2. The respondent filed the Original Petition and
3. The respondent filed the Original Petition under
with interest and expenses and release the title deed.
4. The petitioners pleaded the following:-
5. The trial Court raised the following points:-
6. The trial Court came to the following
7. The learned counsel for the petitioners made
8. The learned counsel for the respondent
(3) When the mortgager deposited the mortgage amount
with interest and charges under Section 83 of the
Transfer of Property Act, the mortgagee's right over the
property ceased to exist.
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(4) The Court below rightly resolved the dispute between
the parties by way of adjudication.
9. It is advantageous to extract the statutory
provision. Section 83 of the Transfer of Property Act
reads thus:-
"83. Power to deposit in Court money due on mortgage
At any time after the principal money payable in respect of
any mortgage has become due and before a suit for
redemption of the mortgaged property is barred, the
mortgagor, or any other person entitled to institute such suit,
may deposit, in any court in which he might have instituted
such suit, to the account of the mortgagee, the amount
remaining due on the mortgage.
Right to money deposited by mortgagor.--The court shall
thereupon cause written notice of the deposit to be served on
the mortgagee, and the mortgagee may, on presenting a
petition (verified in manner prescribed by law for the
verification of plaints) stating the amount then due on the
mortgage, and his willingness to accept the money so
deposited in full discharge of such amount, and on depositing
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in the same Court the mortgage-deed and all documents in his
possession or power relating to the mortgaged property, apply
for and receive the money, and the mortgage-deed, and all
such other documents so deposited shall be delivered to the
mortgagor or such other person as aforesaid.
Where the mortgagee is in possession of the mortgaged
property, the court shall, before paying to him the amount so
deposited, direct him to deliver possession thereof to the
mortgagor and at the cost of the mortgagor either to re-
transfer the mortgaged property to the mortgagor or to such
third person as the mortgagor may direct or to execute and
(where the mortgage has been effected by a registered
instrument) have registered an acknowledgment in writing
that any right in derogation of the mortgagor's interest
transferred to the mortgagee has been extinguished. "
10. Section 83 of the Transfer of Property Act is a
modified form of the provision in the Bengal Regulation I
of 1798 enabling the mortgagor to redeem by payment
into Court. The amount deposited under Section 83 of
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the Transfer of Property Act in the Court is treated as a
tender.
11. The mortgagor may, after the mortgage money
has become payable and before his right of redemption is
barred, (i) pay or tender out of Court at a proper time and
place the amount due on the mortgage, or (ii) deposit the
same in Court under the present Section, or (iii) bring a
regular suit for redemption. All three courses being at
one and the same time open to the mortgagor, he is at
liberty to adopt one or the other, or all of them
successively. The Section provides a speedy and summary
remedy for redemption to the mortgagor, who is
empowered to tender by depositing the sum he calculates
to be due on the mortgage. The Court is, thereupon, to
cause a written notice of the deposit to be served on the
mortgagee, who may withdraw the amount deposited for
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him, upon giving up the mortgage-deed to be made over
to the mortgagor. Having surrendered his muniment of
title, the mortgagee has no more right to remain in
possession of the property, which the Court may order
him to surrender before he is permitted to withdraw the
deposit. The person depositing under this Section cannot
introduce any litigious contentions, which the Court in
the exercise of its summary jurisdiction cannot enquire
into. "The Section, as it is, confers upon the mortgagor an
exceptional privilege which other debtors do not enjoy, of
paying the amount of their debt in Court, even when his
creditor has not brought any suit against him, and must
not be further enlarged in its operation.
12. Section 83 of the Transfer of Property Act
intends to ensure that the mortgaged properties are
released to the mortgagor without driving him to institute
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a suit for redemption. This is possible only if two
ingredients are satisfied namely:-
(a)The mortgagor deposits the amount in the Court prior
to the institution of the application or petition, and (b) on
receipt of notice from the Court, the mortgagee expresses
his willingness in unequivocal terms; that is, willingness
to receive the money without any fetters or conditions.
Only when these requirements are satisfied does the
Court get the jurisdiction to allow the petition.
13. The Privy Council in Forbes v. Ameeroonissa
Begum [1865 (10) MIA 340 (PC)] held that under the
Bengal Regulation XVII of 1806, the functions of the
Judge under the relevant Section were purely ministerial.
14. In Cherukuri Ramakrishniah v. Sri Krushi
Vidyalaya Sangam [1944 (2) MLJ 284], the Madras High
Court held that the question of the correctness of the
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amount could not be gone into as such an enquiry was
beyond the scope of Section 83 of the Transfer of
Property Act. This view was followed by the Madras High
Court in Govindaswami v. R. Bakkim [1983 (2) MLJ
207] and the Orissa High Court in Chandramani
Pradhan v. Hari Pasayat [AIR 1974 Ori 47]. In
Rajakrishna Menon v. Sundaram Pillai [1963 KLT
1031], in a petition filed under Section 83 of the Transfer
of Property Act, this Court considered a question as to
whether the petitioner was entitled to future interest
after the deposit. It was a case where the suit was filed
on a hypothecation bond for realisation of the principal
and interest due as per the bond. After the institution of
the suit, the defendant filed an application under Section
83 of the Transfer of Property Act. While deciding the
petition under Section 83 of the Transfer of Property Act,
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this Court held that once the suit is filed, the amount due
on the mortgage can be ascertained only after the decree
is passed and the Court had no jurisdiction to decide on
the merit of the disputes. The Court held that the deposit
made under Section 83 was invalid.
15. In Balakrishnan v. Bhaskaran [1987 (2) KLT
733], a Division Bench of this Court considered the
question whether deposit of amounts under Section 83 of
the Transfer of Property Act would extinguish the
mortgage. The Division Bench held thus in paragraph 6
of the judgment.
"6. As there was no possibility of getting this right
extinguished by act of parties, the respondent decree
bolder first sought relief under S.83 T.P. Act and
accordingly deposited the amount remaining due on the
mortgage as on that date and sought an order directing
notice to the petitioner. The petitioner herein, instead of
receiving the money, disputed the correctness of the same,
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it is argued on behalf of the petitioner whatever that be
and consequently the petition was dismissed. It is by now
well established that the making of a deposit of the
mortgage money under S.83 does not ipso facto extinguish
the mortgage where the mortgagee has refused to accept
the deposit. To put it differently if the deposit is not
accepted, the mortgage does not get extinguished; that
means the parties continue to have the relationship of
mortgagor and mortgagee. The mortgagee in such
circumstances, holds the property as a kind of trustee for
the mortgagor and as such accountable to the latter for
profits. In other words the mortgagee continues to be a
mortgagee with the statutory liability to account for the
profits received by him from that date. In such
circumstances it is for the mortgagor, if he wants to
redeem the mortgage, to bring a suit for the enforcement
of his legal rights and unless and until he does so
successfully, the mortgage continues to subsist. (See
Rukhminibai v. Venkatesh, ILR 31 Bom. 527 and
Harbans v. Ramdhari (AIR 1960 Pat. 51)."
16. In Bishwanath Prasad Singh v. Rajendra
Prasad And another [AIR 2006 SC 2965: 2006 KHC
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608], the Supreme Court constructed the scope of
Section 83 of the Transfer of Property Act. The suit
therein was one for a declaration that the transaction
entered into between the parties was, in fact, a
transaction of usufructuary mortgage and for a further
declaration that the said transaction stood redeemed
under the Bihar Money Lenders Act, 1974. An
application under Section 83 of the Transfer of
Property Act was filed by the plaintiff in the suit. The
defendants resisted the application, contending that
the transaction in question was not a mortgage. The
Court permitted the deposit to be made. The matter
went up to the Supreme Court. The question raised
before the Supreme Court was whether the
subsequent suit for declaration was barred by res
judicata in view of the order passed by the civil Court
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in the miscellaneous application accepting the deposit.
It was argued that while entertaining the application
under Section 83 of the Transfer of Property Act, the
Munsiff Court was exercising its limited jurisdiction
and the findings of such a Court of limited jurisdiction
would also operate as res judicata. Following Union
of India v. Pramod Gupta [(2005) 12 SCC 1] the
Supreme Court held that the principle of res judicata
has no application in a case where the judgment or
order had been passed by a Court having no
jurisdiction.
17. Considering the rival contentions, the
Supreme Court in paragraphs 37 and 38 of the
judgment in Bishwanath Prasad Singh v. Rajendra
Prasad And another, observed thus:-
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"37. The provision merely permits the mortgagor to
deposit the mortgage amount. Even in a case where
such deposit is made, in the event the mortgagee
refused to accept the deposit, the mortgagor would have
no option but to institute a suit for redemption relying
on the mortgage money deposited. The respondent did
not file a suit for redemption. It may be that the
appellant objected to the said deposit but despite the
fact that the purported mortgage amount was allowed to
be deposited, the same being not binding upon the
mortgagee as he could not be compelled to accept the
same, the question of applying the principles of res
judicata would not arise. (See Chandramani Pradhan
v. Hari Pasayat ( AIR 1974 Ori 47).) By reason of such
deposit the status of the parties is not altered. For filing
a suit for redemption by the mortgagor, deposit under
S.83 is not a precondition.
38. It is well known that the function of a court in terms
of S.83, Transfer of Property Act is procedural in
nature."
18. The Supreme Court categorically held that
in an application to record deposit under Section 83 of
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the Transfer of Property Act, the question of the
correctness of the amount could not be gone into and
that such questions are beyond the Scope of Section
83 of the Transfer of Property Act, and therefore, it
could not be argued that anything was heard and
finally decided in a proceeding under Section 83 of the
Transfer of Property Act so as to attract the bar of res
judicata.
19. In Vasanthakumari and Others v.
Sarojini and others [2008 (1) KLT 451: 2008(1) KHC
421], a Single Bench of this Court has elaborately
considered the scope of Section 83 of the Transfer of
Property Act and held thus:-
"12. ...........The petitioners wanted the charge to
be redeemed and, therefore, filed the Original
Petition with a prayer to permit them to deposit the
amount payable under the terms of the settlement
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deed. In view of the provision in S.100 that the
provisions of the Transfer of Property Act relating to
simple mortgage shall apply to the charge, the
petitioners could file the Original Petition under S.83
of the Transfer of Property Act. Though the petition
does not state that it was filed under S.83 of the
Transfer of Property Act, in sum and substance, the
petition is under S.83 as the averments in the petition
and the relief prayed for in the petition would
disclose. In order to record the deposit under S.83 of
the Transfer of Property Act or to record the same by
invoking S.151 of the Code of Civil Procedure, the
Court is not expected to decide the disputes between
the parties relating to the genuineness or otherwise
of the document or the respective rights and
liabilities of the parties or the entitlement of any
party to receive any amount or as to the sufficiency of
the amount or any other matter which is required to
be settled in a properly constituted civil suit. The
jurisdiction of the Court in disposing of such an
Original Petition is only procedural and ministerial in
character as held by the Supreme Court in 2006 KHC
608 : JT 2006 (3) SC 221 : AIR 2006 SC 2965 : 2006
(4) SCC 432. The Court need only look into the
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document and ascertain whether the petitioners are
liable to pay certain amounts to the respondents as
per the terms of the said document. If the Court is
satisfied that there is such a liability, permission can
be granted to the petitioners to make the deposit.
The Court shall not in such case decide the question
whether the settlement deed is genuine or whether
the donor had the required sound disposing state of
mind at the time of execution of the document, or
whether the document is vitiated by fraud, undue
influence or coercion. Such questions are alien to a
petition under S.83 of the Transfer of Property Act or
one under S.151 of the Code of Civil Procedure to
record the deposit. Once the deposit is recorded, the
liability of the person bound under the document to
discharge the liability would come to an end. The
petitioners cannot be compelled to indulge in a suit
on title or a suit for declaration, when according to
them, there is no cloud on their title or when they do
not want any declaration in respect of their title. It is
not for the Court to compel a party to institute a suit.
When a petition of the nature now under
consideration is filed, the only requirement is to
ascertain whether the petitioners are liable to pay the
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amount and whether they are prepared to make the
deposit. After service of notice on the respondents,
the Court can record the deposit and relegate the
parties to agitate all their contentions and the
defence in a properly constituted civil suit."
20. In the present case, even when the
petitioner resisted the genuineness of the averments
raised in the petition and expressed their
unwillingness to receive the money, contending that
various other charges have been created on the
property based on the financial transactions between
the respondent and Kalpetta branch of the petitioner's
institution, the Court proceeded to decide the dispute
between the parties. The exercise of recording the
findings considering the dispute between the parties is
beyond the jurisdiction, and, hence, a nullity.
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Resultantly, the Civil Revision Petition is allowed.
The order dated 21.12.2019 passed by the Court of
Munsiff, Koyilandy, in O.P.No.1/2019 stands set aside.
Sd/-
K.BABU JUDGE
kkj
