THEVARAYA REDDY Vs. VENKATACHALA PANDITHAN

JUDGEMENT

(1.) The only question in this appeal is whether the appellants having deposited the money due from them on a mortgage, under Section 83 of the Transfer of Property Act, can claim exemption from interest under Section 84 although they withdrew the amount afterwards. The money was left in Court for a year or more but the title of the respondents as legal representatives of the mortgagee was then in dispute. The suit which settled their right was not decided until after the appellants had withdrawn the money. Section 84 says " when the mortgagor or such other person as aforesaid has tendered or deposited in Court under Section 83, the amount remaining due on the mortgage, interest on the principal money 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 such amount out of court, as the case may be ". The legislature has drawn a distinction between the case of a tender and a deposit as to the date from which interest shall cease to run. And this apparently for good reasons a tender in order to be valid must be made to the person entitled to receive the money. But when only a deposit is made the mortgagor must do something more. He must do all that has to be done in order to enable the person enittled to the money to receive it. Where the mortgagee as in this case is dead and the mortgagor not being sure as to who are the persons entitled to succession and thus unable to make a valid tender, deposits the money in court, but withdraws it before the rightful heirs are ascertained, he cannot be said to have done all that he could do to enable them to receive the money. In such cases the mortgagor cannot claim the benefit of Section 84, for the money having been withdrawn before the persons entitled to it have established their right, it must be taken that so far as they are concerned the deposit has never been made. The deposit in order to be effective under Section 84 must remain in Court until the mortgagee or his successor in interest has been enabled or is in a position to draw it. This is the interpretation put upon Section 84 in Krishnaswami Chettiar v. Ramaswami Chettiar (1910) I.L.R. 35 M. 44 which has been followed by Ayling, J. I may mention that we are not concerned here with the question whether that case was rightly decided upon its facts for, it in possible that the mortgagor there had in addition to the deposit also made a valid tender.

(2.) It appears however that after the suit was instituted the mortgagor again deposited the amount in Court. In calculating interest from that date the amount deposited should have been deducted from the principal and interest allowed only on the balance. To that extent the decree will be varied ; otherwise the appeals will be dismissed but in the circumstances of the case without costs. The respondent will be entitled to interest at 6 per cent. on the amount decreed from the date of the decree of this Court. Time for payment six months.

(3.) Letters Patent Appeal No. 330 of 1914:--This appeal is dismissed. Seshagiri Aiyar, J.