Seshagiri Aiyar, J.
1. This suit is for redemption. Although the question of the priority of the two mortgages in dispute is not easy to determine, I shall proceed on the fame assumption on which the Courts below have acted throughout. The defendant obtained a mortgage of the A schedule properties in 1902. On a portion of these properties which are included in the B schedule, there was a mortgage to one Bava Rowther. This Rowther brought a suit on his mortgage. The properties were put up to pale and the present plaintiff purchased the B schedule properties alone in 1908, subject to the defendant's mortgage. After he became the purchaser, the plaintiff presented an, application under Section 88 of the Transfer of Property Act, in January 1912, calling upon the defendant to receive the amount due and to deliver up the title deeds. This application is Exhibit Q. In it petitioner states that he has paid into Court the whole of the money due on the mortgage of the A schedule properties, and asks the defendant to accept the amount and to give him possession of all the properties. Then he makes an alternative request to the effect that, if the defendant is willing to receive the principal amount due in respect of the B schedule properties alone, he may draw out that sum from Court and give possession of the B schedule properties. The reply of the defendant is Exhibit B. I will use his own language in referring to it. In paragraph 2 he says: 'As there is only an offer to pay only the proportionate amount, I am unwilling to accept the same. The petition does not state how much is the proportionate amount and I am not willing to aesept it.' in paragraph 5 he says that he is willing to hand over the B schedule lands alone on receiving that whole of the amount of the mortgage due upon the A schedule properties. As the parties were not able to come to terms, the Subordinate Judge passed this order, upon the plaintiff's petition: 'counter-petitioner refuses to receive the money. Petitioner is referred to a regular suit. This petition is dismissed.' Thereupon the present suit was brought. It is admitted that ever since the 9th of January 1912 when the money was deposited by the plaintiff, it has remained in Court and has not been drawn out by him. In the present suit the plaintiff asked that he should be allowed to redeem the B schedule properties on payment of Rs. 1,800 and odd out of the sum of Rs. 3,650 deposited by him. The defendant raised various objections. He stated the same grounds which he pat forward in the counter-petition. He also raised the plea that the plaintiff was only a binamidar and as such was not entitled to redeem the property. The Subordinate Judge found all the issues against the defendant and gave a decree to the plaintiff as prayed for. He found that the sum of Rs. 1,852-3-10 mentioned in the plaint was the correct amount payable in respect of the B schedule properties. In appeal, the District Judge confirmed the findings of the Subordinate Judge upon all the points, except upon the question of interest and mesne profits. He held that the plaintiff was the real owner, and that the defendant is only entitled to the proportionate amount due upon the B schedule properties. But he was of opinion that the tender was not a valid one and that, consequently, interest did not cease to run from the date of its deposit in Court. That is the main point to be decided by us.
2. I am unable to agree with the District Judge on the question of the validity of the tender. Section 83 of the Transfer of Property Act says: 'The mortgagor or any other parson entitled to institute such suit may deposit...to the account of the mortgages the amount remaining due 01 the mortgage.' The second paragraph says: 'The Court shall call upon the mortgagee by notice to state the amount then due on the mortgage and his willingness to accept the money in full discharge of such amount.' The section does not say that nothing more than the amount actually due should be paid. Of course if the money deposited is less than the amount payable to the mortgagee, the section will not be satisfied; but where more than the amount due is paid, I fail to see anything in the section to compel me to hold that the amount remaining due has not been paid. The English authorities to which I shall presently refer support the view I have taken. In the earliest case on the subject, Wade's case (1572) 5 Co. Rep. 114, the resolution, as it is called, is thus stated: Resolution 3: A tender of more than is due is good:' This decision was followed in Douglas v. Patrick (1790) 3 T.R. 683 by a Bench of four Judges including Chief Justice Kanyon. Ashharst, J., said: 'There is no doubt a tender of the greater includes the smaller suro.' Buller and Grose, JJ., use almost the same language. These two cases and others were considered in Dean v. James (1833) 4 B.Ad. 546 : 1 N. & M. 303: 110 E.R. 56. Four Judges of the King's Bench headed by Denman, C.J., accepted the correctness of the earlier decision. Little-dale, J., said: 'This case falls within the 3rd Resolution in Wade's case (1572) 5 Co. Rep. 114, that if a man tender more than he ought to pay, it is good, for omne majus cotinet in se minus, and the other ought to accept so much of it as is due to him,' In Bevans v. Rees (1839) 5 M. & W. 306 : 8 L.J. Ex. 263 : 7 Dowl. P.C. 510 the Chief Baron and three other Barons affirmed the proposition laid down in the earlier case. The Chief Baron said: 'I am prepared to say that, if the creditor knows the amount due to him and is offered a larger sum and without any objection on the ground of want of change makes quite a collateral objection, that would be a good tender.' I may mention in this connection that there are some curious decisions in the English Courts to the effect that where a debtor on paying a larger sum asks the creditor to take what is due to him and return the balance with a change, that will not be good tender. I have not examined this matter very carefully to see on what principles this exception as regards a claim for change is based. Probably it is due to the idea that the creditor should not be put to any trouble in accepting a tender. I do not think that, in this country, where we are not obsessed by technicalities of such a narrow description, we shall be justified in accepting a rule that where a person tenders a large amount and asks for a change, he should not have the benefit of the tender. Apart from this rule as to the claim for a change, the decisions I have referred to affirm the principle which has been consistently laid down since Wade's case (1572) 5 Co. Rep. 114, All these decisions were passed before the Transfer of Property Act was enacted. I feel no doubt that the framers of the Act had these decisions in their mind in drafting the rule as to tender and deposit. It is to be remembered that the rule as to tender is a part of the law as to the performance of a contract. Section 38 of the Contract Act, which uses the term offer, lays down three conditions. The offer must be unconditional; it must be made at a proper time and place; and the thing offered must to produced for inspection.
3. So far as I have been able to see, there are no provisions in any English Act relating to tender. The practice is referred to in Bullen and Leake, pages 710 and 711. There is an analogous provision in the rules of the County Court.
4. Now I shall refer to a few Indian decisions which were quoted on behalf of the respondent. All that was decided in Vencatrama Aiyangar v. Rangasawmi Aiyangar 17 Ind. Cas. 368 was that the mortgagee should not be compelled, before accepting the tender, to decide a dispute which has arisen between the parties as to the extent of the subsisting interest of the mortgagor in the equity of redemption. I do not think that this decision is against the view I have enunciated. In Lal Batoha v. Arcot Narainaswami Mudaliyar 12 Ind. Cas. 502 Sir Arnold White, C.J., and Ayling, J., held that an offer to pay such amount as may be due on a settlement of account, if the payee would execute an indemnity bond, is not a valid tender. To use the language of the Contract Act, in that case there was no unconditional tender. In Subbai Goundan v. Palani Goundan 34 Ind. Cas. 825 where a tender of money which was less by nine pies was made, the learned Judges seem to have held that it was not a valid tender. If I were deciding that case, I would have applied the maxim de minimus non curat lex; however, that may be, the principle that where a man tenders less than what is actually due it is not a good tender, is the only proposition that must be taken to have been laid down in that case. In Ayyakutti Mankondan v. Periyasami Kavandan 30 Ind. Cas. 497: 18 M.L.T. 161 it was held by Coutts Trotter and Kumaraswami Sastriyar, JJ., that, where a bond contains a stipulation by way of penalty and the debtor deposits in Court what he considers to be reasonable compensation for the penal claim, it is a valid tender.
5. The principle to be borne in mind, especially in this country, is that the parties should be given an opportunity of making a bona fide attempt at performing the contract. If that requirement is complied with, the rights of the parties should not be defeated by technicalities. Of course, if the law imposes conditions, we are not at liberty to disregard them on the ground they are against justice. I am of opinion that the tender in January 1912 was valid. At any rate so far as the ceasing of interest after the date the defendant was served with the summons in the present case is concerned, I entertain no doubt about it. The defendant was informed by the plaintiff that the money was already in Court; he was told what the exact sum was which was due and payable to him; he was further told that he could draw that amount from Court.
6. The Courts below have found that the exact amount mentioned in the plaint was the sum which was payable to the defendant and nothing more.
7. Under these circumstances the principle of Order XXIV, Rule 3, of the Civil Procedure Code applies, and the plaintiff is entitled to interest after the date of the service of the plaint and the summons on the defendant. I would modify the decree of the lower Appellate Court by giving interest to the plaintiff from the date of the service of the plaint and summons on the defendant. The parties are entitled to proportionate costs in this Court and in the Court below.
8. Napier, J.--I have found some difficulty in holding that there was a deposit within the meaning of Section 83 of the Transfer of Property Act for, in my opinion, the petition which was filed with the deposit was not a petition contemplated by the section. The section requires that the mortgagor should deposit, to the account of the mortgagee, the amount remaining due on the mortgage, and that thereupon the Court should give written notice to the mortgagee, and he, on presenting a petition stating the amount then due on the mortgage and his willingness to accept the money so deposited, is entitled to receive the money. Now the appellant, according to the language of his petition, sought something different. He asked the Court to pass an order directing the counter-petitioner to hand over all the said that lands with the produce to the petitioner on re-eeiving the othi amount of Rs. 3,650 or directing the counter-petitioner to hand over the lands along with the produce brought in auction on receiving the proportionate amount, making the counter-petitioner liable for the costs and granted other reliefs.' This petition is clearly not contemplated by the Act. This Court has, under its powers to make rules given by Section 104 of the Act, framed Rules for the Original Side which, though not applicable to the present case, indicate the scope of the section. They require that the mortgagor should file an affidavit stating the facts of the case and in addition to depositing the amount due on the mortgage, deposit in Court a sum sufficient to provide for the costs of the mortgage, etc. They do not contemplate the exercise by the Court of any discretion, in the matter of making either party liable for costs or granting any relief. I am clear, therefore, that if the Court had refused to take any action on this petition the proceeding purported to be taken under Section 83 would have been bad. However, the Court did give notice to the mortgagee and I must take it that it treated the application as being in proper form. The mortgagee did not take objection that the mortgagor had not deposited the amount remaining due on the mortgage, so as to enable him to decide whether he would accept the money so deposited in full discharge of the amount as calculated by him. Just as it was the duty of the mortgagor to deposit the amount remaining due, so it was the duty of the mortgagee to slate the amount then due on the mortgage. It appears to me that, if he had stated the amount as some figure under the whole othi amount and had claimed to receive that amount out of the total amount deposited, he would have been entitled to do so. It is on this footing alone that I can find that the proportionate amount on such properties was, in fact, deposited. If the petition was to be read as requiring the Court to ascertain what the proportionate amount was, I should certainly hold that there was no proper deposit, but in the view that the petitioner left it to the mortgagee to take whatever sum under the total amount, which he thought he was entitled to as proportionate, I am not prepared to say that the deposit was not good. I agree with the order of my learned brother.