JUDGMENT
1. 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 provides 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 out down trees existing on the mortgaged property; that the value of the trees out 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 out down but it was asserted that the trees out 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 1&.-.6 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 redemption could take place. A farther 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 out down had been planted by the mortgagee and that he was competent to out 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:
Narsingha Singh v. Achhaibar Singh 22 Ind. Cas. 539 : 36 A. 36 II A.L.J. 1001, Muhammad Ali v. Baldeo Pande 34 Ind. Cas. 183 : 38 A. 148 : 14 A.L.J. 55, Muhammad Mushtaq Ali Khan v. Bankey Lal 55 Ind. Cas. 991 : 42 A. 420 : 18 A.L.J. 440, Hait Singh v. Behari Lal 59 Ind. Cas. 92 : 43 A. 95 : 18 A.L.J. 947 and Bansi v. Girdhar Lal A.W.N. (1894) 143. Whilst in some of these cases it has been held that previous tender or payment is essential, the opposite view baa been taken in others.
8. 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 ease, 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 right is declared to be a suit for redemption. The section only defines "a right to redeem" and provides that it is a right to require the defendant to surrender the mortgage-deed and, where the mortgagee is in possession, to give up possession of the mortgaged property, and this right can be enforced if after the time for redemption has arrived the mortgage' money has been tendered or paid. The section does not lay down the conditions upon which a suit for redemption can be instituted. In some of the rulings to which we have referred above the provisions of the section do not appear to have been considered from this point of view, and the distinction between a right to redeem and a right to bring a suit for redemption does not appear to have been observed. All that Section 60 provides, therefore is what constitutes the right of redemption and there is nothing in the Section which requires that a tender of the mortgage-money should be made as a condition precedent to the institution of a suit for redemption, This would in many cases be impossible, for instance, if a plaintiff says that the mortgage was discharged from the usufruct and the defendant, the mortgagee, asserts that a large sum is still due to him, it is impossible for the plaintiff to tender to the defendant any particular sum unless an account of the mortgage has already been taken. This single instance shows that the tender of the mortgage-money cannot be a condition precedent to the institution of a suit for redemption. In the suits in which the plaintiff alleges, as he does in the present case, that the mortgage has been discharged, the question will be whether the plaintiff's allegation of true or whether any particular sum is still due to the mortgagee. If the Court finds that some money is due to the mortgagee the Court will, under the provisions of Order XXXIV of the Code of Civil Procedure, make a decree for redemption subject to the payment of the money so found due on or before a particular date. The mortgagor will then be bound to pay the mortgage-money on or before that date, or to tender it into Court; and if he does so he becomes entitled to redeem the mortgage and take possession of the mortgaged property if he is not already in possession. What Section 60 requires is, that, without payment or tender of the amount due upon the mortgage, the mortgagor will not be entitled to redeem and for this purpose it is not necessary that a tender of the mortgage-money should have been made before the institution of the suit. 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.
9. 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.
10. Instead of remanding the case to the Court below we have thought it proper to consider the other points which arose in the ease. The first is the amount of the mortgage of 1386 alleged to have been made by the plaintiff's mother during his minority in favour of the mortgagee. That mortgage was for a sum of Rs. 1,999, of which Rs. 95, was alleged to have been received in cash. The Court of first instance stated in its judgment that no evidence had been produced to prove that there was any necessity for borrowing this Rs. 95, and the learned Vakil for the respondent has not been able to draw our attention to any credible evidence upon the point. The balance of the amount secured by this mortgage consisted of three sums of money due upon three simple bends executed by the father of the present plaintiff. Those bends were executed in 1865 and 1866. In each of those bends a date is fixed for redemption; but there is a further condition that if the amount was not re-paid on those dates it should be paid before redemption of the usufructuary mortgage, The effect of this last mentioned condition seems to us to be this, that if the executant of the three bends could not discharge the amounts secured by them on the dates specified in each of those bends he would have a further period for the re-payment of those sums and that period would expire at some time prior to the date upon which the usufructuary mortgage was to be redeemed. Under the terms of the usufructuary mortgage the date of redemption of that mortgage was the 30th of Jeth 1280 Fasli, (i.e., 1873). Therefore, the latest date on which the three bends could be discharged was Jeth 1873. The mortgage executed by the plaintiff's mother was in 1886. Therefore, the debt due under the three prior bends, to which we have referred, had become time-barred when the mortgage last mentioned was executed. Such a mortgagee would not be to the benefit of the plaintiff minor and, therefore, it is not binding on him. As valid necessity for Rs. 95, out of the consideration was not proved and as the remainder of the debt, which might be treated as an antenedent debt, had become time-barred, the mortgage of 1886 was not a mortgage which could, in any way, be enforced against the plaintiff and for which the plaintiff would he held to be liable. Therefore, the Court of first instance was justified in refusing to give effect to that mortgage.
11. The only other point is the planting of a grove by the mortgagee. It has been found, and it is not disputed, that trees have been planted. In the written statement reliance was plated upon an alleged contrast between the parties. That was found against the defendant. In the appeal which the defendant preferred to the lower Court he did not rely on the contrast but his contention was two-fold, he urged that the planting of the trees was an improvement to the mortgaged property and that for that improvement the defendant was entitled to be compensated. His other contention was that he should be allowed to out dawn the trees and remove them and that the plaintiff should not have the benefit of the trees. We do not think that the planting of these trees could be deemed to be an improvement of such a nature as to entitle the defendant to claim compensation from the plaintiff but he has certainly the right to take away the trees and the plaintiff cannot benefit by the trees whish have been planted by the defendant. The defendant will be entitled to remove the trees as prayed for by him in his memorandum of appeal to the lower Appellate Court.
12. The result is, that the appeal is allowed, the decree of the Court below is set aside and a decree is granted in favour of the plaintiff for redemption of the property claimed on payment of Rs. 375 within three months from this date, subject to the condition that the defendant will be entitled to remove the trees planted by him within three months from the date of the payment of the mortgage money. The plaintiff will get his costs in all Courts including, in this Court, fees on the higher scale.