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Suppan Chettiar, S/O Adaikalam Chettiar Vs. Rangan Chetty and ors. - Court Judgment

LegalCrystal Citation
Decided On
Reported inAIR1938Mad405
AppellantSuppan Chettiar, S/O Adaikalam Chettiar
RespondentRangan Chetty and ors.
Cases ReferredRamabhadra Thevar v. Arunachalam Pillai
- - as regards the duration of this mortgage, the deed contained the following covenants which have given rise to a good deal of controversy: you will enjoy in lieu of interest for ten years after the expiration of the period fixed in the othi deed of oppilamaui chetty, all the profits accruing from the village. b), failed to redeem he first mortgage on 1st july 1911, but it was, however, redeemed by the plaintiff, who paid rs. the deposit under section 83 is only a form of tender and, there can be no doubt that a tender to be effective must be made to an adult, so that where the mortgagee happens to be a minor, the tender will be bad, unless made to his guardian. it is thus perfectly clear that a deposit into court (which, as stated above, is equivalent to a tender) becomes effective.....venkatasubba rao, j.1. this appeal raises some important questions of law, and has been fully argued on both sides. the suit was filed by the plaintiff for redemption in 1921. he became entitled to redeem the suit mortgage on 1st july of that year and made the statutory deposit in court under section 83, t.p. act, on 5th july. defendants 3 to 5, to whom the mortgage had, by then, been assigned, refused to accept the deposit as valid and thereupon the present suit for redemption was filed on 16th september 1921. the parties have employed their ingenuity to protect it till now, i.e. for over 15 years and during the greater part of this period the mortgage amount, namely rs. 14,000 remained in deposit in court without carrying interest. for a proper appreciation of the points raised, it will.....

Venkatasubba Rao, J.

1. This appeal raises some important questions of law, and has been fully argued on both sides. The suit was filed by the plaintiff for redemption in 1921. He became entitled to redeem the suit mortgage on 1st July of that year and made the statutory deposit in Court Under Section 83, T.P. Act, on 5th July. Defendants 3 to 5, to whom the mortgage had, by then, been assigned, refused to accept the deposit as valid and thereupon the present suit for redemption was filed on 16th September 1921. The parties have employed their ingenuity to protect it till now, i.e. for over 15 years and during the greater part of this period the mortgage amount, namely Rs. 14,000 remained in deposit in Court without carrying interest. For a proper appreciation of the points raised, it will be necessary to set out the facts of this case in some detail.

2. The village of Virakudi, the suit property, belonged to the zamindar of Neduvasal, who granted a usufructuary mortgage in respect of it, by Ex. A, dated 2nd April 1899, to one Oppilamani Chetty, to secure the repayment of Rs. 11,000 and it was stipulated by the deed, that the mortgagee was to be in possession till 30th June 1911 and that the mortgage would become redeemable on 1st July of that year. Then on 29th June 1901, the zamindar created a second mortgage (Ex. A) in favour of three brothers, of whom we are concerned with defendants 1 and 2. The mortgage amount was Rs. 14,000 out of which Rs. 3000 was paid in cash to the mortgagor and the balance, namely Rs. 11,000 was reserved with the mortgagees to be paid to Oppilamani Chetty when his mortgage became redeemable. As regards the duration of this mortgage, the deed contained the following covenants which have given rise to a good deal of controversy:

You will enjoy in lieu of interest for ten years after the expiration of the period fixed in the othi deed of Oppilamaui Chetty, all the profits accruing from the village. I shall pay the principal sum of Rs. 14,000 on the expiry of the due date and redeem the mortgage. If in any year after the stipulated period. I pay the amount, I shall pay it on the 30th of Ani, and redeem the mortgage and take back this othi deed.

3. The ten years mentioned in this clause would expire on 30th June 1921: but there is a further stipulation that if the mortgage is not redeemed on the due date, i.e. on 1st July 1921, it can be redeemed in any succeeding year, only on the 30th Ani. Whether this stipulation is valid and, if so, in the events that have happened, what is its effect-are some of the questions raised in the present appeal. To continue the narrative, the zamindar next granted in favour of the plaintiff on 16th December 1910, two usufructuary mortgages for about Rs. 86,000 evidenced by Exs. C and C-l, which together may be taken as constituting the third mortgage for the purposes of this appeal. By Ex. C, the plaintiff was directed to redeem the two earlier mortgages mentioned above, namely those dated 2nd April 1899 and 29th June 1901. Defendants 1 and 2, the second mortgagees (mortgagees Under Ex. B), failed to redeem he first mortgage on 1st July 1911, but it was, however, redeemed by the plaintiff, who paid Rs. 11,000 due to Oppilamani Chetty on 30th August 1911. The plaintiff, it will thus be seen, became in virtue of this transaction the assignee of the first mortgage.

4. Then defendants 1 and 2 asserted their right to redeem the plaintiff and on 24th July 1913, deposited in Court the sum of Rs. 11,000. On the plaintiff refusing to receive the amount, they filed O.S. No. 40 of 1913 to enforce their right of redemption, obtained a decree on 15th July 1914, and in execution thereof got possession of the village through Court on 21st September of the same year. It was now the turn of the plaintiff, the third mortgagee, to claim the right to redeem the prior mortgage, Ex. B, in favour of defendants 1 and 2. As already stated, the term of that mortgage expired on 30th June 1921. The plaintiff immediately took action by depositing into Court Rs. 14,000 on 5th July 1921, but having proved of no avail, he commenced the present suit, as mentioned above on 16th September 1921. In the mean time defendants 1 and 2 transferred their mortgaged interest to defendants 3 to 5, by Ex. I, dated 17th June 1921 and that is why they have been imp leaded.

5. Several defences were raised and one of them was that the mortgagees were entitled in computing the ten years fixed in Ex. B, to exclude the period from 24th June 1913 to 21st September 1914 that is about 15 months. They pleaded, putting forward that contention, that the suit was premature and the Subordinate, Judge, who tried the suit in the first instance, gave effect to the objection in limine and dismissed the suit in November 1922. Against this decision the plaintiff filed an appeal and the High Court (Krishnan and Venkatasubba Rao JJ.) on 27th August 1926, reversed the decree of the Subordinate Judge and remitted the suit for disposal on the merits. The case has accordingly been heard by the lower Court and the present decree of the Subordinate Judge which bears the date 12th September 1927, runs thus:

In the result, there will be a preliminary decree for redemption to be effected on 14th July 1928, before which date the plaintiff may either deposit Rs. 14,000 to the credit of defendants 8 to 5 or get the deposit in Order P. No. 25 of 1921 to be transferred to the credit of this suit. If that is done, defendants 3 to 5 may draw the amount and should deliver up the mortgaged property and all documents in their possession or power to the plaintiff.

6. It will be observed that under the above decree, the deposit made in Court on 5th July 1921, is held to be effective only from 14th July 1928, on which date the mortgagee-defendants 3 to 5 have been directed to deliver up the mortgaged property. The plaintiff attacks this decree and has filed the present appeal; a memorandum of objections has been filed by defendants 3 to 5, who also contend that the decree is in certain respects erroneous.

7. These briefly are the facts that have led up to the present appeal, and the first question that arises is whether the deposit made on 5th July 1921 is in view of the terms of Ex. B, valid. A few further facts bearing directly on this point may be here stated. The period of the mortgage was due to expire on 30th July 1921 and the plaintiff by his notice (Ex. P), given two months in advance, informed defendants 1 and 2 that they should receive the amount of Rs. 14,000 on 30th June and give up possession of the village. To this they replied by Ex. M, dated 18th June 1921, stating that on the previous day the mortgage had been assigned to defendants 3 to 5. It has not been suggested that the motives of the parties in entering into this transaction have a bearing on the question, but the fact remains that the transfer was made after the plaintiff's notice and one day before the reply was sent. It may be noted that it is by reason of this transfer, complications have ensued and that the resulting situation has enabled defendants 3 to 5 to put forward their main defence. On 4th July 1911 the plaintiff by Ex. F, informed both the transferors and the transferees that he would deposit the amount in1 Court on 5th July. The transferees (defendants 3 to 5) being minors, two notices were sent on that date, one to their mother and guardian Meenakshi Achi and the other to her authorized agent Ranga Aiyangar. Then on 5th July the plaintiff deposited into Court, Rs. 14,000 and the statutory notice Under Section 83 was issued on the 6th and served on Ranga Ayyangar on the 9th. It was not till 27th July that the mother of the minors was appointed their guardian ad litem, but this delay, it may be observed, as the case diary shows, is not attributable to the plaintiff, On 16th August, Meenakshi filed an affidavit in Court, containing two objections, first, 'that the amount has not been paid or deposited in time to enable redemption within the month of Ani,' and secondly, that the amount deposited was not sufficient. It was after this refusal to receive the amount, that the plaintiff filed the present suit.

8. It is urged for the plaintiff that the second stipulation in the deed referring to 30th Ani clogs the equity of redemption and is therefore void. But Mr. Sitarama Rao's further contention (with which we shall first deal) is that the plaintiff by making the deposit on 5th July fulfilled the requirement even of this condition. The deposit Under Section 83 is only a form of tender and, there can be no doubt that a tender to be effective must be made to an adult, so that where the mortgagee happens to be a minor, the tender will be bad, unless made to his guardian. The due date under this stipulation was 30th Ani or 14th July 1921. Although the deposit had been made on 5th July, there was not until 27th July a guardian capable of giving a valid discharge. Under Section 84, (the appeal has been argued on the footing that the sections as they stood previous to the recent amendment apply) interest ceases to run as soon as the mortgagor 'has done all that has to be done by him', to enable the mortgagee to take the amount out of Court. Section 103, enacts inter alia that where a deposit is to be accepted by 'any person incompetent to contract' an application may be made to-the Court to appoint a guardian ad litem for the purpose of 'taking out of Court such deposit' and for the performance of all consequential acts. It is thus perfectly clear that a deposit into Court (which, as stated above, is equivalent to a tender) becomes effective where the person concerned is a minor, only from the date when he is properly represented by a guardian. This view has been taken in several decisions, Pandurang v. Mahadaji (1903) 27 Bom 23. Sheo Saran v. Ram Lagan Das (1922) 9 A.I.R. All 355. Ramarayanimgar v. Maharajah of Venkatagiri (1921) 8 A.I.R. Mad 183 and Appa Pai v. Somu (1925) 12 A.I.R. Mad 1017 and we must therefore proceed upon the footing that till 27th July, there was no valid deposit. Mr. Sitarama Rao, however, contends that assuming that the deposit was inoperative for the year then in question, it should in any event be held to be effective from 30th Ani of the following year. The plaintiff's petition, which accompanied the deposit, has been destroyed and is therefore not available but there can be no question that what he desired and insisted upon, was that the amount be received and the property delivered up immediately. The notices that preceded the deposit are quite clear on the matter, for, they contain no trace of any intention that the delivery should be postponed to the year following. Moreover, as Mr. T.L. 'Venkatarama Aiyer, for the respondents, rightly points out, the plaintiff's conduct, in filing the plaint long before the due date in the following year arrived, shows that this contention is untenable.

9. But the contention that the stipulation in question is a clog on the equity of redemption, ought, in our opinion, to prevail. If the first provision in Ex. B, stood alone, the right to redeem would accrue on 1st July 1921, and could be exercised at any time thereafter. But what is the effect of the added clause? Redemption is by reason of the 10 year term prevented till 1st July. On that date and not till then does the right for the first time accrue; but the moment it accrues, the further clause seeks to impede and hamper that right. If the mortgagor is for some reason unable to redeem or prevented from redeeming on 1st July, the right vanishes for the time being, and although it accrues periodically again, it remains in force for a single day in each year, so that if the mortgagor forgets the due date, he does so at his peril. His right is thus ever in jeopardy, being liable to be defeated by his own fault or omission, or by the mortgagee's cunning or evasion. In Mohammed Sher Khan v. Seth Swami Dayal (1922) 9 A.I.R. P.C. 17 the property was mortgaged on 9th June 1908 by a deed which provided that 'after five years at the end of Jeth 1320 fasli, in the following season' the mortgagor was to redeem the property, that in default the mortgagee was to have the option of taking possession and that for 12 years from his doing, so, the mortgagor was not to be entitled to redeem. At the stipulated time, the mortgage money was not paid and the mortgagee on 14th February 1915, obtained possession. On 18th June 1915 the suit for redemption was instituted. Their Lordships after referring to the fact that the mortgage was expressly stated to be for five years and after that period the principal; money become payable, observe:

This, Under Section 60, Transfer of Property Act, is the event on which the mortgagor had a right on payment of the mortgage money to redeem.

10. Then they go on to say:

The section is unqualified in its terms and contains no saving provision, as other sections do, in. favour of contracts to the contrary. Their Lordships therefore see no sufficient reason for withholding from the words of the section their natural, force and effect. In this view the mortgagor's right to redeem must be affirmed.

11. It is unnecessary to decide whether Section 60 forbids any limitation whatsoever, irrespective of its nature, being placed upon the mortgagor's right to redeem 'after the principal money has become due'. Under the English law, a mortgagor may be precluded from redeeming for a reasonable fixed period, such as five or seven years. (Snell's Equity (1934) Edn. 21, but the limitation, however, on his right to redeem must be reasonable and not result in making the possibility of redemption a mere pretence: ibid pp. 295 and 296. In India, no doubt, longer terms of redemption have been allowed, but Mr. Sitarama Rao contends that once a period is fixed, no-provision, whatever its nature, curtailing the mortgagor's right to redeem after the expiry of the fixed term, should be held to be valid. This according to him, is the result of the express words of Section 60; whether this be so or not, in this particular case there can be no doubt that the stipulation is oppressive and unreasonable and is in the nature of a clog. The suggestion that the mortgagor may safeguard his position by paying the mortgage money at any time before the due date, but defer claiming possession till that date arrives, is-obviously without force, for, is the mortgagor expected to part with his money in the hope of getting his property at some later date? In some cases, it seems to have been held, that where even after the due date, the mortgagor is prevented from redeeming excepting in the month of Ani or Jeth, as the case may be, such a provision is not a clog on the equity of redemption, the idea being that the intention is that there should be no redemption when the crops are on the land. Here, the mortgagor could exercise his right at any time during a full month and the hardship to which we have adverted, does not arise. But in the present case, the condition not only restricts but even imperils the mortgagor's right to redeem and is so unfair and unreasonable as to amount to a clog. We therefore hold that the mortgagor was entitled to redeem on 27th July 1921, on which date alone, as above stated, he should be deemed to have made a valid deposit in Court.

12. Mr. Venkatarama Aiyer for the respondents, however, maintains that the point was not taken in the lower Court and ought not to be allowed to be raised for the first time here. We cannot agree with this contention. In the notices that preceded the suit as also in the plaint (see paras. 3, 7, 8 and 10) the right that was asserted, was the right to redeem on the expiry of the fixed term of ten years; that assertion necessarily implies that any condition inconsistent with the exercise of that right is unenforceable. Defendants 3 to f) denied the right to redeem in para. 4 of their written statement and appropriate issue was raised. The fact that in para. 12 of the plaint there is a reference to 14th July 1921, the alternative date, can make no difference. Although therefore in the lower Court no express reliance was placed on the doctrine of the clog on equity, it cannot be said that the point was not involved in the contentions actually raised. Moreover, as observed by Lord Watson in Connecticut Fire Insurance Corporation v. Kavanagh (1892) A. C. 473.

even where a question of law is raised for the first time, upon the construction of a document or upon facts either admitted or proved beyond controversy, it is not only competent but expedient, in the interests of justice, to entertain the plea,(480).

13. To decide whether the stipulation referred to amounts to a clog or not, it is unnecessary to go into any question of fact. (See also Yorkshire Insurance Co. v. Craine (1922) 2 A.C. 541 and Bisheshwar Pratap Sahi v. Parath Nath. . In the present case, the interests of justice require that the point should be allowed to be taken even granting that it had been raised here for the first time. The plaintiff, as has been shown above, acted with care and diligence, but the mortgagees resorted to trickery with a view to make redemption difficult. The objection therefore fails.

14. The defendants next object to the sufficiency of the deposit on two grounds. They claim first that a certain sum, alleged to have been expended by them on repairs, should have been included. This amount is claimed Under Section 72(b), T.P. Act, on the ground that the repairs became necessary for the preservation of the mortgaged property. It is extremely doubtful whether any repairs were effected at all before the date of the suit. Defendants 3 to 5 became entitled to the mortgage Under Ex. I on 17th June 1921, and the repairs are alleged to have been made in December 1920. By that time they had not (it is admitted) even paid the consideration for the assignment although they profess to have obtained possession. It is further improbable that any repairs would have been effected just as the due date was approaching. The accounts produced, as a glance at them will show, were not maintained in the regular course and they cannot be acted upon. Moreover, granting that the repairs were in fact made, we agree with the learned trial Judge, that it has not been shown that they became necessary for the preservation of the property. This contention is therefore disallowed.

15. It is next contended that the mesne profits, of which defendants 1 and 2 had been deprived for the period between 24th June 1913 and 21st September 1914 ought to have been included. Regarding this amount two questions arise: first, are these profits legally recoverable from the plaintiff and secondly, if they are, was he bound to include the value of these profits in the deposit he made? The mesne profits claimed fall into two periods: (a) from 24th June 1913 when Rs. 11,000 were de-posited by defendants 1 and 2 into Court, to 15th July 1914, the date of the redemption decree passed in O.S. No. 40 of 1913 and (b) from 15th July 1914, the last mentioned date, to 21st September 1914 when defendants 1 and 2 obtained possession through Court. As to the profits due for the first of the two periods we entertain no doubt that the claim is barred by res judicata. In a redemption suit, the account to be taken is of the amount due |on the date fixed for redemption and not merely up to the date of the suit. Order 34, Rule 7 and 10 enact so in express terms. They provide that an account shall be taken, first of the amount due to the mortgagee up to the preliminary decree and secondly, of the charges and expenses properly incurred by him from the date of that decree to the date fixed for redemption. The language of Order 34, Rule 10 is significant, for, what it contemplates is the final adjustment of the amount payable to the mortgagee, that is to say a general account has to be taken, which is to be complete and final. This view receives support from Satyabadi Behara v. Mt. Hira Bati (1907) 34 Cal 223 and Rukhmini Bai v. Venkatesh (1907) 31 Bom 527 where the question has been discussed at length. (See Ram Din v. Bhup Singh (1908) 30 All 225)

16. Then as regards the profits due for the Second period, the position is different. After payment to the mortgagee of the money payable to him under the decree, he is bound to surrender the property and if he fails to do so, his possession is wrongful. A suit for subsequent mesne profits is maintainable, for, in respect of such suit, no question of res judicata can arise: Sahari Dutt v. Sheikh Ainuddy 14 C.W.N. 1001. The result then is, that defendants 1 and 2 could have recovered from the plaintiff in a subsequent action, the mesne profits, if any, due for the short period of about 2 months between 15th July 1914 and 21st September 1914. Let it be granted that this amount was payable by the plaintiff to the mortgagees on the date of his deposit in Court; but we fail to see Under what right the latter could have insisted upon this amount being tacked on to the sum due under the mortgage. The plaintiff owed no duty to them in respect of the suit mortgage; that is the all important fact which the defendants' argument has overlooked. When the plaintiff withheld possession from defendants 1 and 2, he was acting in his capacity of the first mortgagee; in the present suit, in seeking to redeem the property, the right that he asserts is that of the third mortgagee. That these two rights have vested in one and the same individual, the plaintiff, is but an accident. Let us suppose that Oppilamani's mortgage had never been redeemed by the plaintiff and that the person, whose conduct prejudiced defendants 1 and 2 was Oppilamani himself; in that case could the defendants have put forward the present claim? Again, let us suppose that the third mortgagee was not the plaintiff but someone else; in that case could the defendants have raised the present contention? In respect of the amount due from the plaintiff other remedies may be open to the mortgagees; but it is impossible to uphold the contention that the deposit was insufficient by reason of those sums not having been included.

17. But then it is contended that the plaintiff, who represents the mortgagor, is bound in that capacity to make good the loss sustained by the mortgagees (defendants 1 and 2). This contention is unsustainable. The mortgagor is by the terms of Ex. B relieved from the duty of giving possession, as the mortgagees themselves undertook to redeem the property and reduce it into possession by payment on the due date. It recites:

I have directed you to pay the said othi amount at the period fixed in the othi deed and redeem the mortgage.

18. That they entered into such a contract, is not surprising, for, what does the bargain in essence amount to? The sum of Rs. 3000 which the mortgagees paid, was to yield no return until the arrival of the due date in 1911. Such profits as they were to get were to be only from the date of the redemption, which means that from 1901 to 1911 they were to get no interest on the sum of Rs. 3000 with which they immediately parted. On the due date again, without reference to the mortgagor, they were to redeem the property and enjoy its profits till 1921. There is no rate of interest specified, no estimate made of the rents and profits and all that the deed provides is, that in lieu of interest on Rs. 14,000, the profits were to be enjoyed from 1911 to 1921, though as already observed, Rs. 3000 out of this amount was paid on the date of the deed itself in 1901. The whole scheme of Ex. B appears to negative the notion of any duty on the part of the mortgagor to give possession; he was to be paid Rs. 3000 immediately and the mortgagees were to obtain possession at the end of ten years and enjoy the profits for a further period of ten years, commencing from the due date. Moreover such loss, if any, sustained by defendants 1 and 2 was attributable to their own fault. In the first place they committed default by offering to redeem the property not on the due date but two years later and secondly, they could have recovered, as pointed out above, the alleged loss, the bulk, if not the whole, of it (it is more than doubtful if any loss was really sustained for the short period between 15th July 1914 to 21st September 1914), in the redemption suit itself by claiming it there. There was good reason for the mortgagor not having assumed the responsibility at the time of Ex. B, if one might well assume that the parties were quite alive to the fact that, should any delay or default occur, the remedy lay in the hands of the mortgagees themselves, as it would he within their own power to set off any loss against the mortgage amount they were to pay. This being so, we must hold that this contention is untenable.

19. Further, granting that the loss can be claimed from the original mortgagor, that would be recoverable in an independent proceeding or by way of counter claim, but, it is difficult to see how the mortgagees would be entitled to have the loss tacked on to the mortgage amount. So far as defendants 3 to 5 are concerned, the rights Under the mortgage are assigned to them by Ex. 1 (the deed of transfer) but the right to the alleged loss is not among such rights, not being annexed to the mortgage or binding on the land. So much for the benefit of the covenant, but there is a further difficulty, as the person against whom the covenant is now sought to be enforced, is not the original mortgagor but his assignee, the plaintiff (for being the third mortgagee he may be so regarded). The question is, whether the burden of the covenant can be enforced against him. The original mortgagor may be Under an obligation to recoup the loss and that may be an equity available against him personally, but there is no covenant running with the land, as already explained and the plaintiff cannot therefore in any event be bound: see Ramarayanimgar v. Maharajah of Venkatagiri (1921) 8 A.I.R. Mad 183 at page 318 and the cases referred to therein. Provision for payment of interest would be a covenant binding on the land, but it is difficult under the peculiar terms of Ex. B., to regard the right to the mesne profits as equivalent to right to-interest. This does not mean that even if the case here was one of the interest, the mortgagor would have been held liable. So this contention cannot prevail.

20. The result then is, that every argument directed against the sufficiency of the deposit fails; the contention that the plaintiff was not entitled to redeem when the deposit was made, we have already overruled. From the date of the deposit (now that we have held to be valid) the plaintiff will be entitled to mesne profits and in regard to them, two questions arise first, up to what date is he entitled? and secondly, at what rate? As already stated the deposit must be held to have been made on 27th July 1921. It would appear that somewhere about the year 1928 or 1929, the plaintiff withdrew the amount from Court. In our opinion he is not entitled to mesne profits from the date of the withdrawal and this would be in accordance with the proviso, recently added by way of amendment to Section 84, T.P. Act. It reads thus:

Provided that where the mortgagor has deposited such amount without having made a previous tender thereof, and has subsequently withdrawn the same or any part thereof interest on the principal money shall be payable from the date of such withdrawal.

21. But the present case is governed by the Act as it stood before the recent amendment. Then the question arises, was the law, so far as our Court was concerned, laid down in a sense different from what is now enacted by the newly added proviso? In Ramabhadra Thevar v. Arunachalam Pillai (1926) 13 A.I.R. Mad 601 the question was more or less treated as one of fact. Deposit in Court being only a form of tender, what seems to have been held is, that the same rules are applicable to both tender and deposit. In Fisher on Mortgages it is stated:

Interest will cease to run upon the mortgage debt from the time at which a proper tender of the-whole amount is shown to have been made. But it ought to appear that from the time of the tender the money was kept ready by the mortgagor and that no profit was afterwards made of it upon proof to the contrary thereof, interest will run: Edn. 6, page 1831.

22. In the Full Bench case it is observed that the fact of the tender raises the presumption that the debtor continued to be ready and willing to pay, and that the burden is cast upon the creditor to show that he was either not willing or unable to pay because he had utilized the moneys for other purposes. It is unnecessary to consider the rule regarding the onus of proof. From the facts here, namely that the money was withdrawn about seven or eight years ago and has not been produced even during the hearing of this appeal the inference to be drawn should be against the plaintiff, applying the test laid down in the Full Bench case Ramabhadra Thevar v. Arunachalam Pillai (1926) 13 A.I.R. Mad 601. We must therefore hold that the plaintiff is entitled to mesne profit from the date of the deposit in Court to the date of the withdrawal. As regards the rate, the matter has not been properly gone into by the Subordinate Judge and his finding in para. 13 of the judgment, it is conceded, cannot stand. We have decided to call for a finding from the lower Court, on the evidence already on the record, in regard to the amount of mesne profits to which the plaintiff will under this judgment become entitled. If the actual date of the withdrawal is not shown, it is agreed that the accounts shall be taken on the footing that the amount was withdrawn on 20th September 1928, that being the date on which the High Court made an order staying the execution of the decree. The case is accordingly remitted to the lower Court, with a direction that a finding shall be returned before 30th November; objections to the finding, if any, may be filed in one week. The memorandum of objections fails and is dismissed. The question of costs both of the appeal and the memorandum of objections will be dealt with after the return of the finding.

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