JUDGMENT

Pramada Charan Banerji, Tudball and Stuart, JJ. - This appeal arises out of a suit for the redemption of a mortgage made on the 20th of December, 1865. It was a usufructuary mortgage and it provided that the usufruct should be appropriated in lieu of interest, and that the principal amount secured, viz., Rs. 375, would be paid on the last day of Jeth, 1280 Fasli (1873).

2. The plaintiff instituted the present suit on the allegation that the defendant had cut down trees existing on the mortgaged property, that the value of the trees cut down by him exceeded the amount of the mortgage, that the mortgage had thus been discharged and that a further sum was payable to him by the defendant. He accordingly claimed possession of the mortgaged property and the further sum which he alleged to be due to him. In the alternative he prayed that should the court find any sum to be due by him a decree for redemption should be made conditional upon his paying that sum to the defendant.

3. The suit was resisted on various grounds. It was denied that any trees existing on the land which belonged to the, mortgagor had been cut down, but it was asserted that the trees cut down were the trees of a grove planted by the mortgagee after the mortgage. It was also alleged that there was a subsequent mortgage effected in 1886 by the mother and guardian of the plaintiff, and that under that mortgage a large sum was due to the mortgagee and the payment of this sum was a condition upon the performance of which redumption could take place. A further plea was raised to the effect that under a contract between the plaintiff and the defendant the defendant had planted trees and that when redemption took place compensation should be made for the value of the trees.

4. The court of first instance found the plaintiff's allegation as to the cutting down of trees existing on the mortgaged property at the time of the mortgage was untrue. It found that the trees cut down had been planted by the mortgagee and that he was competent to cut them down. On the other questions raised that court decided mainly against the defendant and it made a decree for redemption conditional upon the payment of Rs. 375, the principal amount of the mortgage.

5. Upon appeal by the defendant the lower appellate court came to the same conclusion as the court of first instance in regard to the cutting down, of the trees; but it held that as some mortgage money was still due to the defendant and that the aforesaid sum had not been tendered or paid before the suit was instituted, the suit could not be maintained, and it dismissed it without trying the other questions which arose in the case.

6. From this decision of the lower appellate court the plaintiff has preferred this appeal.

7. The question which we have to decide is whether tender or payment of the mortgage money is a condition precedent to the institution of a suit for redemption of a mortgage. On this point the rulings of this Court are not in harmony. Of the numerous cases decided on the point the following have been cited to us:

8. Narsingh Singh v. Achhaibar Singh ILR (1913) 36 All. 36 Muhammad Ali v. Baldeo Pande ILR (1915) 38 All. 148 Muhammad Mushtaq Ali Khan v. Banke Lal ILR (1920) 42 All. 420 Het Singh v. Behari Lal ILR (1920) 43 All. 95 and Bansi v. Girdhari Lal Weekly Notes 1894 p. 143, Whilst in some of these cases it has been held that previous tender or payment is essential, the opposite view has been taken in others.

9. We do not deem it necessary to consider these rulings in detail. We think that for the purpose of determining the question which we have to decide in this case we must look to the provisions of Section 60 of the Transfer of Property Act. That section declares that the right to redeem is the right to require the mortgagee to give up the mortgaged property and the mortgage deed upon tender or payment of the mortgage money when the time for payment of the mortgage money has arrived; and a suit to enforce this