Parma Singh and Another Vs Deo Nath Pathak and Others

Mootham, C.J.@mdashThis is an appeal by leave from a judgment and decree of a learned Judge dated the 3-2-59. The facts which are not in dispute can be stated shortly. The Appellant filed a suit Under Clause (c) of Section 202 of the UP ZA and LR Act for the ejectment of the Respondents from certain agricultural plots mentioned in Lists A and B in the plaint. The plots in List A had been mortgaged with possession to the Respondents by the predecessor-in title of the Appellant by a deed dated 13-7-1908 and the plots in List B had been similarly mortgaged by a deed dated 7-9-1909. It was stipulated in the first of these deeds that redemption will take place after the expiry of 51 years and in the second after 59 years. After the coming into force of the UPZA LR Act the Appellant became a bhumidhar and the Defendant became asamis. Section 202 so far as it is material provides that

Without prejudice to the provisions of Section 388, an asami shall be liable to ejectment from his holding on the suit of...the landholder...on the ground....

(c) that the mortgage has been satisfied or the amount due has been deposited in court.

2. The words "or the amount due has been deposited in court" were added to Clause (c) by UP Act XVI of 1953,

3. The suit was filed in 1956, that is before the expiration of either of the periods provided in the mortgage deeds for redemption. At the time of filing the sun the Appellant disposited in court the amount which would, have been payable to the Respondent had the mortgages been redeemable on that date. The suit was contested on various grounds, but the only defence with which we are concerned is that it was premature as the period of redemption had not expired. In the trial court the Plaintiff obtained a decree for possession and that decree was upheld by the lower appellate court. On second appeal however the judgment and decree of the lower appellate court was reversed and the Appellants'' suit was dismissed.

4. The learned Judge was of the opinion that the expression ''amount due'' in Clause (c) of Section 202 of the Act meant the amount payable for the redemption of the mortgage and that as in the appeal before him the Appellant''s right to redeem had not accrued there was no amount due and accordingly the deposit made by the Appellant did not satisfy the provisions of the section.

5. Now as Jessel, M.R. pointed out In re Stockton Malleable Iron Company LR 2 Ch. D. 101, (2) 9 Ch. App. 383 the words ''due'' may mean either owing or payable and what it means is to be determined by the context. The Master of Rolls adopted the observations of Mellish, L.J., in the earlier case of Ex parte Kemp, M.K. Ranganathan and Another Vs. Government of Madras and Others, in which the learned Lord Justice said with reference to Section 15(5) of the Bankruptcy Act, 1869;

Now, the words ''debts due to him'' are certainly words which are capable of a wide or narrow construction I think that prima facie and if there be nothing in the context to give them a different construction, they would include all sums certain which any person is legally liable to pay, whether such sums had become actually payable or not. On the other hand, there can be no doubt that the word ''due'' is constantly used in the sense of ''payable''; and if it is used in that sense, then no debts which had not actually become payable when the act of bankruptcy was committed would be included. Lastly, the expression ''debts due'' is sometimes used in bankruptcy proceedings to include all demands which can be proved against a bankrupt''s estate although some of them may not be structly debts at all.

6. The question, therefore which we have to determine is whether the words ''amount due'' appearing in Section 202(c) of the Act mean amount owing or amount payable and this must be determined by the context in which the words are used.

7. It is contended by the Appellants that the words ''amount due'' mean the amount owing, that is to say the amount which in would be payable to the mortgagee had the principal money become due on the date on which the deposite is made. For the Respondents it is argued that ''amount due'' means the amount payable under the mortgage and that nothing is payable and therefore nothing due, until the mortgagor''s right to redeem arises.

8. Clause (c) of Section 202 of the ZA and LR Act as originally enacted gave the mortgagor a right to eject the mortgage as an asami on the ground that the mortgage had been satisfied. Treating the satisfaction of the mortgage as meaning its redemption it was provided in Serial No. 25(iv) of Appendix III of the ZA and LR Rules that the period of limitation for a suit under Clause (c) was three years from the date of the redemption of the mortgage. This seems clearly to imply that the suit could not be filed until after the right to redeem had accrued. u/s 60 of the Transfer of Property Act it is well settled that a mortgagor''s right of redemption arises only when the principal money secured by the mortgage actually becomes payable, that is upon the expiration of the term for which the mortgage is created : M.K. Ranganathan and Another Vs. Government of Madras and Others, . In the present case the right of redemption does not, under the mortgage contract, accrue until the expiry of a specified number of years. As the period had not expired prior to the institution of the suit the latter was bound to fail unless, as urged on behalf of the Appellants, the addition of the words "or the amount due has been deposited in Court" at the end of the clause means that even if the mortgage has not been satisfied and irrespective of whether the right to redeem has accrued, the mortgagor is now entitled to eject the mortgagee as an asami by depositing in Court the full amount to which the mortgagee would be entitled had the mortgage been redeemable at the date. We however find difficulty in holding that the Legislature intended by the addition of these words to make a substantial departure from what we think to be the established law, to abrogate contracts between mortgagor and mortgagee relating to the time and manner of redemption or to deprive the mortgagee, without payment of any compensation, of his right to continue in possession for the agreed term. In interpreting the words added in 1953 we have to bear in mind the presumption that the legislature does not intend to make a substantial alteration in the law beyond what, it expressly declares M.K. Ranganathan v. Govt. of Madras and that it is always reluctant to interfere with contractual obligations. If, therefore, an alternative meaning can properly be given to the added words inserted by the amending Act which makes them consistent with the existing law that meaning is to be preferred. We cannot overlook that the provisions of serial No. 25(iv) in the Appendix of the Rules had been left unaltered and no words have been used in Clause (c) itself which entitled the Appellant to go back on the terms of the mortgage deed. The purpose of the amendment appears to be not to confer a new right on the mortgagor detrimental to the interest of the mortgagee but to relieve him, if his right to redeem has accrued, of the difficulty of having the amount payable by him on redemption ascertained by a process of accounting which may take a long time. If the right to redeem has accrued the mortgagor can now deposite what he thinks is payable to the mortgagee and if the amount so deposited is held to be sufficient the mortgage will stand satisfied and the mortgagee will become liable to be ejected.

9. It is not, therefore, we think correct (as suggested by the Appellant) that if the words "amount due" are interpreted as meaning "the amount payable" the interpretation would in effect render the concluding words of C). (c) redundant.

10. The legislature has used words which are ambiguous. It however appears to us that in asking this Court to interpret the words "amount due" as meaning "amount owing" the Appellants are attributing to the legislature an intention for which there is no warrant. On the other hand, if we interpret the words in question as meaning "the amount payable for the redemption of the mortgage" we are adopting a construction which involves no inconsistency with the existing law and which leaves the contractual obligations of the parties unaffected. That interpretation is, in our view, in accordance with the intention of the legislature.

11. We are therefore of opinion, though for somewhat different reasons, that the view taken by the learned Judge is right and this appeal must fail. It is accordingly dismissed with costs.