GOBIND SARAN AND DAN KUNWAR Vs. CHETAN DAS

JUDGEMENT

(1.) This appeal arises out of suit on foot of a mortgage. The appellant was a subsequent mortgagee of the mortgaged property, and he alleges that he tendered more than the amount which was actually due, and that, therefore, he should he relieved from the payment of interest subsequent to the alleged tender, and alto the costs of the suit. Admittedly the appellant did not deposit sufficient: he only deposited the sum of Rs. 2,346-14-0. The amount found actually due was Rs. 2,513-7-9. The appellant, however, relies upon a letter which he wrote offering to pay Rs. 2,743-3-0. If this letter can be regarded as a good tender, the appellant is entitled to succeed. We are clearly of opinion that the offer by letter was not a good tender within the meaning of Section 84 of the Transfer of Property Act. It is necessary that the money should have been actually produced, unless it could be shown that the person entitled to receive the money had waived this condition (see Wharton s Law Lexicon, 10th Ed., p. 747, and Fisher on Mortgages, 6th Ed., para. 1506). The same view has been taken by the Bombay High. I Court in the case of Kamaya Naik v. Devapa Rudra Naik (1898) I. L. R. 22 Bom. 440. It is thus clear that the letter cannot be regarded as a tender within the meaning of Section 84 of the Transfer of Property Act. The appellant is, therefore, not entitled to claim relief from the interest after the date of the letter.

(2.) With regard to the costs in the suit something might be said if. The appellant had taken steps to redeem the property immediately after he made the offer to pay it. He did not do so, and the plaintiff had to bring the present suit.

(3.) We accordingly dismiss the appeal with costs. We overrule the objections filed on behalf of the respondents. We extend the time for payment to six months from this date.