SUBRAMANIA AIYAR Vs. NARAYANASWAMI VANDAYAR ALIAS NARAYANASWAMI TEVAR

JUDGEMENT

(1.) This suit is for redemption. Although the question of the priority of the two mortgages in dispute is not easy to determine, I shall proceed on the same assumption on which the courts below have acted throughout The defendant obtained a mortgage of the A schedule properties in 1902. On a portion of these properties which are included in the B schedule there was a mortgage to one Bava Rowther. This Rowther brought a suit on his mortgage. The properties were put up to sale and the present plaintiff purchased the B schedule properties alone in 1908, subject to the defendant s mortgage. After he became the purchaser, the plaintiff presented an application under Section 8 of the Transfer of Property Act, in January 1912 calling upon the defendant to receive the amount due and to deliver up the title-deeds. This application is Ex. Q. In it petitioner states that he has paid into court the whole of the money due on the mortgage of the A. schedule properties, and asks the defendant to accept the amount and to give him possession of all the properties. Then he makes an alternative request to the effect that if the defendant is willing to receive the principal amount due in respect of the B. schedule properties alone, he may draw out that sum from court and give possession of the B. schedule properties. The reply of the defendant is Ex. R. I will use his own language in referring to it. In paragraph 2 he says, "As there is only an offer to pay only the proportionate amount, I am unwilling to accept the same. The petition does not state how much is the proportionate amount, and I am not willing to accept it." In paragraph 5 he says that he is willing to hand over the B schedule lands alone on receiving the whole of the amount of the mortgage due upon the A schedule properties. As the parties were not able to come to terms, the Subordinate Judge passed this order upon the plaintiff s petition : "Counter petitioner refuses to receive the money. Petitioner is referred to a regular suit. This petition is dismissed." Thereupon the present suit was brought. It is admitted that ever since the 9th January 1912 when the money was deposited by the plaintiff, it has remained in court and has not been drawn out by him. In the present suit the plaintiff asked that he should be allowed to redeem the B schedule properties on payment of Rs. 1800 and odd out of the sum of Rs. 3,650 deposited by him. The defendant raised various objections. He stated the same grounds which he put forward in the counter-petition. He also raised the plea that the plaintiff was only a benamidar and as such was not entitled to redeem the property. The Subordinate Judge found all the issues against the defendant and gave a decree to the plaintiff as prayed for. He found that the sum of Es. 1,852-3-10 mentioned in the plaint was the correct amount payable in respect of the B schedule properties. In appeal the District Judge confirmed the findings of the Subordinate Judge upon all the points except upon the question of interest and mesne profits. He held that the plaintiff was the real owner, and that the defendant is only entitled to the proportionate amount due upon the B schedule properties. But, he was of opinion that the tender was not a valid one and that consequently interest did not cease to run from the date of its deposit in court. That is the main point to be decided by us.

(2.) I am unable to agree with the District Judge on the question of the validity of the tender. Section 83 of the Transfer of Property Act says : "... The mortgagor or any other person entitled to institute such suit may deposit....to the account of the mortgagee the amount remaining due on the mortgagee." The second paragraph says : The court shall call upon the mortgage by notice to state the amount then due on the mortgage and his willingness to accept the money in full discharge of such amount. The section does not say that nothing more than the amount actually due should be paid. Of course if the money deposited is less than the amount payable to the mortgagee, the section will not be satisfied; but where more than the amount due is paid, I fail to see anything in the section to compel me to hold that the amount remaining due has not been paid. The English authorities to which I shall presently refer support the view I have taken. In the earliest case on the subject, Wadde s case (1601) 5 Coke s Rep. 114 the resolution as it is called, is thus stated : Resolution 3 : "A tender of more than is due is good." This decision was followed in Douglas v. Patrick (1790) 3 Term Rep. 683 by a Bench of four Judges including Chief Justice Kenyon. Ashurst, J., said: "There is no doubt that a tender of the greater includes the smaller sum". Buller and Grose, JJ., use almost the same language. These two cases and others were considered in Dean v. James (1883) 4 B. and Ad. 547. Pour Judges, of the King s Bench headed by Denman, C.J., accepted the correctness of the earlier decision. Littledale, J., said, "This case falls within the third resolution in Wade s case (1601) 5 Coke s Rep. 114 that if a man tenders more than he ought to pay, it is good, for Omne majus continet in se minue and the other ought to accept so much of it as is due to him." In Bevans v. Rees (1839) 5 M. and W. 306 the Chief Baron and three other Barons affirmed the proposition laid down in the earlier case. The Chief Baron said : "I am prepared to say that if the creditor knows the amount due to him and is offered a larger sum and without any objection on the ground of want of change makes a collateral objection, that would be a good tender." I may mention in this connection that there are some curious decisions in the English Courts to the effect that where a debtor on paying a larger sum asks the creditor to take what is due to him and return the balance with a change, that will not be good tender. I have not examined this matter very carefully to see on what principle this exception as regards a claim for change is based. Probably it is due to the idea that the creditor should not be put to any trouble in accepting a tender. I do not think that in this country where we are not obsessed by technicalities of such a narrow description, we shall be justified in accepting a rule that where a person tenders a larger amount and asks for a change, he should not have the benefit of the tender. Apart from this rule as to the claim for a change, the decisions I have referred to, affirm the principle which has been consistently laid down since Wade s case (1601) 5 Coke s Rep. 114. All these decisions had been given before the Transfer of Property Act was enacted. I feel no doubt that the framers of the Act had these decisions in their mind in drafting the rule as to tender and deposit. It is to be remembered that the rule as to tender is a part of the law as to the performance of a contract. Section 38 of the Contract Act which uses the term offer lays down three conditions. The offer must be unconditional; it must be made at a proper time and place; and the thing offered must be produced for inspection.

(3.) So far I have been able to see there are no provisions in any English Act relating to tender. The practice is referred to in Bullen and Leake, pages 710 and 711. There is an analogous provision in the Rules of the County Court.