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Raj Mohan Das v. Sarada Charan Chaudhury
Structured Summary of the Provided Legal Opinion
Factual and Procedural Background
This opinion arises from a Rule obtained by the defendant in a suit instituted in the Court of Small Causes at Patiya for recovery of mesne profits for the period November 1931 to November 1934. The mesne-profits suit was filed on 5 December 1934.
Key factual chronology stated in the opinion:
- 15 April 1917: Nobin Chandra Chowdhury and three others executed a mortgage for Rs. 100 in favour of Tarini Charan Dass (the mortgagee). The mortgage provided that the usufruct of the mortgaged property would be taken in lieu of and in complete satisfaction of interest.
- Tarini Charan (the mortgagee) went into possession and remained in possession of the mortgaged lands until November 1934.
- Sarada Charan Chowdhury (the opposite party) purchased the Chowdhurys' interest in execution of a money decree and deposited the mortgagee's dues in Court on 12 December 1930 under Section 83, Transfer of Property Act (T.P. Act). Notice of the deposit was served on Tarini on 25 December 1930. Tarini neither withdrew the deposit nor surrendered possession.
- Opposite party thereafter instituted Suit No. 200 of 1932 against Tarini, seeking a declaration that the mortgage stood redeemed by deposit and notice, recovery of possession, and reconveyance. The Chowdhurys did not appear; Tarini defended and raised, among other pleas, that the plaintiff was not entitled to relief without paying money due under a separate simple mortgage for Rs. 2,500.
- The learned Munsif decreed that the plaintiff had the right to redeem, to get khas possession, and directed the defendant (Tarini) to execute reconveyance within three months.
- Tarini appealed (Appeal No. 66 of 1934). The Subordinate Judge's judgment granted Tarini additional time to take the paddy on the land until Agrahayan 1341 B.S. (November 1934) and declared the mortgage redeemed by deposit and notice; it directed that the plaintiff obtain khas possession by end of Agrahayan 1341 B.S.
- By the end of Agrahayan 1341 B.S. the mortgagee gave up possession to Sarada Charan Chowdhury. Sarada then sued the heir of Tarini for mesne profits from the date of service of the notice of deposit under Section 83 T.P. Act until he regained possession, limiting the claim to begin from November 1931 on limitation grounds. The Small Cause Court Judge decreed in favour of the plaintiff in that mesne-profits suit. The defendant obtained the present Rule challenging that decree.
Legal Issues Presented
- Whether the claimant's mesne-profits claim (for the period claimed) was maintainable in law after deposit under Section 83, T.P. Act and after the litigation between the parties concerning redemption.
- Whether a suit for redemption (or one arising from a mortgagor's attempt to obtain release of mortgaged property) must include in the same suit the accounts for profits/over-payments up to the date fixed by decree, thereby barring a subsequent suit for mesne profits under principles embodied in Expln. 4 to Section 2, Civil P.C. or Order 2, Rule 2 of the Code.
- Whether the mortgagee's possession became wrongful (so as to entitle a separate mesne-profits claim) from the date of service of the notice of deposit under Section 83, T.P. Act.
- Whether the appellate court's direction permitting the mortgagee to take profits (paddy) on the land up to Agrahayan 1341 B.S. was ultra vires or in excess of jurisdiction and therefore could not preclude subsequent claims for those profits.
Arguments of the Parties
Plaintiff's (Sarada Charan Chowdhury) Arguments
- The deposit of the mortgagee's dues under Section 83, T.P. Act, with notice served on Tarini, had the legal effect of redeeming the mortgage; accordingly the plaintiff became entitled to possession and reconveyance.
- By virtue of the deposit and notice, the plaintiff became entitled to mesne profits from the date of service of the notice under Section 83, T.P. Act, up to the date when possession was recovered; due to limitation the plaintiff limited his claim to mesne profits from November 1931 onwards.
Defendant's (Tarini Charan / his heir) Arguments
- In the redemption suit Tarini contested the plaintiff's title and also contended that the plaintiff could not obtain relief without first paying money due to Tarini under a separate simple mortgage for Rs. 2,500.
- In challenging the mesne-profits decree, the defendant argued that the decree was not sustainable. (The opinion records that the Small Cause Court Judge had given particular reasons for overruling the defense; the Court later addresses these reasons.)
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Kaehu v. Lakshman Singh (1901) 25 Bom 115 | Support for the rule that claims for accounts or profits should be included in a suit for redemption and a subsequent separate suit may be barred. | One of a series of cases relied on to deduce that mortgagors ought to include such claims in a redemption suit; used to support the court's conclusion that separate mesne-profits claims can be barred. |
| Vinayak v. Dattatraya (1902) 26 Bom 661 | Same principle: treating accounts/profits claims as matter to be included in redemption proceedings. | Included among authorities forming the basis for the rule applied to the facts of the present case. |
| Satyabadi Behara v. Harabati (1907) 34 Cal 223 | Twofold: (a) authority supporting inclusion of accounts in redemption suits; (b) authoritative statement that the trespasser/mesne-profits analogy does not apply where mortgagee remains mortgagee after tender/deposit. | The Court relied on this case to reject the analogy that a mortgagee becomes a trespasser upon tender or deposit; cited to hold that mesne-profits causes of action do not arise before institution of the redemption suit in such circumstances. |
| Rukhminibai v. Venkatesh (1907) 31 Bom 527 | Support for the principle that accounts must be included in redemption proceedings. | One of the authorities cited to establish the settled rule applied by the Court in this opinion. |
| Kashi Pershad v. Bajrang Prasad (1907) 30 All 36 | Authority supporting the rule that claims for accounts/profits are to be included in redemption suits and may be barred if not included. | Relied on as part of the body of case-law justifying the Court's conclusion about the scope of a redemption suit. |
| Sahari Dutt v. Ainuddy (1910) 14 C W N 1001 | Supporting authority for the rule about inclusion of accounts in redemption suits. | Used as part of the line of decisions from which the Court derives the rule applied to the present dispute. |
| Ma Nyo v. Maung Ba Bu 1925 Rang 13 | Supportive precedent in the series showing that account claims should be dealt with in redemption suits. | Included among the precedents reviewed to justify the Court's approach to the mortgagor-mortgagee account issues. |
| Abu Jaffar v. Raghoindra Partab Shahi (1926) Oudh 113 | Reviewed other cases and treated the common rule about inclusion of accounts in redemption suits. | Referenced as a review that collects and supports the series of cases establishing the rule relied upon by the Court. |
| Tarini Charan v. Kedar Nath 1928 Cal 777 | Principle that an erroneous decision on a point of law is res judicata between the parties. | Applied to hold that the appellate court's direction about profits up to Agrahayan 1341 B.S. is final between these parties even if it were erroneous on a point of law. |
| Bindeswari Charan Singh v. Thakur Bagoswari Charan Singh 1936 P C 46 | Affirmation of the principle that an erroneous decision of law can operate as res judicata between parties. | Relied on to support the view that the earlier appellate decision settling entitlement to profits operates conclusively between the parties. |
Court's Reasoning and Analysis
The Court's analysis proceeds in distinct steps, applying statutory provisions and settled principles of mortgage and procedure law to the facts adduced in the opinion.
- Nature of the action: The Court explains that when a mortgagee in possession resists a mortgagor's attempt to obtain release of the mortgaged property and to regain possession, the correct form of action for the mortgagor is a suit for redemption. This principle remains true when the mortgagor tenders payment which is refused or when the mortgagor deposits the sum under Section 83, T.P. Act and the mortgagee refuses to withdraw the deposit. The relation of mortgagor and mortgagee continues after tender or deposit.
- Accounting in a redemption suit: The Court describes the procedural course in a typical suit for redemption. Ordinarily the accounts between the parties must be gone into. If money is due to the mortgagee, a preliminary decree is made directing payment within a time; on default, a final decree (for redemption, foreclosure or sale) follows. The date of default in the preliminary decree can be extended by the Court. Where no preliminary decree is required because no money is found due (or the mortgagee has overpaid himself from usufruct), there will be a single final decree in terms of Order 34, Rule 9 of the Code.
- Scope and intention of the legislature: The Court infers that the legislature intended a suit for redemption to include the entire accounts between parties up to the date of default fixed in the preliminary decree, or up to the date of the final decree where no preliminary decree is necessary. Consequently, claims by the mortgagor for overpayments or excess profits received by the mortgagee up to those dates must be included in the suit for redemption; failure to include them will generally bar a subsequent suit for the same matters. The Court cites a series of cases to support this rule.
- Application to tender/deposit cases: The Court holds that the principles above also apply where the mortgagor has validly tendered payment that was refused or has deposited funds under Section 83, T.P. Act that the mortgagee has not withdrawn. In those situations the mortgagee in possession remains a mortgagee and does not become a trespasser from the moment of tender or from the moment of notice of deposit. Therefore, analogies to cases allowing mesne-profits against trespassers (for periods before institution of the suit for possession) are inapplicable. The Court relies on Satyabadi Behara v. Harabati in support of this point.
- Effect on the Small Cause Court's reasons: The Court finds the first two reasons given by the learned Small Cause Court Judge (that Order 2, Rule 2 C.P.C. is not a bar and that possession became wrongful from the date of notice under Section 83 T.P. Act thereby giving rise to a mesne-profits cause of action) to be incorrect in law based on the principles set out above.
- On the appellate court's direction permitting the mortgagee to take profits until Agrahayan 1341 B.S.: The Court examines the paragraph from the Subordinate Judge's judgment (in Appeal No. 66 of 1934) which expressly allowed the mortgagee to take the paddy on the land up to Agrahayan 1341 B.S. The present Court finds that the Subordinate Judge had jurisdiction to settle the parties' rights in that appeal and that the direction was a clear settlement of the parties' rights in that suit. The Court holds that even if that decision had been wrong on a point of law (which the Court does not assert), such an erroneous decision is res judicata between the parties by authority of Tarini Charan v. Kedar Nath and Bindeswari Charan Singh v. Thakur Bagoswari Charan Singh.
- Conclusion of analysis: On the foregoing statutory and precedential bases the Court concludes that the Small Cause Court's decree awarding mesne profits cannot stand. The Court therefore makes the Rule absolute, discharges the decree of the Small Cause Court, and dismisses the plaintiff's mesne-profits suit.
Holding and Implications
Core Ruling: The Rule is made absolute; the decree of the Court below is discharged and the plaintiff's suit for mesne profits is dismissed.
Direct consequences for the parties (as stated in the opinion):
- The plaintiff's suit for mesne profits is dismissed.
- The defendant is awarded his costs of the Court below and of this Court.
- Hearing fee assessed at one gold mohur.
Broader implications: The opinion applies and reiterates established principles about the scope of a suit for redemption (including the requirement to include accounts and profits up to the date fixed by decree) and affirms that a mortgagee in possession does not become a trespasser merely because the mortgagor tenders payment or deposits under Section 83, T.P. Act. The opinion relies on existing precedents (cited above) and treats the appellate settlement of rights as conclusive (res judicata) between the parties. The opinion does not set out any express statement that it establishes a novel legal precedent beyond applying these established rules to the facts of the case.
1. This rule has been obtained by the defendant in a suit instituted in the Court of Small Causes at Patiya for recovery of mesne profits from November 1931 to November 1934. This suit was filed on 5th December 1934. The question involved in this Rule is whether this claim is maintainable in law. On 15th April 1917 Nobin Chandra Chowdhury and three other persons, who may be called the Chowdhurys, executed a mortgage for a sum of Rs. 100 in favour of Tarini Charan Dass (since deceased), the father of the petitioner. The mortgagee was given possession, the stipulation in the bond being that the usufruct of the property mortgaged would be taken in lieu of and in complete satisfaction of the claim for interest. Tarini accordingly went into possession and remained in possession of the mortgaged lands till November 1934. The opposite party, Sarada Charan Chowdhury, purchased in execution of money decree the interest of the Chowdhurys in the mortgaged land, and deposited in Court the mortgagee's dues on 12th December 1930 under the provisions of Section 83, T. P. Act. Notice of the deposit was served on Tarini Charan Das, the mortgagee, by the Court on 25th December 1930. Tarini did not withdraw the money nor did he deliver possession to the opposite party.
2. Thereafter the opposite party instituted a suit against Tarini Charan Chowdhury being No. 200 of 1932. In the suit he prayed for a declaration that by his aforesaid deposit the mortgage had stood redeemed, for recovery of possession of the mortgaged property and for a reconveyance from the mortgagee. The Chowdhurys did not appear but Tarini appeared and contested the suit. Besides challenging the title of the opposite party he pleaded that the plaintiff in the suit was not entitled to any of the reliefs claimed by him without paying him money due on another simple mortgage executed in his favour by the Chowdhurys for Rupees 2,500. The pleas taken by Tarini were overruled by the learned Munsif. The material part of the decree passed by the Munsif is as follows:
That it be declared that the plaintiff has the right to redeem and he do get khas possession; that defendant 1 (Tarini) do execute within three months from this date a reconveyance in favour of the plaintiff.
3. Tarini preferred an appeal (No. 66 of 1934). One passage in the judgment-pronounced in the said appeal is material and in my judgment the learned Small Cause Court has gone wrong by misjudging the effect of the said passage in the said judgment. The said passage is as follows:
I have been asked by the defendant-appellant to give him six months' time more. In view of my finding that the plaintiff is not liable to redeem the simple mortgage for Rs. 2,500 for this and other lands and defendant may be put to further trouble, he may be allowed to take the paddy grown on the land by him; so I allow him time till Aughrayan 1341 B.S. (November 1934). The suit is decreed with costs. The mortgage is declared to be redeemed by the deposit and notice. Plaintiff do get khas possession of the mortgaged property by the end of Agrahayan 1341 B.S.
4. These observations were made by the Subordinate Judge in dealing with the question as to what relief the plaintiff was entitled to get. The mortgagee gave up possession by the end of Agrahayan 1341 to Sarada Charan Chowdhury, who has instituted the present suit against the heir of Tarini. In the plaint he states that he became entitled to mesne profits from the date of service of the notice of deposit under Section 83, T. P. Act, on Tarini till he got back possession and as his claim for mesne profits for about one year has been barred by limitation he is suing for mesne profits from November 1931. His suit has been decreed by the Small Cause Court Judge. The defendant complains of this decree and his ground is that the decree is not sustainable at all. The reasons given by the learned Small Cause Court Judge for overruling the aforesaid defence may be summarised thus: (i) Order 2, Rule 2, Civil P. C., is not a bar, taking Suit No. 200 of 1932 to be a suit for redemption, as a mortgagor had only the right to get possession of the lands from a usufructuary mortgage after a decree passed under Order 34, Rule 7, and that the plaintiff's cause of action for mesne profits did not arise before the institution of the said suit but thereafter. (ii) that the possession of the mortgagee became wrong ful from the date of the notice on him of the deposit made under Section 83, T. P. Act, and the plaintiff is accordingly entitled to get mesne profits from that date; and (iii) that at the request of the mortgagee the Court gave him time and allowed him to remain on the land till Agrahayan 1341 B.S. and to reap the paddy grown by him, and that the order of the appellate Court (in appeal No. 66 of 1934) implying that all the profits till 1341 B.S. is to be taken by the mortgagee is "ultra vires and without jurisdiction" as that " Court could not override the clear provisions of law.". In my judgment all the reasons given by the learned Small Cause Court Judge are wrong and the Rule must be made absolute. Where a mortgagee resists the right of the mortgagor to get a release of the mortgaged property and give up possession, where he is in possession, the suit which the mortgagor has to institute is a suit for redemption.
5. It would still be a suit for redemption, if the tender made by the mortgagor has been refused or if he deposits the money under Section 83, T. P. Act, and the mortgagee has refused to withdraw the same, or if the mortgagee being in possession, the amount of the usufruct received by him has satisfied his dues or where by such receipts he had overpaid himself. If a suit for redemption is brought the accounts must be gone into in ordinary cases. If any money is found due to the mortgagee on such accounting a preliminary decree must be made directing the mortgagor to pay the same 'within a certain time, and then on the passing of the day of default, a final decree whether for redemption, foreclosure, or sale must be made, according as the money found due to the mortgagee is paid by the mortgagor or not. The date of default fixed in the preliminary decree can be extended by the Court. Where on an account being taken no money is found to the mortgagee or where the mortgagee has been overpaid or has overpaid himself from the usufruct, in the case where he was in possession, two decrees, namely the preliminary and the final decree, has not to be passed, but there would be one decree, a final one, in terms of Order 34, Rule 9 of the Code. The intention of the legislature is that a suit for redemption must include the entire accounts between the parties in relation to the mortgage up to the date of default mentioned in the preliminary decree. Where no preliminary decree has to be passed the entire account up to the date of the final decree passed in the suit for redemption must be taken. The claim of the mortgagor for overpayments to the mortgagee or excess profits received by the mortagee up to these dates mentioned above must be included in the suit for redempion, and if he does not include the said claim he would bedebarred from claiming the same in a subsequent suit. This rule is deducible from a series of cases, namely Kaehu v. Lakshman Singh (1901) 25 Bom 115; Vinayak v. Dattatraya (1902) 26 Bom 661; Satyabadi Behara v. Harabati (1907) 34 Cal 223; Rukhminibai v. Venkatesh (1907) 31 Bom 527; Kashi Pershad v. Bajrang Prasad (1907) 30 All 36; Satyabadi Behara v. Harabati (1907) 34 Cal 223; Sahari Dutt v. Ainuddy (1910) 14 C W N 1001; Ma Nyo v. Maung Ba Bu 1925 Rang 13 and other cases reviewed in the case of Abu Jaffar v. Raghoindra Partab Shahi 1926 Oudh 113 The rule has been based in these decisions on one of two principles, namely (i) that the mortgagor might and ought to have included such a Claim in his suit for redemption, and accordingly Expln. 4 to Section 2, Civil P. C., bars a subsequent suit for the same; (ii) that Order 2, Rule 2 of the Code bars such a suit as the liability of the mortgagee to account for such payments or profits is a statutory liability attached to the mortgage contract.
6. These principles in my judgment also apply to the case where the mortgagor has sued the mortgagee even after a valid tender made by the former has been refused by the latter or a deposit made by the former under Section 83, T. P. Act, has not been accepted by the latter. In both tches cases the relation of the mortgagor and mortgagee still subsists after the tender or deposit. The mortgagee does not become a trespasser from the moment of the tender, or from the moment that he receives the notice of the depsit and the analogy of those classes of cases, where it has been held that a suit for mesne profits against a trespasser lies, even after a suit for possession, for a period anterior to the date of the institution of the suit for possession, does not apply: Satyabadi Behara v. Harabati (1907) 34 Cal 223. After the tender or deposit the mortgagee still continues as a mortgagee if he is in possession; he does not become a trespasser. The only effect is that interest ceases to run and that a heavier burden in the matter of accounts is thrown on the mortgagee: Sub-section 84 and 76, Clause (b), T. P. Act. For these reasons, I hold that the first and second reasons given by the learned Small Cause Court Judge are wrong.
7. The third reason given by the learned Judge also does not appeal to me, In the passage of the judgment pronounced by the learned Subordinate Judge in Appeal No. 66 of 1934 which I have qouted above, there is a clear direction that the mortgagee is to have the profits of the land up to Augrahayan 1341 B.S., without any question of his being made liable to account for the same in future. I am not convinced that therein the learned Subordinate Judge had violated any clear provision of law. He had jurisdiction to settle the rights of the parties in that suit and has settled it in the aforesaid manner. Even if he had gone wrong on a point of law, which I do not say he has, his decision on the point is final between the parties. It is now settled by a Full Bench of this Court and by the Judicial Committee of the Privy Council that an erroneous decision on a point of law is res judieata between the parties: Tarini Charan v. Kedar Nath 1928 Cal 777; Bindeswari Charan Singh v. Thakur Bagoswari Charan Singh 1936 P C 46. For this reason, I make this Rule absolute and discharge the decree passed by the Court below. The result is that the plaintiff's suit is dismissed. The defendant must have his costs of the Court below and of this Court. Hearing fee assessed at one gold mohur.
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