DONDA BHAGAVANTULAYYA DHORA Vs. ADAPA VENKANDHORA

JUDGEMENT

(1.) This appeal involves two questions. The first question is whether the mortgagors of certain immovable properties were entitled to redeem the mortgage before the 10 September, 1928. The second question is whether a tender of Rs. 760 is, to be regarded as invalid because it fell short of the amount due by Rs. 4. The mortgage was created by the first, second and third defendants in favour of Donda Godavarayya, the appellants father, on the 10 September, 1926. The mortgagors covenanted to repay all the principal and interest payable under the deed by the 10 September, 1928. In the month of June, 1927, the fourth defendant, who. is now the first respondent, tendered to the mortgagee the sum of Rs. 760. The first respondent had purchased the equiry of redemption and therefore stood in the shoes of the mortgagors. In tendering the sum of Rs. 760 the first respondent did so in the full belief that this was the correct Amount. There had been a miscalculation, but this was not discovered at the time. The mortgagee refused to accept the tender, not because the amount offered was Rs. 4 short of what was then due under the mortgage, but because he maintained that the terms of the mortgage deed precluded the first respondent from making any tender until the 10 September, 1928. The mortgagee at no time questioned the correctness of the amount which was offered to him and a letter written by him to the first respondent on the 4 July, 1927, and his own testimony in the case clearly indicates an unequivocal refusal to accept anything less than an amount representing the principal and interest calculated up to the 10 September, 1928. It is not suggested that the first respondent in making the tender was unwilling to pay the full amount then due.

(2.) In 1933 the appellants father instituted a suit in the Court of the District Munsif of Chodavaram to enforce payment of a sum of Rs. 1,700 which he claimed to be owing in respect of the mortgage. The defendants pleaded that by reason of the tender in the month of June, 1927, interest had ceased to run from the date of the tender and denied that there was anything more than Rs. 769 due which amount was deposited in Court. The District Munsif accepted the plea that there had been a valid tender and directed that the Rs. 769 should be paid to the plaintiff. Accordingly he dismissed with costs the claim for the balance of the Rs. 1,700. The appellants appealed to the Subordinate Judge of Vizagapatam, who held that the tender was invalid and passed a decree for the full amount claimed, less a small reduction in the amount of interest. The first respondent appealed to this Court and the appeal was allowed by Wadsworth, J., who restored the decree of the District Munsif. The present appeal is from the judgment of Wads-worth, J., under Clause 15 of the Letters Patent.

(3.) The learned Judge held that the words "we shall pay all the principal and interest payable under this document by the 10 September, 1928" to be found in the deed meant payable on or before that date, and we have no hesitation in concurring in this opinion. Before the learned Judge and in this Court several cases have been quoted, but none is really in point. The meaning of the word by is not referred to in any of them. If the word by is to be given here its ordinary meaning the document stipulates that the mortgagors shall pay on or before that date. The option was in them. In our opinion, it is not feasible to put any other interpretation on the word.