chhote Lal because that is the name given in the application made by Ram Gopal. The question at issue was whether Ram Gopal was bound to pay interest on the mortgage money after the date of his deposit, i.e. after 13th August 1928. We must however emphasize that the question which has been referred to us is in general terms and we are not called upon to express any opinion upon the point whether the deposit by Ram Gopal was or was not one to the account of the estate of the deceased mortgagee. We have to answer the question put to us on the assumption that there was a deposit expressly or by necessary implication to the estate of the deceased mortgagee.

3. The reference is made because it appeared to the Judges comprising the Bench that there was a conflict of decisions between the cases in Ganeshi Lal and Others Vs. Rohni Rukumdhuj Prasad Singh and Ram Sumran v. Sahibzada Bijai Partab Narain Singh (1885) A.W.N. 328. In the latter case the appellant, the mortgagor of landed property to the Ram of Sitosi, deposited the full redemption money in Court, payable to her legal heirs or representatives; and he recited in his application the names of the persons who would be so under the will set up by them as the Rani's last testamentary act in respect of the property, of which the appellant's mortgaged estate was a part. He also set out the names of the respondents, who claimed the estate by right of inheritance, and denied the validity of the will. The Court paid the money deposited to one of the executors under the will and it was held that the deposit was a perfectly good one and that the mortgagor had discharged his liability. The learned Judges decided that the executors and the respondents could settle their dispute between themselves. In Ganeshi Lal and Others Vs. Rohni Rukumdhuj Prasad Singh as far as we can discover from the judgment, the deposit was made to the account of the two sons-of the deceased