1. 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 to pay off his mortgage and recover his property, availed himself of the procedure under Section 83 of the Transfer of Property Act and paid the amount due under the mortgage, namely, Rs. 800, into Court on the 8th of October 1908. The 1st 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. 070-7-6 in respect of the hypothecation bond and tendered the two sums to the 1st defendant. A notice was sent to the 1st 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 the 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 under Section 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 that amount was enough and that he had duly discharged the claim of the 1st defendant.
2. 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 were bad on the ground that it was not for the debtor to speculate as to what reduction the creditor would accept or the Court would make front the fall 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 5 El. & Bl. 639 : 25 L.J.Q.B. 15 : 2 Jur. 21 : 4 W.R. 53 : 103 R.R. 658. There in respect of an entire debt of 82, a tender was made of 55-0-0, 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 the case of Vencatrama Aiyar v. Rangasawmi Aiyangar 17 Ind. Cas. 368 : 23 M.L.J. 588 : (1912) M.W.N. 1175. 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. That seems to be quite different in principle to the present case 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 stop 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 Full Bench given the other day (1st April 1915) in Snbramania Aiyar v. Balasubramania Aiyar 30 Ind. Cas. 317 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 appellant's contention.
3. Therefore, the appeal is allowed and mesne profits will be decreed to the appellant as from the 29th January 1909 until delivery of possession.
4. The amount of mesne profits will be determined by the Court of first instance. Each party will give and take proportionate costs.
Kumaraswami Sastri, J.
5. I agree.