1. This second appeal refers only to the order of the lower Appellate Court, refusing interest and costs upon a sum of Rs. 999 deposited by the appellants on the 14th April 1909. The plaint was originally filed on the 8th April in that year, but it was returned for amendment and was refiled on the 16th April 1909. In the meantime, as we have been, the defendants deposited the money in Court and stated that they had tendered it to the manager and it had been refused. The money was certainly not all that was due, and it was nothing like what was due; for it has been found in the suit that over Rs. 2,000 is due from the defendants to the plaintiffs. The deposit, therefore, was not a good deposit under Section 61 of the Bengal Tenancy Act, and the defendants, therefore, must fall back upon the tender to the manager. It has been held in Jagat Tarini Dasi v. Naba Gopal Chaki 34 C. 305 at p. 323; 5 C.L.J. 270 that if the tenant is able to prove that he has made a valid tender which has been improperly refused and also that he has kept it good, he is not in any worse position than he would be in if he proves that he deposited it in Court. But the learned Sub-Judge found that the tender was not a valid tender within the meaning of Section 54 of the Bengal Tenancy Act; and there can be no doubt that the learned Sub-Judge was right in law in so holding. The whole of the money due on the kist must be tendered at the right time and at the right place to make the tender valid; and the section says nothing as to the person. Any officer of the zemindar authorized to receive money who happens to be in the village office certainly can receive it and can give a valid acquittance. But because a man happens to be the manager of the zemindar, he cannot be compelled to take money wherever he may happen to be and at what ever time or place it may be offered. Moreover, he cannot be asked to accept a small proportion of the rent due as the whole amount.
2. We have, therefore, two separate considerations in this case, namely, that the deposit in Court was bad and that the tender was bad, and these are questions of law and cannot, as the learned Judge seems to think, be dealt with as equitable matters. The learned Judge merely finds that the money was tendered to the proper person and he thinks that the appellant acted reasonably and in good faith in this respect. But this is not law. In the case we have just referred to, Jagat Tarini Dasi v. Nabagopal Chaki 34 C. 305 at p. 323; 5 C.L.J. 270 the rule laid down in Section 38 of the Contract Act was held to be perfectly good notwithstanding anything contained in the Bengal Tenancy Act, and it was held that the tender to the eldest of four joint sons in a Hindu family whose father had been recently deceased was a good tender to all the four. But the rules laid down in Section 38 are in this case much stronger against the defendant than the rules under the Bengal Tenancy Act; for it is laid down that the tender must be unconditional, must be made at a proper time and place and under such circumstances that the person to whom it is made may have a 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. If, therefore, Section 38 of the Contract Act is relied on, the defendant is entirely out of Court, and we have seen that the law as laid down in the Bengal Tenancy Act is against him both as regards the alleged tender and as regards the deposit.
3. We, therefore, think that the order passed by the learned District Judge in the Court below must be set aside and that of Sub-Judge restored with proportionate costs, that is to say, the appellants will be entitled to their full costs in the two lower Courts and to their costs on the value of this appeal in this Court. We fix the hearing fee at two gold mohurs.