1. The question is whether the defendants are entitled to the benefit of Section 83 of the Transfer of Property Act in respect of the sum deposited in Court by their father on 11th April 1908 with the petition, Exhibit I. This petition was dismissed at the depositor's own request on 23rd November 1908 before notice was served on B. Subba Rao, one of the mortgagee's heirs. Respondents' Vakil argues that as the money was still left in Court, it was at the disposal of the mortgagee's heirs, but it seems clear to me that after the dismissal of the petition on 23rd November 1908 none of the mortgagee's heirs could have obtained payment of the money and no Court would have ordered payment under such circumstances. The dismissal of the petition was, therefore, tantamount to the withdrawal of the money and following the ruling of Krishnaswami Chettyar v. Thippa Ramasawmi Chettyar 8 Ind. Cas. 763 I must hold that the defendants are not entitled to claim cessation of interest.
2. I may add that even apart from this ruling, regarding the correctness of which my learned brother and I are not entirely at one, I fully agree with the reasons assigned by him for coming to the same view as myself in the present case.
3. In this case it seems to me that interest did not cease to run under Section 84 of the Transfer of Property Act, for this reason that the mortgagors did not do all that had to be done by them to enable the mortgagee to take the amount out of Court. The original mortgagee had died before the deposit was made, leaving four sons as his heirs. The mortgagors brought the money into Court and after notice had been sent to there of the sons but before the fourth had received notice, they requested the Court to dismiss their petition in which they had prayed that the mortgagees should be asked to take the money in payment of the mortgage amount. The withdrawal of this petition was withdrawal of proceedings under Section 83 of the Transfer of Property Act. The mortgagors thus did not complete what they had to do under Section 83. In short the purport of Sections 83 and 84 seems to me to be that when the mortgagor tenders through the Court the money due on the mortgage, he is relieved from payment of further interest because the mortgagee was in a position to receive the mortgage money and has refused to take it. Here there was no refusal because there never was any proper tender. For the tender (through Court) consists at least of deposit with notice to the persons entitled to withdraw the money and though the money was here deposited, there was no notice.
4. The result will be that interest on Rs. 593-2-0 at 101/2 per cent, per annum from 12th May 1908 to 14th January 1912 will be added to the amount decreed with costs here and in the lower Courts with further interest at 6 per cent, per annum up to date of payment. Time for payment is extended by three months.