Nawal Kishore, J.
1. This is a defendant's second appeal and although the question, involved is short, the narration of a few facts appears to be indispensable in order to show how it emerges. The defendants are the mortgagees with possession of a half share in two shops, the mortgage having been effected in their favour on 19th of March 1920 by Lalchand for Rs. 600/-. One of the terms of the mortgage was that interest and rent will be equal and will be adjusted against each other. On 19th of August 1930, Lalchand sued for possession of the shops by redemption and succeeded in obtaining a decree in spite of the resistance offered to him by the defendants, on 6th of February, 1934 on payment of Rs. 617/14/6. Nearly 9 years after this decree, an application was made by Rikhab-chand, legal representative of Lalchand, who had in the meantime died, praying for extension of time for deposit of the amount fixed by the decree. The application was rejected on the ground that it was barred by time. In the circumstances, a final decree was not framed in the previous suit.
2. On 23rd of January 1945, Rikhabchand filed the suit out of which this appeal arises, for possession by redemption of the property in dispute. Defendants resisted the suit on all possible grounds. They pleaded that the mortgage was not redeemable as money had not been paid in time, nor had execution been taken out within limitation. Accordingly, the mortgage had extinguished and the defendants had become absolute owners. They also pleaded the bar of res judicata, and in the end prayed that if a decree was passed, they had spent a certain amount of money on repairs which may be included in the decree. Trial Court dis-missed the suit as barred by res judicata and so also the lower Appellate Court. The plaintiff filed a second appeal in this Court, and since the question involved was of importance, it was referred to a Pull Bench and the latter decided on '29th of September 1948' that second suit for redemption was competent and was not barred by res judicata. Accordingly, the suit was sent back to the trial Court for fresh decision on the merits.
3. While the suit was pending in the trial Court on 4th of May, 1949, plaintiff filed an application that a decree for mesne profits may also be passed in his favour. This was contested by the defendants and, in the circumstances, an issue was framed on the point. Ultimately, it was held by the Courts below that the plaintiff was entitled to mesne profits and, therefore, a decree was passed for possession by redemption on payment of Rs. 671/14/6 and a direction was added to the effect that an enquiry may be made into mcsne profits from the date of the suit till delivery of possession. Before the learned District Judge, in appeal, a question was raised to the effect that since no valid tender of the money had been made, the question of the plaintiff claiming mesne profits did not arise. A number of authorities were cited to the effect that the liability of the usufructuary mortgagee to account for mesne profis arose only from the date the mortgage money was actually tendered to him. The learned District Judge came to the conclusion following 'MAUNG PO TUN v. MAUNG E KHA', AIR (4) 1917 Low Bur 122, that the filing of a suit for possession by redemption was a sufficient offer and that if the defendant contested the suit and his defence was found to be untenable, he should be ordered to account for what he has received after the institution of the suit. The result was that the decree passed by the trial Court was upheld by the learned District Judge.
4. In this appeal, the learned counsel for the appellant has put forward the following two contentions :
1. that in the plaint there was no prayer for mesne profits and no allegation either that because a valid tender had been made the plaintiff was entitled to claim mesne profits;
2. that MAUNG PO TUN v. MAUNG E KHA', AIR (4) 1917 Low Bur 122, did not lay down a correct proposition. Accordingly, it must be held in this case that there was no valid legal tender.
5. So far as the first contention is concerned, generally speaking, it is true that unless there is a pleading, a Court has no jurisdiction to frame an issue and as held in 'SIDDIK MAHOMED SHAH V. MT. SARAN', AIR (17) 1930 P C 57 (1), even if the parties lead evidence on that issue, the Court is not entitled to look at it. The facts of this case are, however, different and the above proposition is not applicable. Alter the case had been remanded by the former High Court of Jodhpur, as stated above, the question relating to mesne profits was raised by means of an application filed on 4th of May, 1949. This was hotly contested by the defendant and even an issue was framed upon itx The raising of this point by means of an application was not objected to by the defendant and he never stated that unless the defendant amended his 'Jababdaba', it should not be allowed to be raised and an issue should not be framed upon it. Now it is rather late in the day, after the case had been fully developed on the above point, on either side to raise this point at this stage. In the circumstances I consider, the question was properly raised and gone into in this case and cannot be thrown out merely on the ground that there was no pleading..
6. The second question turns on an interpretation of the term 'tender' occurring in Section 84 of the T. P. Act. According to this section, interest on the principal money ceases from the date when the mortgagor has tendered or deposited in Court the amount due on the mortgage. It goes without saying in accordance with the above that the liability of the usufructuary mortgagee to account for mesne profits will arise only when money is tendered to him. In order that a tender may be a valid offer, it must be made under circumstances that the person to whom it is made may have reasonable opportunity of ascertaining that the person, by whom it is made is able and willing there and then to do the whole of what he is bound by his promise to do. It must of course be unconditional. It has been held in a number of cases that money must be actually tendered but as found in 'MAUNG PO TUN v. MAUNG E KHA', AIR (4) 1917 Low Bur 122, it cannot be laid down as a general proposition that in order that it may be a legal tender, actual money must be produced under all circumstances. There is a citation in this judgment from, the Ghose's Law of Mortgages in India, and Commentaries on the T. P. Act by Shephard and Brown, according to which it appears that if the creditor by his conduct dispenses with the production of the money, he cannot afterwards object that there was no valid tender. In other words, where by express words or conduct he shows his determination not to accept the money offered and the production of it is shown to be useless, it must be held that the creditor dispensed with the production. It was held in the above authority that under these circumstances the appellant may be said to have done all he could and should as a production of the money would not have tempted the respondent to change his mind. In that case the mortgagee refused to allow redemption saying that he had bought the property outright and the mortgagor contended that the mortgagee had ceased to have any further rights from the date of his refusal to allow redemption and was, therefore, accountable for his gross receipts from the property in his possession, it was on these grounds that it was held that the suit for redemption was nothing: more or less than an offer to redeem and when the defendant in the suit contested it and it was found after due enquiry that his case was not true, he was held to have been rightly ordered to account for what he had received after the institution of the suit. The facts of this case are, in my opinion, on all fours with facts of the present case. The above proposition finds support from the following quotation from 'HUNTER v. DANIEL', (1845-4 Hare 420) in 'VENKATARA-YANIM GARU V. VENKATA SUBADRAYAMMA', AIR (10) 1923 PC 26:
'The practice of the Courts is not to require a party to make a formal tender where from the facts stated in the Bill or from the evidence, it appears the tender would have been a mere form and that the party to whom it was made would have refused to accept the money.'
7. Their Lordships held that that was a true and accurate expression of the law. The position is the same where a mortgagee unequivocally refuses to receive payment if tendered on a due date as thereafter the mortgagor is relieved from the duty of actually tendering the amount and the mortgagee cannot recover interest subsequently accruing. The reason is that the conduct of the mortgagee is such as not to entitle him to the interest accruing after the date of the tender. This is not the exact point arising in this appeal, but the principle is almost the same. In 'MAUNG PO THET v. DAW BHWE', AIR (16) 1929 Rang 271; MAUNG PO TUN v. MAUNG E KHA', AIR (4) 1917 Low Bur 122, was distinguished on the ground that the mortgagee denied the mortgage and the principle was accepted that lor that reason there was no use in tendering money to a mortgagee who did not even accept the position of the mortgagee. From the reasons given in this judgment, it is clear that 'AIR (4) 1917 Low Bur 122' is fully applicable to the facts of this case. In the circumstances, the view taken by the learned District Judge is correct. The appeal fails and is hereby dismissed with costs.