CHELIKANI VENKATARAYANIM GARU Vs. SRI RAJAH VATSAVAYA VENKATA SUBHADRAYAMMA JAGAPATHI BAHADUR GARU, SENIOR WIDOW

JUDGEMENT

(1.) This appeal is in a suit to enforce a usufructuary mortgage and the question that is argued before us is, whether there was a valid tender of the amount due on the mortgage on 17th January 1899 or whether the respondents dispensed with the necessity for such a tender. On either ground the claim is that interest ceased to run from the date mentioned. Mr. Narayanamurthi who has argued the case for the appellants before us conceded and we think rightly, that what happened could not be stated to amount to a valid tender within the meaning of Section 84 of the Transfer of Property Act. The so-called tender really depends on what the second appellant wrote to the respondent on the date in question. That letter is Ex. Va and there he asked the mortgagee to give him an account of what is due to him and expressed his willingness to pay what is due to the mortgagee. In his reply the mortgagee stated that under the terms of Exihibit A, the deed of mortgage, he had acquired an absolute right to the property and therefore he was not bound to render any account to the appellants and refused to do so. He did however mention what was the amount that had become due on his mortgage. That amount was Rs. 3,19,946. It is argued that that would be the correct amount upon the terms of the mortgage, that is, calculating interest at the rates specified therein. This or any amount was never actually tendered by the appellants nor was it sought to be deposited in Court. In fact, before the institution of the suit, no deposit or tender was made, and even now after decree, no portion of the amount due to the respondents has been paid. The mere expression of willingness on the part of a debtor to pay a debt cannot possibly amount to a tender within the meaning of the law. In fact as we have said Mr. Narayanamurthi did not contend so far. But he has strongly urged upon us that inasmuch as the respondent put forward the allegation that he had acquired an absolute right to the property and therefore the appellants were not entitled to redeem him, it must be taken in law to amount to a dispensation of tender.

(2.) On this point we have been referred to a number of Indian and English cases dealing with contracts for sale or other cases of reciprocal contracts : for instance, Dayahhai Dipchand v. Dulla-bram Dayaram (1871) 8 Bom. H.C.R. (A.C.J.) 133 The Owners of the Norway v. Ashburner (1865) 3 M.P.C. (N.S.) 245. But the principle laid down in those cases is that where there are reciprocal promises and one of the promisees waives or dispenses with the performance of the promise made to him, he cannot afterwards put forward the non- performance of that promise as an answer to a suit for damages. But as regards the question whether the interest on a debt ceases from the date of tender or deposit, that class of cases depends upon the provisions of the Transfer of Property Act and upon a different principle. That Act lays down the conditions relating to a valid tender and valid deposit. It nowhere says that even if a valid tender has not been made, interest will cease to run if the mortgagee happens to set up a right to the property in himself. If the argument of the appellants were well founded, the position would be this. In every case where the mortgagee in good faith as in this case asserts that he has acquired an absolute right to the property, the. mortgagor or the person who has purchased the equity of redemption by reason of that fact alone would be exempted from payment of interest provided he has expressed his willingness to pay the debt. No authority whatever has been cited in support of such a proposition which in our opinion, is altogether untenable. We have been referred to a Privy Council decision in Harendra Pal Rai Chowdhri v. Maharani Dasi (1901) I.L.R. 28 C. 557. There what happened was that under the contract between the parties the mortgagee engaged to appraise the mortgaged property if there was a proper negotiation for the sale of that property and it was brought to his notice. There was in fact a bona fide offer to purchase the property which was brought to the notice of the mortgagee in that case and he was asked to say whether he would appraise the property and fix the value. He refused to do so and in consequence the mortgagor was unable to find a purchaser for the property and repay the mortgage amount. Their Lordships held that the mortgagee having rendered impossible the sale of the property by the mortgagor by which the latter would have been in a position to repay the debt, the matter stood as if it was a case of tender . Mr. Narayanamurthi has attempted to build an argument upon this phrase to the effect that their Lordships treated the case as one of a tender. But we do not think that there is any warrant for such an interpretation. There was no case of tender there and the Judicial Committee merely cited the case of a tender only by way of analogy. The other case referred to Gopeswar v. Jadab Chandra (1915) 22 C.L.J. 352 stood apparently on the same footing and none of those cases support the broad proposition which has been contended for before us on behalf of the appellants. We therefore hold that what happened between the appellants and the respondent in 1899 did not have in law the effect of making interest cease to run from that date. The Subordinate Judge also finds upon the evidence that in fact that 1st appellant had not the necessary amount at his disposal on the date of Exhibit V (a). He is no doubt a large landlord with an income of about Rs. 40,000 a year. But the evidence does not show that he had on the date in question the amount which would be required to discharge the mortgage debt at his disposal. He was obliged to borrow even small sums of money and sometime after 1899 he got considerably involved in debt. He swore in the witness box that he had Rs. 1,50,000 in his chest. The Subordinate Judge had disbelieved that evidence and we think rightly. If he had anything like that amount with him at the time, his account books would have been the best evidence to show it. He must have kept accounts which he has withheld from court and it was not the case of the 8th defendant, the principal appellant before us, that he had been negotiating to raise money still less that he had actually raised money in that way. We therefore accept the conclusion of the Subordinate Judge that if Ex. Va could be construed as an offer to pay it was not a bona fide offer in the sense that the appellants had the means of making the payment at the time. It may be pointed out that the 8th defendant bought the bulk of, the mortgaged properties for Us. 2,40,000 while on 17th January 1899, the amount payable to the mortgagees was Rs. 3,00,000. That also supports the finding of the Subordinate Judge that the so-called offer in Ex. V (a) if offer it can be called at all was really not bona fide, for we are not prepared to hold that the 5th defendant was able and willing to pay that amount on the date in question.

(3.) The 3rd point which has been raised before us relates to costs. The Subordinate Judge has given a personal decree against defendants 3, 8 and 12 for the entire costs. As regards the conduct of the suit we think the Subordinate Judge was right in saying that the way in which the defence was conducted was vexatious. Defendants 3, 8 and 12 have been rightly made liable to pay the costs finally. But we do not think that they ought to be made personally liable for the costs relating to the stamp duty. So, that amount must be deducted from the amount of costs for which defendants 3, 8 and 12 have been made personally liable. In other respects, the decree of the Subordinate Judge is confirmed.