The Chief Justice.- This is ah appeal under the Letters Patent against the judgment of Rajagopalan, J., dismissing a second appeal by the defendant in an action for redemption of a usufructuary mortgage for Rs. 650 effected under a deed dated 23rd September, 1940, by one Syed Ismail in favour of the defendant. The mortgage was redeemable at the end of three years. Before the expiry of this period, Syed Ismail conveyed the equity of redemption in the mortgage property to the plaintiff-respondent by a deed, Ex. P-1, dated 4th August, 1942. It is common ground that out of the sale consideration of Rs. 2,900 a sum of Rs. 2,029 was still due and payable even on the date of the suit. The sale deed which was executed on 4th August, 1942, was registered only on the 20th October, 1942. Meanwhile, Syed Ismail had executed another usufructuary mortgage in favour of the defendant on 7th September, 1942, to secure a further advance of Rs. 1,000 alleged to have been paid on that date. On 14th October, 1943, the plaintiff tendered the mortgage amount of Rs. 650 but the defendant refused to accept it. The plaintiff followed by an application under section 83 of the Transfer of Property Act but that petition was dismissed because the defendant refused to accept the money tendered. Thereupon, the respondent instituted the suit out of which this appeal has arisen to redeem the usufructuary mortgage of 1940. The District Munsiff of Madura decreed the suit and this decision was confirmed on appeal by the learned Subordinate Judge of Madura. There was a second appeal which was dismissed by Rajagopalan, J. It is against this decision that the present Letters Patent Appeal has been filed.

Mr. K.S. Sankara Aiyar learned counsel for the appellant pressed upon us only two points. The first was that the suit should have been dismissed because a necessary party, viz., Syed Ismail, the original mortgagor had not been made a party to the suit. On this point Rajagopalan, J., held that Syed Ismail was no doubt a necessary party in the sense that it would have been much more convenient to all the parties if he had been on record but the failure to add him did not prevent relief being granted to the parties on record who were entitled in law to such relief as could be granted without affecting the rights of parties not on record.

The other point related to the plaintiff’s claim for mesne profit from the date of the tender of the mortgage money. The arguments of learned counsel for the appellant was that inasmuch as the entire purchase money had not been paid to Syed Ismail, the vendor, he was entitled to continue to be in possession till he had been fully paid and as he held a mortgage from the vendor, he could rely upon his vendor’s right to remain in possession and non-suit the plaintiff in his action for redemption. Before this contention can succeed the plaintiff’s counsel realised that he would have to maintain that the vendor’s lien for the unpaid purchase money would entitle the vendor to remain in possession till he had been paid the entire purchase money. In support of this contention, he cited to us an early decision of a Division Bench in Subrahmania Aiyar v. Poovan1, in which the learned Judges expressed the view that the vendor had a right to retain possession until the purchase money was paid and the vendor’s lien extinguished by such payment. This view however did not find acceptance in later decisions of this Court-See Velayudha v. Govindaswami2, Velayudha v. Govindaswami3and Krishnamma v. Mali4. In a recent case which came up before Somayya, J., in Poomalai v. Annamalai5the learned Judge followed the rulings in Velayudha v. Govindaswami3, and Krishnamma v. Mali4, as laying down the correct principle so far as this Court was concerned, though other Courts have taken a different view. With respect we accept the law as laid down in Velayudha v. Govindaswami3and Krishnamma v. Mali4. It follows that the appellant was not entitled to refuse the tender

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