Srivastava, J.:— The following two questions have been referred to us for answer:—

(1) Under Sec. 114 of the Transfer of Property Act can the relief against forfeiture of the tenancy incurred for non-payment of rent be claimed by the lessee from the trial court only or does the appellate court have the power to entertain and grant a similar prayer for relief under that section?

(2) Do the words ‘tender to the lessee’ in Sec. 114 of the Transfer of Property Act mean actual payment or tender of such payment when applying for relief, or do they extend to an undertaking or offer by the tenant to he Court that he is willing to make he payment forthwith or within the time granted by the Court?

2. The circumstances in which these questions arose may briefly be stated. The appellant was the landlord. He had let out the land in dispute to the respondent on a permanent basis for building purposes. The lease was an unregistered one but in pursuance of it the lessee had taken possession over the, and had constructed a house and a shop on it. The rent agreed upon was Rs. 12 a year. One of the conditions of the lease was that if the rent was not paid regularly or default was made in its payment the lease would be forfeited and the landlord would get back possession. The appellant sued for the ejectment of the respondent on the allegation that the rent for three years had not been paid and therefore forfeiture had been incurred. There was an allegation of subletting also. The suit was contested and it was denied that there had been any default in payment of rent. Subletting was also denied. In the written statement the respondent expressed his willingness to pay any rent that might be found due from him. The trial court decreed the suit holding that a default had been made in payment of rent and in accordance with the clause in the lease forfeiture had been incurred. It also held that the clause relating to sub-letting had been violated. The respondent appealed against the decree. When the appeal came up for hearing he requested the appellate court to grant the relief to him against the forfeiture under Sec. 114 of the Transfer of Property Act. The lower appellate court acceded to that request and passed an order directing the respondent to pay the rent in arrears together with interest at 6% per annum and full costs of the suit within ten days. It directed that the appellant tenant thereupon would be relieved against the forfeiture clause and would continue in possession as before. The appellant landlord then filed a second appeal in this Court and challenged the decree of the lower appellate court mainly on two grounds. The first was that under Sec. 114 of the Transfer of Property Act relief against forfeiture could have been granted only by the trial court and the appellate court had no power to grant that relief. The other was that in the present case the amount stipulated under Sec. 114 of the Act had neither been paid nor tendered. Mere willingness to pay neither amounted to payment nor to tender. Therefore in the present case the relief against forfeiture could not have been granted.

3. When the case came up before Mr. Justice Dhavan, in support of the first contention the appellant relied on two single Judge decisions of this Court reported in Habib Ahmad v. Keoti Kuer A.I.R 1946 All. 328 and Northern India Coal Co. v. Bitti Kuer I.L.R 1950 All. 523.. The respondent on the other hand relied on Srikishanlal v. Ramnath Jankiprasad A.I.R 1944 Nag. 229., Vellathi v. Smt. K.K Thayammal A.I.R 1958 Mad. 232., Vidyapurna Thirtha Swamiar v. Rangappayyan 21 I.C 405. and Bhagwant v. Ramchandra A.I.R 1953 Bom. 129.. There was an obvious conflict between the cases relied upon by the two parties and the learned Judge felt inclined to differ from the view taken in the single Judge decision of this Court.

4. On the second question there was no real conflict of opinion but there were some observations in Habib Ahmad v. Mst. Keoti which were against the view which the learned Judge felt inclined to take viz., that actual payment or tender was not necessary for granting relief against forfeiture under Sec. 114 of the Transfer of Property Act. As he felt that he could not do proper justice in the case, because of the two decisions of this Court which placed a bar against his exercising jurisdiction to grant relief under Sec. 114, he framed the two questions we have already mentioned and referred them to a larger Bench for consideration.

5. Sec. 114 of the Transfer of Property Act reads as follows:—

“114. Where a lease of immovable property has determined by forfeiture for non-payment of rent, and the lessor sues to eject the lessee, if, at the hearing of the suit, the lessee pays or tenders to the lessor the rent in arrear, together with interest thereon and his full costs of the suit, or gives such security as the Court thinks sufficient for making such payment within fifteen days, the Court may, in lieu of making a decree for ejectment, pass an order relieving the lessee against the forfeiture; and thereupon the lessee shall hold the property leased as if the forfeiture had not occurred.”

6. The important words of the section on which the decision of the two questions referred to us turns are “if at the hearing of the suit, the lessee pays or tenders to the lessor ….”

7. Let us first try to interpret these words unobsessed by authorities. The first question depends on the interpretation of the words ‘hearing of the suit.’ On behalf of the appellant it is contended that the intention of the legislature was that if the tenant wanted to be relieved from forfeiture he must apply to the trial court at the hearing of the suit. The prayer cannot be made, according to the learned counsel to the appellate court. In support of this contention learned counsel points out that in Sec. 114 of the Transfer of Property Act the legislature first uses the phrase “the lessor sues to eject the lessee.” This means that it was contemplating the stage of the suit. Then the words are “at the hearing of the suit.” This showed that the prayer was to be made before the trial court when the suit came up for hearing before it. Then the words used in the section are “in lieu of making a decree for ejectment.” This also stows that the prayer for relief was to be, made before the first decree for ejectment was passed by the trial court and it was not intended by the legislature that prayer for relief against forfeiture fo non-payment of rent should either be made or granted by any Court of appeal. Learned counsel also stressed that Sec. 114 embodies a rule of equity. The prayer for relief under the section must therefore be made at the earliest possible opportunity and the lessor should not be allowed to first contest the suit and then when he feels he is failing in his contest, to claim the quit-able relief against forfeiture under the section.

8. Learned counsel for the, respondent on the other hand points out that there is nothing in the section to show that its application was limited to the trial court. A suit ordinarily includes an appeal. An appeal is really a continuation of the suit. The powers of the appellate court are identical with those of the trial court. Whatever the trial court could do can be done by the appellate court also. Learned counsel urged that the question of granting relief against forfeiture could arise only when a suit for ejectment had been filed, but it was not necessary that the relief should be prayed at the earliest opportunity. That would unnecessarily curtail the powers of the appellate court and prevent it from granting; a relief even when it feels that in the circumstances of the case such a relief should be granted. The decree for ejectment mentioned in the section is, according to the learned counsel, the final decree for ejectment that is passed in the case and not the decree for ejectment that is passed in the case and not the decree for ejectment passed by the trial court. Learned counsel also urged that the courts always incline against forfeiture of tenancy on the ground of non-payment of rent provided amends are made and rent is paid along with costs and interest. The tendency is to grant relief against forfeiture. If the contention pressed for by the appellant is accepted, the appellate court will be prevented from doing equity even if it is inclined to help the ???.

9. We have given due consideration to these rival contentions and have come to the conclusion that taking the terms of the section as they stand it is not possible to limit its application to he trial court only. No importance can be attached to the fact that the words “the lessor sues to eject the lessee” have been used in the section, because the question of relief from forfeiture, whether it arises in the trial court or the appellate court, will always arise after the suit for ejectment has been filed. The prayer for the relief has to be made at the hearing of the suit. A suit, it is not disputed, includes an appeal and we find nothing in ‘the section to justify the contention that the hearing of the suit refers to the hearing by the trial court only. It may be noticed in this connection that in the Code of Civil Procedure there are various provisions in which something is to be done at the earliest possible opportunity. Werever that is required the adjective “first” prefixes the word “hearing”. Reference in this connection may be made to Or. VIII, R. 6, Or. X, Rr. I and 3 and Or. XV, R. 1 of the Code. Had it therefore been the intention of the legislature to require that the prayer for relief against forfeiture must be made at the trial of the suit before the court of first instance only it would have either used the expression in the trial court after the word hearing or the word ‘first’ before the word ‘hearing.’ Nor can it be said because of the words ‘in lieu of making a decree for ejectment’ that the relief of forfeiture can be granted only before the trial court passes a decree. The decree contemplated is clearly the final and effective decree in the case. That decree for ejectment will be the decree granted by the appellate court because the decree of the appellate court always supersedes that of the trial court. Moreover, there may be cases in which in spite of full compliance with the requirements of Sec. 114 of the Transfer of Property Act the trial court may wrongly refuse to grant relief aganist forfeiture and pass a decree for ejectment. In that case it cannot be disputed that the appellate court can grant the relief in spite of the fact that the trial court had passed a decree for ejectment. Why then should not the appellate court have right to grant the relief in other suitable cases? There thus appears to be nothing in the section itself which can justify the contention that the provisions of Sec. 114 of the Transfer of Property Act cannot be utilised by the appellate court for granting the relief against forfeiture if it finds the case to be a fit one for granting the relief in question.

10. It is true that the rule about granting relief against forfeiture is a rule of equity, but from that fact also it does not necessarily follow that the relief must be claimed at the earliest opportunity i.e the earliest stage of the suit and cannot be claimed at any subsequent stage. If the tenant is, in the circumstances of the case, entitled to a relief against forfeiture unless there is some clear bar in the statute there is no reason why he should not be able to claim the relief in the appellate court. The omission to claim the relief in the trial court can be put forward as an effective bar against claiming the relief in the appellate court only if there is something in the section itself creating that bar. We find nothing of that kind in the section. It may be mentioned in this connection that granting relief against forfeiture is always in the discretion of the Court and this discretion has to be exercised keeping in view the circumstances of the case including the previous conduct of the parties (Vide Namdeo v. Narmada Bai.7) The mere fact that the tenant has claimed the relief or is prepared to pay or tender the amount mentioned in Sec. 114 of the Transfer of Property Act will not necessarily entitle him to the relief. The court will have to exercise its own discretion. That can be done by the trial court as well as by the appellate court. The appellate court while considering the question whether the discretion should be exercised in favour of the tenant can certainly take into consideration the fact that the relief has not been claimed at an earlier stage and that the tenant has contested the suit and unnecessarily raised untenable pleas against the landlord's claim.

11. Coming to the authorities it appears that there are two Single Judge decision of this Court which favour the view which is pressed for on behalf of the appellant. The first is Habib Ahmad v. Mst. Keoti. In that case the suit for ejectment had been contested by the tenant on several grounds and for the first time in the appellate court the tenant claimed the benefit of Sec. 114 of the Transfer of Property Act. Even then he did not tender or deposit the amount. The Court therefore refused to grant the relief. Rejecting the second appeal after that decision the learned Judge observed:—

“It is no doubt true that in the Court of Appeal the defendant-appellant for the first time showed his readiness to pay the amount but that is not what is contemplated by Sec. 114, T.P Act. There must be actual payment or tender before the Court. Mere readiness to pay would not suffice. I am also not prepared to accept the view that this tender or payment can be made in the appellate Court. The learned counsel for the appellant has relied on two rulings, one of Nagpur, Shrikishanlal v. Ramnath Jankiprasad and other of Madras, Vidyapurna Tirtha v. Rangappayya but with all respect I do not agree with them. It is a concession which has been extended to the defaulting lessee and its advantage can only be taken at the very first opportunity. It would be unfair to the lessor if the lessee is allowed to take advantage of that provision after a decree has been obtained.”

12. Granting a relief for forfeiture may be a concession to the lessee but with all respect we find nothing in Sec. 114 to require that the advantage of the concession can be taken only at the very first opportunity. We also find it difficult to appreciate how it will be unfair to the lessor if the relief is grafted ten the lessee by the lower appellate court or even by the High Court. The, lessor will get his dues in full. He will get even the costs of the suit and also interest on whatever is due to him. If the grant of the relief in the trial court would not amount to taking any unfair advantage, we fail to see how it can I amount to that only because the relief is being granted by the appellate court.

13. The other case of this Court is Northern India Coal Co. v. Bitti Kuer. The suit for ejectment in that case had been decreed by both the lower courts and the prayer for being relieved against forfeiture for non-payment of rent was made for the first time in second appeal in the High Court. That prayer was rejected. While stating the grounds for rejection after quoting Sec. 114 it was observed:—

“The words “at the hearing of the suit” and “in lieu of making a decree for ejectment” clearly suggest that they have reference to a stage prior to the decree of the trial court. If it were otherwise, the legislature instead of using the words “making a decree for ejectment” would have used some other language which embraced the court of appeal also. This, I think is the natural rendering of Sec. 114 of the Act. The point seems to have engaged the attention of a learned single Judge of this Court in Habib Ahmad v. Mst. Keoti where it was held that the offer to pay the rent due to the landlord must be made at the earliest opportunity and not at the appellate stage. The Calcutta High Court in Dhurrumtolla Properties v. Dhunobai A.I.R 1931 Cal. 457. at page 458 also observed that no relief from forfeiture due to non-payment of rent could be granted after an order for ejectment had been made. If the contrary view was correct, it would mean that an appellate court would be entitled to set aside the decree of a trial court on a basis which had never existed before the latter court, but had come into existence for the first time before the appellate court. That would not be any judicial ground for reversing a decree of a trial court.”

14. Four grounds were thus given in support of the view taken. They were:

(1) that the words “at the hearing of the suit” had been used which suggested that a stage prior to the decree of the trial court was contemplated.

(2) that the words “making a decree for ejectment” had been used which showed that the relief was to be claimed before the trial court had decided the suit.

(3) that relief after forfeiture cannot be granted after a decree for ejectment has been passed.

(4) that if the appellate court grants relief when it is claimed for the first time before it, it would be reversing the decree of the trial court on a non-judicial ground.

15. While considering the terms of Sec. 114 we have seen that the words used in it do not show that advantage of Sec. 114 can not be taken in the appellate court. The decree for ejectment after the passing of which relief against forfeiture cannot be granted, is not the decree of the trial court but the final and effective decree in the case. Thus relief cannot be granted in the execution department after the decree has become final and conclusive. The cases in Dhurumtolla Properties, was not a case in which the relief was being claimed in appeal. It was being claimed there in the original case before the final decree was passed. So far as the fourth ground is concerned, in many cases questions of law arising out of admitted facts or question of jurisdiction are raised for the first time in ?the appellate court. Allowing the appeal on those grounds does not necessarily mean that the appeal is being allowed on non-judicial grounds. If there is really no bar in the section itself against relief being claimed in the appellate court, and if the appellate court on being requested to grant the relief accepts the request, it cannot be said that the ground on which it is reversing the decree of the lower court is not a judicial ground.

16. With great respect to the learned Judges who decided these two cases, therefore, we are unable to share the view they have taken in respect of the question. All the other High Courts which have considered this question have taken the view that relief under Sec. 114 of the Transfer of Property Act can be granted by the appellate court also.

17. In the Bombay High Court the question arose directly in Dayaram v. Bansilal A.I.R 1953 Bom. 214.. After referring to the conflicting decisions of the Allahabad High Court on the one side and the Nagpur and Madras High Courts on the other, it was held that under Sec. 114 the defendant can be relieved against forfeiture even at the appeal stage but it is entirely in the discretion of the appeal court whether to grant such relief or not. In another case of the same High Court reported in the same volume viz. Bhagwant v. Ramchandra, Gajendragadkar, J., observed at page 133 that:—

“There is one more point which may incidentally be considered and that is, whether the tenant is entitled to the protection of Sec. 114 of the Transfer of Property Act. This section gives jurisdiction to the Court to grant relief to the tenant against forfeiture for non-payment of rent and there can be no doubt that this power can be exercised even by the appellate court.”

18. An earlier Bombay case of Ladhuram Manormal…Plaintiff v. Chimniram Dongardas…Defendant . A.I.R 1947 Bom. 86., went even further. It was held in that case that the lessee can make an application for relief against forfeiture invoking the principle of Sec. 114 of the Transfer of Property Act even in proceedings for execution of a compromise decree, which in so far as it contains a clause for forfeiture takes the place of a lease. It is not necessary for our present purposes to go to that length.

19. In the Madras High Court the question was considered first in Ramakrishna Mallay v. Baburaya XVII I.C 947.. The tenant had in that case pleaded payment but the plea had been rejected. The relief against forfeiture was claimed in the appellate court and was granted. It was observed:—

“We do not think the fact that the tenant sets up a plea of payment which he fails to prove, necessarily, in itself, disentitles him to equitable relief.”

20. Relief in that case had not been claimed in the trial court but had been claimed for the first time in the appellate court.

21. In Vidyapurna Thirtha Swamiar v. Rangappayya relief against forfeiture was granted by the High Court in second appeal. It was observed:

“The respondents, however, offered at the hearing of this second appeal to pay the rent in arrears (relying on the principles of the provision enunciated in Sec. 114 of the provision enunciated in Sec. 114 of the Transfer of Property Act and to be relieved by the Court against the incurred forfeiture. We think, we are not precluded from granting the respondents' prayer simply because in the lower Courts such offer was not made during the hearings in that Court. See Ramakrishnayya v. Baburaya.

22. Recently in Vellathi v. Smt. K.K Thayamma the same view was reiterated and differing from the Allahabad view it was held (we are quoting from the headnote):—

“The High Court in second appeal is not precluded from granting relief against forfeiture because a tenant did not make an application for it in the Court below and pay the arrears at a stage prior to the decree of the trial Court.”

23. The Nagpur High Court in Shrikishanlal v. Ramnath Jankiprasad also took the same view of Sec. 114. It was laid down at page 231:—

“The point is one not without difficulty because if no attempt is made in the trial Court to obtain relief against forfeiture by paying money into Court and a decree for ejectment is therefore given, it may be difficult for an appellate Court to say that the decree of the trial Court is wrong, and we think that in many cases money not offered at the time of the trial should not be received to relieve forfeiture in appeal, the more especially when the case has been fought out on other grounds such as denial of the plaintiff's right to sue. Nevertheless, the hearing of the suit does continue throughout the stage of appeal. It is the appellate Court's decree which supersedes the decree of the trial Court, and we are not prepared to say that an appellate Court has no power under Sec. 114, T.P Act, to grant relief against forfeiture.”

24. In Dhurrumtolla Properties v. Dhunbai this exact point did not arise in the case. The ejectment suit there had been filed in the original jurisdiction of the Court. The defendant, had put in appearance but had not filed the written statement. It then made an application for relief under Sec. 114 of the Transfer of Property Act admitting that forfeiture of lease for non-payment of rent had occurred. The main question which arose was as to what was the amount which the defendant was liable to pay in order to get relief against forfeiture. Incidentally after referring to the English practice of granting relief against forfeiture it was said:—

“Sec. 114 is based on the principles of the Chancery Courts, the only difference being that, under the English law, a tenant is allowed the same right to relieve after a judgment for recovery of land on the ground of forfeiture for non-payment of rent as if the judgment had been given after trial: See Or. 14, R. 10, Supreme Court Rules, as amended after January 1902. Under the Indian Law relief from forfeiture cannot be claimed after the order for ejectment had been made. I think therefore in order to be relieved of the forfeiture the defendant must pay:”

25. The question whether the relief could be granted by the appellate court also was thus not considered in that case.

26. We do not consider it necessary to refer to English Cases on the point as the law in that country being different those cases cannot be of much help. The law in force there has been stated thus in Halsburv's Laws of England Vol. 23 at page 681, para. 1409:—

“… the tenant is entitled to be relieved against the forfeiture on payment of the rent and any expenses to which the landlord has been put. This right to relief has been recognised, and restricted as to time, by statute. If the landlord has brought an action to recover possession, the tenant or his assigns may, at any time before trial, pay or tender to the landlord, or pay into court, all the rent in arrear, together with costs; thereupon all further proceedings are stayed, and the tenant or his assigns hold the demised lands under the lease, without any new lease. After trial and judgment for recovery of possession the tenant is still entitled to relief, but he must apply within six months from the date when the judgment was executed; after that time he is barred from relief.”

27. The preponderance of judicial opinion in this connection thus appears to be in favour of the view we are inclined to take i.e that there is nothing in Sec. 114 of the Transfer of Property Act to preclude the appellate court from granting the relief against forfeiture provided a proper case is made out and it feels that in the circumstances of the case it should exercise its discretion in favour of the tenant. The first question referred to us must, therefore, be answered in the affirmative.

28. With reference to the second question it has been pointed out to us that though an attempt was made by the learned counsel for the parties before the learned single Judge to find out whether in the present case the tenant had actually paid the amount which he was required to pay under Sec. 114 of the Transfer of Property Act, or had only expressed his willingness to pay the amount at that time. The learned counsel could not at that time find anything on the record to show that the amount had in fact been paid. When the case was argued before us learned counsel for the respondent pointed out that there was on record a tender form showing that after the order of the appellate court had been passed the amount payable by the tenant was calculated by the office on 26-6-1951 and an order of the Court was obtained on 27-6-1951 that the amount be paid, and on 28th June the amount was actually deposited in the treasury under a tender form obtained from the Court. The tender form was, however, obtained and the deposit made after the Court had passed the order granting relief.

29. The question referred to us, however, is whether under Sec. 114 of the Act it is enough if the tenant undertakes or offers and expresses his willingness to make payment forthwith or within the time granted but does not actually tender or pay the amount.

30. The section, in our opinion, contemplates three courses which a tenant can follow. He can actually pay the amount. This means that either he offers the amount to the landlord and the latter accepts or he pays or deposits the amount in Court with its permission. The second course he can follow is that he may tendor the amount. What ‘tender’ means shall be considered by us presently. The third course is that the tenant instead of paying or tendering the amount may furnish security as directed by the Court that the amount will be paid in due course.

31. It is common ground that in the present case the amount was not paid before the relief was granted. Nor was any security offered or directed to be furnished. The tenant did not make any formal application for relief under Sec. 114 of the Transfer of Property Act, and did not make any offer in writing for the payment of the amount payable by him under that section. What actually happened appears from the judgment of the lower appellate court. It is said there:

“The appellant has moved the court under Sec. 114 of the Transfer of Property Act. There stands a costly building on the land, and the appellant is ready to pay the rent in arrear and full costs of the suit and requests the court in relieving the lessee from forfeiture.”

32. The question is whether this amounted to a ‘tender’ of the amount.

33. The contention of the learned counsel for the appellant is that mere expression of willingness to pay cannot amount to tender. Tender, he contends, actually means an offer i.e the tenant must offer the amount to the landlord and be prepared to pay the amount. It will amount to a tender even if the landlord does not accept. It is necessary according to the learned counsel that the tenant should do some overt act to show that he is offering the amount to the landlord. The contention of the respondent on the other hand is that when the tenant expressed his willingness to pay the amount and was ready to pay the amount and after the order was passed he got it calculated and he actually paid, it must be held that there was a valid tender.

34. According to the concise Oxford Dictionary ‘tender’ means “offer, present, give in, offer as payment.”

35. In Corpus Juris Secundum, Volume 86 at page 558 the word “tender” is defined as follows:—

“Tender is the act by which one produces and offers to a person holding a claim or demand against him the amount of money which he considers and admits to be due, in satisfaction of such claim or demand, without any stipulation or contention …. The word tender has a definite legal significance, and imparts not merely the readiness and the ability to pay or perform at the time and place mentioned in the contract but also the actual production of the thing to be paid or delivered over an offer of it to the person to whom the tender is to be made an unqualified refusal to accept.”

36. What is valid tender has been considered with reference to the provisions of Sec. 63 of the Contract Act and Sec. 84 of the Transfer of Property Act. Under the latter section interest on a mortgage ceases to run if a valid tender is made and the former is also a similar provision.

37. In Haji Abdul Rahman v. Haji Noor Mahomed I.L.R 16 Bom. 141. the question was whether on account of a valid tender the interest on a mortgage deed had ceased to run. The essentials of a valid tender were considered in; that connection and Telang, J. observed:—

“But I find that the view I expressed during the argument about such a bare expression of willingness being insufficient has received the sanction of express judicial decision. An expression of willingness to pay does not constitute even a legal tender, and a fortiori it cannot be held equivalent to a payment into Court (See Kraus v. Arnold 7 Moore's Rep. 59 : and Leather dale v. Sweepstone 4 Car. & p. 342).”

38. In Rakhal Chandra Chakaidar v. Baikuntha Nath A.I.R 1928 Cal. 874. the requisites of a valid tender were considered and it was observed:—

“One of the requisites of a valid tender is that the party making the tender must always be ready to fulfil the obligation whenever called upon, or, as it is otherwise expressed, a tender in order to be valid must be kept good, in accordance with the requirements of the law. The plea of legal and valid tender must not only allege that the person raising the plea is still ready but must be accompanied by payment into Court.”

39. In Arunachallam v. Govindaswami A.I.R 1932 Mad. 109. also it was held:—

“Where a creditor has improperly refused tender of debt money by the debtor then in order to stop the running of interest a tender before suit must be followed by payment into Court when the creditor sues for the money. This is so because a debtor who is required to keep his tender good must when he is sued certainly understand that the debt is being demanded through the Court and as he must be able and willing at any time after tender to pay it on demand he can demonstrate his ability and willingness after the matter has come to Court only by bringing the money into Court.”

40. It appears from these decisions that mere expression of willingness to pay cannot be sufficient and cannot amount to tender. In addition to such expression of willingness it must also be established that there was ability to pay and that the expression was accompanied with some overt act like presenting the amount for acceptance, some unambiguous gesture showing that the money was ready to be paid and could be taken immediately if the acceptor so desired or some conduct clearly indicating the same mental attitude. In the absence of these, the essential requirements of a valid tender will not be fulfilled. Whether a valid tender has or has not been made in a particular case will therefore naturally depend on the facts and circumstances of each case and the conduct of the parties concerned. We have, however no doubt that mere oral expression of willingness to pay will not be enough. The money to be paid must be ready and available. The tenderer must be in a position to part with it. He must by act, gesture or conduct indicate that he is offering the money and it can be taken whenever the acceptor is inclined to take it. He should in proper cases follow the offer by actual payment or deposit of the money in Court.

41. But it should not be forgotten that the section requires the temper to be made before the order relieving the lessee against the forfeiture is passed. A payment or tender after the order will not be of any effect. Payment made after the order will not show necessarily a valid tender was shade before the order was passed.

42. This is our answer to the second question referred to us. With these answers let the record be placed before the learned Judge who made the reference.

43. Questions answered.