SUBRAMANIA MUDALI Vs. SEMALAI GOUNDAN

JUDGEMENT

(1.) This appeal is by the defendant in the suit. On 9 March 1917, the plaintiff, on behalf of himself and his minor son sold the lands in suit to the defendant for Rs. 2,800. On, the same day the defendant executed a counter agreement to the plaintiff by the terms of which the property was to be sold back to the plaintiff on his paying for it Rs. 2,800 of his own money. The plaintiff's case is that within the period of seven years he tendered Rs. 2,800 to the defendant and that, after the defendant had refused to receive it, he deposited the money in the Court of the District Munsif of Dharapuram on 14tb February 1924, under Section 83, T.P. Act, treating the transaction o? 9 March 1917 as a mortgage by conditional sale. This deposit was well within the seven years period. His petition under Section 83 was dismissed on the ground that it was not a case of mortgage by conditional sale, but that it was one of out and out sale to which that section did not apply. The plaintiff then brought the suit with which we are now concerned in which he set up that it was a case of mortgage by conditional sale and prayed that the defendant might be ordered to accept the deposited amount and execute a sale deed reconveying the properties. Alternatively it was prayed that specific performance might be given of the arrangement entered into at the time of the execution by the plaintiff of his sale deed, the result of which would be that he would obtain the same relief. A prayer for mesne profits was subjoined to the first main prayer, but no such prayer follows on the prayer for specific performance.

(2.) The trial Court and the first appellate Court have both found that there was no mortgage but an out and out sale, but they have both agreed that the plaintiff should be given a decree for specific performance. The first Court has also awarded to the plaintiff mesne profits at the rate of Rs. 350 a year from the date of the decree to that of obtaining possession. The lower appellate Court has confirmed the first Court's decree as to mesne profits also, stating that no question as to them has been raised before it. On this second appeal the discussion has been as to whether mesne profits should have been allowed and, if so, whether the rate at which they have been allowed is not excessive. An affidavit has been filed by the learned advocate, now deceased who appeared for the defendant on first appeal stating that he argued that the mesne profits allowed by the lower Court were arbitrary and ex-ceBsive. On the other side it is represented, not that there was no argument on the point at all, but that the point was not much pressed. In these circumstances I have allowed the question of mesne profits to be argued on this second appeal.

(3.) One point taken for the appellant-defendant is that there was no proper tender by the plaintiff of the Rs. 2,800 required for the repurchase by him of. the property. It is argued that the only tender was that made by depositing the-money under Section 83,and that that deposit should be disregarded as it was made-on the footing that there had been a. mortgage while it has been held that there was no mortgage. Both Courts-however have held that there was a tender made previous to the deposit in the-month of Thay 1923. Here is a concurrent finding of fact and I cannot concede to the argument that that finding was not in accordance with the pleadings. Though the plaint did not assert that-there had been any tender in the month-of Thay, it did set up that the plaintiff made several demands on the defendant to receive the money. And the fact that-the money was deposited in Court add-credibility to the oral evidence that the-tender had already been made previously. Even the deposit itself should, in my opinion, be regarded as a valid tender ass-it has been found to be by the two Courts below. It may be that on technical grounds the defendant could refusa to receive the money, but the fact that1 the plaintiff or his legal advisers took a mistaken view as to how the arrangement was to be viewed in terms of strict legal phraseology does not in any way affect its terms, under which the plaintiff could buy back the property on a payment within seven years of Rs. 2,800 of his own money. It has been found by both Courts that the money deposited was the plaintiff's own money. The decision, to which I have been referred in Berners V/s. Fleming (1925) 1 Ch 264, seems to me to help the case of the plaintiff in this connexion.