Ayyakutti Markondan vs Periyasami Kavundan and Another

Coutts Trotter, J.—In this case the plaintiff had created two incumbrances on his land--one a usufructuary mortgage and the other a

hypothecation. The plaintiff being desirous of paying off his mortgage and recovering his property availed himself of the procedure u/s 83 of the

Transfer of Property Act, and paid the amount due under the mortgage namely Rs. 800 into Court on the 8th October 1908. The first defendant

declined to receive that amount and claimed that the plaintiff was bound to deposit also the amount due under the hypothecation bond. Accordingly

the plaintiff deposited the sum of Rs. 676-7-6'' in respect of the hypothecation bond and tendered the two sums to the first defendant. A notice

was sent to the first defendant who put in no appearance in Court and did not receive the money. The question which arises is this: the

hypothecation bond was in respect of principal sum of Rs. 300 with interest at Rs. 1-6-0 per cent, a month and also provided that if it was not

paid off within the prescribed period, a year, then simple and compound interest at Rs. 2 per cent should run from the date of default Now the

plaintiff when he paid the money into Court u/s 83 of the Transfer of Property Act did not pay at the penal rate of interest, but he paid only

compound interest at the rate of Rs. 1-6-0 as from the date of default and when the Court came to determine what was due the Court held that the

amount was enough and that he had duly discharged the claim of the first defendant.

It has been contended before us that notwithstanding the fact that the amount paid in was the amount that was found due the payment and

tender ward bad oa the ground that it was not for debtor to speculate as to what reduction the creditor would accept or the Court would make

from the full letter of the bond, but that he must pay what is expressed to be due on the face of the instrument and get back any portion if he can. It

is not apparent and the respondent has not been able to suggest that there is any legal means by which he would be able to get it back. In support

of the proposition some English cases about tender were cited and among them was Searles v. Sadgrave (1855) 5 El. & Bl. 639. There in respect

of an entire debt of � 82 a tender was made of � 55-6-0 which was arrived at by deducting a sum of money due in respect of a cross-claim

between the parties. The Court held that the tender to be good must be of the whole debt in respect of which it was tendered and that the debtor

was not entitled to deduct the set-off from the amount of the debt. Reliance was further placed upon Venkatrama Aiyar Vs. Rangasami Aiyangar

and Others, . There it was held that where a tender was made of four-fifths of the mortgage amount where a partition was sought the tender was

bad because the parties were not agreed as to what the proper proportions of division would be if a partition were made, These cases seem to be

quite different in principle to the present and not in any way to cover it. The words of Section 83 of the Transfer of Property Act are quite clear

and they enact that ""the mortgagor or any other person entitled to institute such suit may deposit in any Court in which he might have instituted such

suit to the account of the mortgagee the amount remaining due on the mortgage."" Here the amount legally due was what the Court found it to be

and that was the amount which the plaintiff paid into Court. No question arises of any attempt to set off or retain any balance. That which the

plaintiff tendered was the debt and the whole debt as it was ultimately found to be and the fact that the instrument sought to provide for, and the

defendant sought to exact in accordance with it a larger sum does not in my opinion affect the result that what the plaintiff tendered, was the whole

amount which was due and owing by him. I am therefore of opinion that the interest ceased to run at any rate as from the date when both the

bonds were redeemed and paid off, namely, the 29th January 1909, and that as from that date the plaintiff should have mesne profits in respect of

the property. He sought to go further and claimed mesne profits as from the 9th October 1908, the date when he paid off the original mortgage for

Rs. 800. What he argued was that as he discharged the usufructuary mortgage-debt his right to mesne profits would accrue from that date as the

hypothecation bond would not entitle the mortgagee to possession. This seems really an ingenious attempt to get round the decision of the Pull

Bench given the other day (1st'' April 1915) in Subramania v. Balasubramanya ILR (1915) Mad. 927 which decides that a mortgagee is not

bound to be redeemed piecemeal. We are bound by that decision and its principle is fatal to the appellants'' contention.

Therefore the appeal is allowed and mesne profits will be decreed to the appellant as from the 29th January 1909 until delivery of possession

the amount of mesne profits will be determined by the Court of first instance. Bach party will give and take proportionate costs.

Kumakaswami Sastriyar, J.

I agree.