Tender of mortgage money is not a condition precedent to the institution of a suit for redemption. However, redemption shall not be allowed unless the amount declared by the decree to be due to the mortgagee has been paid or tendered on or before the date fixed by the Court in the decree.

1. This appeal is directed against the judgment and decree of the Additional Subordinate Judge III. Darbhanga, affirming those of the Munsif II, Darbhanga. The suit was filed by the plaintiffs-respondents first part for redemption of some lands which were mortgaged by Jhameli Panliar, father of respondents 1 to 3, by a mortgage deed dated the 25th January, 1928, in favour of the defendant-appellant. Both the Courts below have held that the plaintiffs were entitled to redeem the mortgaged property.

2. Two points have been urged in this second Appeal. In the first place it has been contended that the redemption suit was not maintainable, because the mortgage money was not tendered or deposited as contemplated under Section 83 of the Transfer of Property Act (hereinafter referred to as the Act) before the institution of the suit. Mr. Lala Deokinandan Prasad, learned Counsel appearing on behalf of the appellant, has referred to Sec. 60 of the Act which, inter alia, provides that at any time after the principal money has become due, the mortgagor has a right, on payment or tender, at a proper time and place, of the mortgage money, to require the mortgagee to deliver the mortgagor the mortgage deed and all documents relating to the mortgaged property which are in possession or power of the mortgagee. Learned Counsel submitted that the expression on payment or tender in the section clearly indicates that payment or tender is a condition precedent to the institution of the suit, and since, in the instant case, no payment or tender had been made, the suit was not maintainable. Therefore, according to him, both the Courts below erred in holding that the suit was maintainable at the instance of the plaintiffs.

3. In my opinion, the contention of learned Counsel is not acceptable. In Raghunandan Rai V/s. Raghunandan Pande, AIR 1921 All 353 a Full Bench of the Allahabad High Court had occasion to consider the provision contained in Section 60 of the Act, where a similar point arose before their Lordships for consideration. Their Lordships observed (at page 355) as follows :

"In our opinion a suit may be brought for redemption of a mortgage without tendering the mortgage money to the mortgagee, but redemption will not be allowed unless the amount declared by the decree to be due to the mortgagee be paid or tendered on or before the date fixed by the Court in its decree. In this view, the Court below was wrong in dismissing the suit on the ground that a tender of the mortgage money, or such portion of it as was due, had not been made, and its decision on the point must be set aside."

In the case of Dinanath Rai V/s. Rama Rai, AIR 1926 Pat 512, Division Bench of this Court, relying on the above observation of their Lordships of the Allahabad High Court in AIR 1921 All 353 = ILR 43 All 638, took a similar view and held that Sec. 60 only defines the right to redeem, and does not lay down that tender of the mortgage money is a condition precedent to the Institution of the suit for redemption.

4. What Sec. 60 requires is that without payment or tender of the amount due under the mortgage, the mortgagor will not be entitled to redeem it, and for that purpose it is not necessary that the mortgage money should be tendered before the institution of the suit. It is thus clear that a suit for redemption may be brought without tendering the mortgage money to the mortgagee, though redemption shall not be allowed unless the amount declared by the decree to be due to the mortgagee has been paid or tendered on or before the date fixed by the Court in the decree. In the instant case also the trial Court has directed the plaintiffs to deposit Rs. 400.00 the bharna money, in the Court to the credit of the defendant within three weeks from the date of the order and asked the defendant to deliver possession of the bharna land to the plaintiffs within two months from the date of the deposit made by them. In that view of the matter, there is no merit in th