BALDEO PANDE Vs. MUHAMMAD ALI

JUDGEMENT

(1.) THIS is the defendants appeal arising out of a suit for redemption. The mortgage-deed is dated Miti Asadh Badi 7th, Sambat 1918, corresponding with the 29th of June, 1861. It was for a term of five years certain and it was an agriculturist s mortgage, in which the parties laid down a condition that the right to redeem should he exercised only in the month of Jeth of any year. The courts below have decreed the suit. The defendants raised a plea that the plaintiff had made no payment or offer of payment before bringing his suit. The plaintiff in paragraph 5 of the plaint stated that on the 18th of June, 1913, he had expressed his readiness to redeem the property and offered to pay the mortgage money to the defendants, but the Litter declined to allow redemption. In paragraph 6 of the plaint he stated that the cause of action had "accrued to him on the 18th of June, 1913, the date of the mortgagee s refusal. The courts below have found as a fact that the plaintiff had not made any tender of the mortgage money at anytime to the mortgagees, but in spite of that they proceeded to give the plaintiff a decree allowing redemption of the mortgaged property in the month of Jeth following the date of the decree. The defendants have appealed, and the plea raised on their behalf is that in view of the fact that the plaintiff had at no time offered to pay the mortgage debt prior to the institution of the suit he had no cause of action and the suit ought to have been dismissed. Reliance is placed on the ruling in Bansi v. Girdhari Lal Weekly Notes 1894 p. 143. The two cases are parallel. In that case, as in the present, there was an agricultural mortgage and the parties had laid it down in clear terms that the mortgage was redeemable only in the month of Jeth. It is unnecessary to give the reasons why such a term is entered in this class of mortgage. Section 60 of the Transfer of Property Act lays down what a right of redemption is. It clearly shows that the right to recover possession does not arise until the mortgagor has at the proper time and place paid or tendered the mortgage money it is contended that this section was not in force at the date of the mortgage, and that the principles of justice, equity and good conscience should be employed for the decision of this case. THIS would seem to be an argument that Section 60 of the Transfer of Property Act is not based on principles of justice, equity and good conscience. It clearly is based on such principles, and it seems even as a matter of business or common sense that a mortgagor has no right to institute a suit for redemption, unless and until he has tendered to the mortgagee the debt due to the latter, or at least the amount which he considers to be due to the latter, The point before us is clearly covered by the decision in Bansi v. Girdliar Lal Weekly Notes 1894 p. 143, which was subsequently followed by this Court in Hafiz Muhammad Abdul Rahim v. Lala Tulshi Prasad S.A. No. 1721 of 1903. The facts of both these cases are like those of the present case. It is clear, therefore, that the plaintiff s suit was brought without any cause of action and ought to have been dismissed. We, therefore, allow this appeal, pet aside the decrees of both the courts below and dismiss the plaintiff s suit with costs in all courts.