Sir Lionel Leach, C.J:— This appeal involves two questions. The first question is whether the mortgagors of certain immovable properties were entitled to redeem the mortgage before 10th September 1928. The second question is whether a tender of Rs. 760 is to be regarded as invalid because it fell short of the amount due by Rs. 4. The mortgage was created by the first, second and third defendants in favour of Donda Godavarayya, the appellants' father, on 10th September 1926. The mortgagors covenanted to repay all the principal and interest payable under the deed “by” 10th September 1928. In the month of June 1927 the fourth defendant, who is now the first respondent, tendered to the mortgagee the sum of Rs. 760. The first respondent had purchased the equity, of redemption and therefore stood in the shoes of the mortgagors. In tendering the sum of Rs. 760 the first respondent did so in the full belief that this was the correct amount. There had been a miscalculation, but this was not discovered at the time. The mortgagee refused to accept the tender, not because the amount offered was Rs. 4 short of what was then due under the mortgage, but because he maintained that the terms of the mortgage deed precluded the first respondent from making any tender until 10th September 1928. The mortgagee at no time questioned the correctness of the amount which was offered to him and a letter written by him to the first respondent on 4th July 1927 and his own testimony in the case clearly indicate an unequivocal refusal to accept anything less than an amount representing the principal and interest calculated up to 10th September 1928. It is not suggested that the first respondent in making the tender was unwilling to pay the full amount then due.
In 1933 the appellants' father instituted a suit in the Court of the District Munsif of Chodavaram to enforce payment of a sum of Rs. 1,700 which he claimed to be owing in respect of the mortgage. The defendants pleaded that by reason of the tender in the month of June 1927 interest had ceased to run from the date of the tender and denied that there was anything more than Rs. 769 due, which amount was deposited in Court. The District Munsif accepted the plea that there had been a valid tender and directed that the Rs. 769 should be paid to the plaintiff. Accordingly he dismissed with costs the claim for the balance of the Rs. 1,700. The appellants appealed to the Subordinate Judge of Vizagapatam, who held that the tender was invalid and passed a decree for the full amount claimed, less a small reduction in the amount of interest. The first-respondent appealed to this Court and the appeal was allowed by Wadsworth, J. who restored the decree of the District Munsif. The present appeal is from the judgment of Wadsworth, J. under clause 15 of the Letters Patent.
The learned Judge held that the words “we shall pay all the principal and interest payable under this document by 10th September 1928” to be found in the deed meant payable “on or before” that date, and we have no hesitation in concurring in this opinion. Before the learned. Judge and in this Court several cases have been quoted, but none is really in point. The meaning of the word “by” is not referred to in any of them; If the word “by” is to be given here its ordinary meaning, the document stipulates that the mortgagors shall pay on or before that date. The option was in them. In our opinion, it is not feasible, to put any other interpretation on the word.
There has been considerable argument in this case on the question, whether the maxim de minimis non curat lex applies to a tender. In Subbai Goundan v. Palani Goundan Sadasiva Ayyar and Moore, JJ. did not discuss the maxim but impliedly rejected it. There, a tender by a mortgagor to the mortgagee was short by 9 pies of the correct amount and it was held that this was a bad tender. In Subramania Aiyar v. Narayanaswami Vandayar Seshagiri Ayyar J., referred to the decision in Subbai Goundan v. Palani Goundan and said that if he were deciding that case he would have applied the maxim, but this observation constituted an obiter dictum as the application of the maxim to a tender was not called for in that case. Venkataramana Rao, J. in Narayanaswami Nayak v. Ramaswami Nayak expressed his agreement with the observation of Seshagiri Ayyar, J. and this again was obiter. For reasons which will presently be indicated it is not necessary to decide whether the maxim can be applied to a tender of an amount in redemption of a mortgage, but in passing it may be observed that he case has been quoted to us, English or Indian, in which the maxim has been applied to a tender and it is certainly open to doubt whether it can properly be applied. Section 84 of the Transfer of Property Act which deals with a tender in redemption of a mortgage speaks of “the amount” remaining due on the mortgage, and section 38(2) of the Contract Act says that an offer of performance should be made at a proper time and place, and under such circumstances that the person to whom it is made may have a reasonable opportunity of ascertaining that the person by whom it is made is able and willing there and then to do “the whole” of what he is bound by his promise to do. It may also be observed that the sum of Rs. 4 is not an inappreciable sum.
The reason why it is not necessary to decide whether the maxim de minimis non curat lex applies, in this case is because it is manifest that there are two other principles which apply and on these principles the judgment under appeal may be supported.
The first principle is that where there has been an unequivocal refusal to accept a tender the law does not require a tender to be made. In Chalikani Venhatarayanim v. Zamindar of Tuni, which was an appeal from this Court, the Privy Council expressly approved of the dictum of Wigram V.C in Hunter v. Daniel where he said:
“The practice of the Court is not to require the party, to make a formal tender where……from the facts stated in the bill, or, from the evidence, it appears that the tender would have been a mere form, and that the party to whom it was made would have refused to accept the money.”
Chalikani Venkatarayanim v. Zamindar of Tuni arose out of a mortgage suit and the refusal, to accept a tender was based on an invalid provision in the mortgage deed. In these circumstances and because it did not necessarily follow that if a tender had been made it would not have been accepted, the Judicial Committee held that there was not an unequivocal refusal. But the facts in that case are very different from the facts in this case. Here, there was a tender and the appellant's father intimated in writing that he would not accept it. The refusal was embodied in a letter, dated 4th July 1927, and it left no doubt that any tender less than the full, amount calculated up to 10th September 1928 would not be accepted.
The second principle is that, where there is a specific objection to a tender, it is an implied waiver of any other objection there may be. The application of this principle is concisely stated in Benjamin on Sale, Seventh Edition, page 812, where the leading cases are collected. It will be sufficient if one of the cases is referred to, namely, that of Polglass v. Oliver where Bayley B. said:
“To make a tender good, it should be made in the coin of the realm, and the money ought to be produced; but the party to whom the tender is made, may make good what would otherwise be insufficient, by relying on a different objection. If he claim a larger amount, and give that as a reason for not accepting the money, he cannot afterwards object that the money was not produced nor can he object that it was offered in paper. If he object to accept the sum tendered because it is in paper, which he is not bound to receive, he gives the party tendering an opportunity to make his tender in coin; but if he puts his refusal upon a different ground, he waives the objection as to the quality of the tender.”.
In the present case the tender was refused, not because the amount tendered was short by Rs. 4 but because the appellant considered that he was entitled to wait until 10th September 1928, which meant more in interest for him. His refusal of the tender on this ground waived any objection that he may have had to the amount being short. After he had written his letter of 4th July 1927 it was not open to him to raise the question of the amount of the tender.
For these reasons the appeal will be dismissed with costs.
G.R