DULHIN ANUPA KUAR Vs. BABU KAMESHWAR NATH VARMA

JUDGEMENT

(1.) This is a plaintiff's appeal against a decree of the learned Sub-ordinate Judge of Chapra partly decreeing his claim in a redemption suit. The facts of the case can be shortly stated as follows: On 20 September 1909 defendant 5 executed a usufructuary mortgage bond in favour of one Bindhyachal Prasad, a practising pleader. This bond was to secure a sum of Rs. 6999-15-6. On 4 September 1933 defendant 5 executed another usufruotuary mortgage in favour of the plaintiff to secure a sum of Rs. 9000. Out of this sum of Rs. 9000 the plaintiff undertook to pay the sum of Rs. 6999-15-6 due from defendant 5 under the previous mortgage transaction. On 22 August, 1934 the plaintiff deposited this sum in Court in the names of defendants 1 to 4, that is in the names of Babu Bireshwar Nath, Babu Dineshwar Nath, Bahu Sureshwar Nath and Musammat Sanjharo Kuar. These were-the brothers, nephews and widow of the original mortgagee. Notices were served on all the defendants on 26 January 1935-but the money deposited in Court was not taken out and possession was not given to the plaintiff. On 25th July 1935 the present suit was instituted. I may add that defendant 1 died and that his two minor sons, Kameshwar Nath and Umeshwar Nath, defendants 1 (a) and 1 (b), were brought on the record in his stead. The defendants pleaded that the money deposited was not sufficient and further that it had been deposited in the names of the wrong persons.

(2.) It was the case for the defendants that this mortgage in favour of Bindhyachal was really in favour of the joint family and that after Bindhyachal's death the other members of the family became entitled to the money to the complete exclusion of the widow, defendant 4. As I have stated, the money was paid in the names of the brothers and the nephews of the deceased mortgagee and the widow, and it was contended on behalf of the defendants that the persons entitled, namely the brothers and nephews of the mortgagee, could not take this money out by reason of the fact that the widow had also been joined with them as a person entitled to some share in the money.

(3.) The learned Subordinate Judge came to the conclusion that the money deposited was the correct sum; but he held that the money belonged to the joint family, namely the survivors after the death of Bindhyachal. In his view the widow had no right whatsoever to the money and that she should not have been joined along with the other defendants in this deposit. Accordingly he held that the deposit was not in accordance with the terms of Section 83, T.P. Act, and that the defendants were not bound to give up possession from the date of the deposit or from the date of the notices served upon them. Having held that the sum wag sufficient, he decreed the plain, tiff's claim for possession but refused to give the plaintiff anything by way of mesne profits from the date of the notices, namely 26 Januay 1935. On behalf of the appellant it has been contended that the learned Judge should have given mesne profits from the date when notices were served upon the defendants, that is 26 January 1935. Counsel has argued that as the mortgage stood in the name of Bindhyachal the plaintiff was entitled to assume that Bindhyachal's brothers, widow and nephews would be entitled to some interest in this mortgage money at Bindhyaohal's death. He has not contended before us that the finding that this was joint family property is wrong; but he has urged that the deposit made in their names was a good deposit within Section 83, T.P. Act.