JUDGMENT

Dunkley, J - This suit was brought in the Small Cause Court of Rangoon for the recovery of two months' interest due on a registered mortgage-deed for a principal sum of Rs. 50,000. The defence of the defendants-applicants was that they had made a valid tender of the whole amount remaining due on the mortgage, and that therefore under the provisions of Section 84, T.P. Act, interest had ceased. They admitted their liability for one month's interest only. According to the terms of the registered deed, the amount due on the mortgage was repayable on 3rd December 1932, and it has been held by the learned second Judge of the Small Cause Court that on 3rd January 1933 the defendants-applicants made a genuine tender to the plaintiff-respondent of the amount due on the mortgage, but the respondent refused to accept the amount.

2. The real case of the respondent rests upon an alleged verbal agreement, entered into between him and the applicants on 6th November 1932, whereby the time of repayment was extended till the end of 1933 and the mode of repayment was to be by instalments of Rs. 2,500 a month. On behalf of the applicants it is urged that, because this agreement was not by a registered document, evidence thereof is inadmissible and it cannot be proved, and this contention must, in my opinion, prevail. The authorities quoted in support thereof are: Tika Ram v. Deputy Commissioner of Bara Banki (1899) 26 Cal. 707, Abdullah Khan v. Basharat Husain (1913) 35 All. 48 and Sadaruddin Ahmad v. Chajju (1909) 31 All. 13. The learned Judge of the Small Cause Court admitted evidence of this agreement on the ground that it was not a modification of the terms of the registered deed and that it referred to an agreement collateral to the transaction of mortgage. This is a contention which is, in my opinion, untenable, for the rate of interest and the time and mode of repayment of the principal are material and essential parts of a deed of mortgage. No alteration in these terms, as contended in the registered deed-, can be validly made except by a registered document. Therefore oral evidence regarding this alleged agreement of 26th November, 1932 ought to have been excluded. The learned Judge of the Small Cause Court has held that there was a valid and genuine tender of the amount due on the mortgage on 3rd January 1933, but he has further held that it was not merely sufficient to tender the money, but that the money must be put at the disposal of the mortgagee to take it whenever he desired. This seems to me to be putting the matter too high. No doubt it is correct that in order that a tender should operate to stop the running of interest there must be a continued readiness to pay the amount due on the mortgage: see Jagat Tarini Dasi v. Naba Gopal (1907) 34 Cal. 305. But it is unnecessary to keep the money immediately at the disposal of the mortgagee, provided that it can be found whenever the mortgagee sees fit to demand it, and it has been held by their Lordships of the Privy Council in Chelikani Venkatarayanim 1923 P.C. 26, that if a mortgagee unequivocally refuses a proposed payment of the amount due the mortgagor is not bound to make a formal tender of it, and the mortgagee cannot recover interest accruing subsequently. It is quite clear that in this case there was such an unequivocal refusal by the respondent to accept the amount due on the mortgage.

3. It is plain from the correspondence and from the respondent's deposition in this case that even at the time that the case was brought he was relying unreservedly upon the terms of the invalid agreement of 26th November 1932, and would have refused payment of the whole amount due on the mortgage at any time, even while the present suit was going on. It has been urged on behalf of the respondent that the applicants' failure to pay into Court the one month's interest which was admittedly due when the suit was brought shows that there was no continuous readiness on the part of the applica