Report No. 70
Provisions as to Service of Notice and Tender
Substantive rights arising out of mortgages and charges, and remedies applicable thereto have now been disposed of Certain provisions of a procedural character follow. Two sections-section 102-deal with matters of detail concerning the service of notice and tender.
88.2. Section 102-Service or tender on or to agent.-
According to section 102, where the person on or to whom any notice or tender is to be served or made under this Chapter does not reside in the district in which the mortgaged property or some part thereof is situate, service or tender on or to an agent holding a general power-of-attorney from person or otherwise duly authorised to accept such service or tender shall be deemed sufficient.
Where no person or agent on whom such notice should be served can be found or is known to the person required to serve the notice, the latter person may apply to any Court in which a suit might be brought for redemption of the mortgaged property, and such Court shall direct in what manner such notice shall be served, and any notice served in compliance with such direction shall be deemed sufficient:
Provided that, in the case of a notice required by section 83, in the case of a deposit, the application shall be made to the Court in which the deposit has been made.
Where no person or agent to whom such tender should be made can be found or is known to a person desiring to make the tender, he latter person may deposit, in any Court in which a suit might be brought for redemption of mortgaged property, the amount sought to be tendered, and such deposit shall have the effect of a tender of such amount.
Section 102 generally follows the corresponding English statutory provision-previously, section 67 of the Conveyancing Act, and now section 196 of the Law of Property Act, 1925. The Law Commissioners observed that these provisions, though novel, were suggested by difficulties which had occurred in practice.
The significance of section 102 may be briefly explained. It may be recalled that tender of the mortgage money is contemplated by section 60 which deals with the right of the mortgagor to re deem. So far as is relevant, section 60 provides that the mortgagor has a right, on payment or tender of the mortgage money, to require the mortgagee to deliver to the mortgagor the mortgage deed etc. and to do other acts referred to in that section in connection with the right to redeem.
Under section 69, notice is to be given to the mortgagor before the mortgagee can exercise his power of sale under that section. Section 83 provides for notice being given to the mortgagee of the deposit of the mortgage amount in court. In view of these and other similar provisions relating to notice and tender, it was considered necessary to lay down certain matters of detail which is what section 102 seeks to do.
The section does not seem to need any change.
88.4. Section 103-Notice, etc., to or by person incompetent to contract.-
Section 103 reads-
"103. Where, under the provisions of this Chapter, a notice is to be served on or by, or a tender or deposit made or accepted or taken out of Court by any person incompetent to contract, such notice may be served on or by or tender or deposit made, accepted or taken, by the legal curator of the property of such person;
but where there is no such curator and it is requisite or desirable in the interests of such person that a notice should be served or a tender or deposit made under the provisions of this Chapter, application may be made to any Court in which a suit might be brought for the redemption of the mortgage to appoint a guardian ad litem for the purpose of serving or receiving service of such notice, or making or accepting such tender, or making or taking out of Court such deposit, and for the performance of all consequential acts which could or ought to be done by such person if he were competent to contract;
and the provisions of Order XXXII in the first Schedule to the Code of Civil Procedure, 1908 shall, so far as may be, apply to such application and to the parties thereto and to the guardian appointed thereunder."
88.5. Section 103-Recommendation as to "legal curator".-
Certain observations must be made in regard to the expression "legal curator" used in section 103-an expression perhaps suggested by the Succession (property Protection) Act, 1841, previously in force. It is well-known that while the Civil Procedure Code deals with the appointment of guardians for the purpose of litigation, that Code is not concerned with the appointment of guardians for non-contentious legal business. Guardians of property are appointed under the general law, including the Guardians and Wards Act, 1925. The precise question to be considered is-what is the exact scope and meaning of the expression "legal curator" as employed in section 103.
On principle, it would be a reasonable construction to place that a legal curator within section 103 is a person appointed under any provision of law to protect this property of any person.1 At the same time, it seems to be necessary that the person must not be a mere natural guardian, such as a father or a mother of a Hindu minor.2 Some kind of appointment by the Court is necessary.3
1. Cf. Wharton Law Lexicon, 14th Edn.
2. Shea Saran v. Ram Ligon Das, AIR 1922 All 355 (356).
3. Compare, 1903 ILR 27 Born 23 (29).
88.6. Deceased person.-
Having regard to this position, it seems to be desirable to give a definite meaning to the expression. It is also desirable to cover cases where there is no one to look after the estate of a deceased person.
88.7. Expression "requisite or desirable".-
We may note that section 103 uses the expression "requisite or desirable" (in the middle of the section). In a Bombay case,1 it was suggested by counsel in the course of the argument that these words obscure the meaning of the section. Jenkins C.J. observed that on a fuller consideration he was of the opinion that this was not so, and that the words are designedly used in reference to distinct events.
He put as illustration two situations, namely, the mortgagee is a minor and the mortgagor decides to proceed under sections 83 and 84 (deposit of mortgage money in court). In such a case, it is requisite that notice should be served under section 103. On the other hand, where the mortgagor is an infant and those entrusted with the care of his affairs consider that the mortgage money should be tendered or paid, then it is desirable in the interests of the minor mortgagor that notice should be served under section 103.
1. Pandurang v. Mahadji, 1903 ILR 27 Born 23 (28), followed in AIR 1959 Pat 457 (459).
In view of what is stated above, we recommend revised section 103 as follows:-
"103. (1) Where, under the provisions of this Chapter, a notice is to be served on or by, or a tender or deposit made or accepted or taken out of Court by, any person incompetent to contract or in relation to the property of a deceased person, such notice may be served on or by or a tender or deposit made, accepted or taken by, the legal curator of the property of such person.
(2) Where there is no such curator and it is requisite or desirable in the interests of such person incompetent or contract, that notice should be served or a tender or deposit made under the provisions of this Chapter, application may be made to any Court in which a suit might be brought for the redemption of the mortgage to appoint a guardian ad litem for the purpose of serving or receiving service of such notice, or making or accepting such tender, or making or taking out of Court such deposit, and for the performance of all consequential acts which could or ought to be done by such person if he were competent to contract; and the provisions of Order XXXII in the first Schedule to the Code of Civil Procedure, 1908 shall, so far as may be, apply to such application and to the parties thereto and to the guardian appointed thereunder.
Explanation.-For the purposes of this section, 'legal curator means a person appointed under any provision of law to protect the-property of any other person or vested under any such provision with authority we look after the property of any other person, and includes-
(a) the guardian of the property of a ward appointed under the Guardians and Wards Act, 1890;
(b) a Court of Wards in charge of the property of a disqualified proprietor;'
(c) the manager of the estate of a lunatic appointed under the Indian Lunacy Act, 1912; and
(d) a curator appointed by the court to take charge of the estate of a deceased person under part VII of the Indian Succession Act, 1925."