ASARFI MAHASETH Vs. RAM SWAROOP PANJIAR

JUDGEMENT

(1.) This appeal is directed against the judgment and decree of the Additional Subordinate Judge III. Darbhanga, affirming those of the Munsif II, Darbhanga. The suit was filed by the plaintiffs-respondents first part for redemption of some lands which were mortgaged by Jhameli Panliar, father of respondents 1 to 3, by a mortgage deed dated the 25th January, 1928, in favour of the defendant-appellant. Both the Courts below have held that the plaintiffs were entitled to redeem the mortgaged property.

(2.) Two points have been urged in this second Appeal. In the first place it has been contended that the redemption suit was not maintainable, because the mortgage money was not tendered or deposited as contemplated under Section 83 of the Transfer of Property Act (hereinafter referred to as the Act) before the institution of the suit. Mr. Lala Deokinandan Prasad, learned Counsel appearing on behalf of the appellant, has referred to Section 60 of the Act which, inter alia, provides that at any time after the principal money has become due, the mortgagor has a right, on payment or tender, at a proper time and place, of the mortgage money, to require the mortgagee to deliver the mortgagor the mortgage deed and all documents relating to the mortgaged property which are in possession or power of the mortgagee. Learned Counsel submitted that the expression 'on payment or tender' in the section clearly indicates that payment or tender is a condition precedent to the institution of the suit, and since, in the instant case, no payment or tender had been made, the suit was not maintainable. Therefore, according to him, both the Courts below erred in holding that the suit was maintainable at the instance of the plaintiffs.

(3.) In my opinion, the contention of learned Counsel is not acceptable. In Raghunandan Rai v. Raghunandan Pande, AIR 1921 All 353 a Full Bench of the Allahabad High Court had occasion to consider the provision contained in Section 60 of the Act, where a similar point arose before their Lordships for consideration. Their Lordships observed (at page 355) as follows :