Patna High Court
Girja Singh And Anr. vs Gaynwanti Devi And Ors. on 29 March, 2000
Equivalent citations: AIR2001PAT20, 2000(48)BLJR1431, AIR 2001 PATNA 20, 2000 BLJR 2 1431
Author: P.K. Deb
Bench: P.K. Deb
JUDGMENT P.K. Deb, J.
1. This appeal has arisen out of the judgment and decree dated 5-10-1977 and 15-10-1977 respectively passed by the then 1st Additional Subordinate Judge, Hajipur, in Title Appeal No. 203 of 1967 whereby and whereunder the judgment and decree dated 8-8-1967 and 23-8-1967 respectively passed by the then Additional Munsif, Hajipur in Title Suit No. 155 of 1961 (25 of 1966) has been reversed. The suit filed by the plaintiffs-appellants for redemption of mortgage in respect of 1 bigha 1 khatta 4 dhoors of S. P. No. 14 appertaining to khata No. 220 had been decreed by the original Court but such decree has been reversed in dismissal of the suit by the appellate Court.
2. As per the case of the plaintiffs-appellants they were the members of a joint family having plaintiff No. 2 being the karta had acquired right, title and interest over the suit property and filed the suit for redemption in respect of 1 bigha 1 khatta 4 dhoors which had been mortgaged by Shambhu Mahto and Bhikhar Mahto in favour of Ram Anngraha Singh ancestor of the defendant-1st set on 22-5-1903 with a further prayer of recovery of possession of the lands, means profit. The geneology of the plaintiffs-appellants runs as follows :
Govind Singh, Bhikhu Singh and Palakdhari Singh were three brothers who were members of a joint Hindu family. Bhikhu Singh died issueless in the stale of jointness with other two brothers. Then the other brother Govind Singh died leaving behind his widow Batuk Kuer who also died issue-less then the third brother Palakdhari died leaving behind his son Bakshish Singh and the plaintiffs are the sons of those Bakshish Singh. According to the plaintiffs, regarding the defendants geneology, ithasbeen pleaded that Tirpit Singh and Udit Singh were brothers and formed a joint Hindu family. Tirpit Singh died leaving behind his sons Harihar Singh and Jugeshwar Singh. Then Jugeshwar died issueless and Udit Singh also died leaving behind his son Ram Anugrah Singh who also died leaving behind his sons, namely, Durga Singh and Suraj Singh. Defendant Nos. 1 to 4 are from the branch of Ram Anugrah Singh while defendant Nos. 5 and 6 are from the branch of Harihar Singh (defendant No. 6) who died during the pendency of the suit.
3. The history behind the mortgage on which redemption has been claimed has been elaborated by the plaintiffs in the following manner. Shambhu and Bhikhar were eousin brothers who were forming a joint family and both of them jointly executed the disputed mortgage deed in favour of the ancestors of the defendants-1st party. It was alleged that Bhikhar died in the state of jointness with Shambhu without any issue leaving behind his widow Darbesari. According to the law of inheritance prevailing at that period, Shambhu came in possession of the entire property of the joint family by survivorship. Then Shambhu died leaving behind his widow Andhiya and daughter Atwariya. Andhiya came in possession of the property left by her husband and then she died leaving behind her daughter Atwariya and daughter's son Hari Narain Mahto and Sadhoo Mahto and Kishun Mehto. According to the plaintiffs, Shambhu and Bhikhar had kast land measuring 12 khalha 7 dhoors bearings. P. No. 162 and 1 bigha 16 Khatha 4 dhoors bearing S.P. No. 14 comprising under khata No. 220 Touzi No. 2706. The deed of mortgage dated 22-5-1903 was executed by both Shambhu and Bhikhar for a sum of Rs. 50/- 4 annas regarding 1 bigha 1 khata 4 dhoors from the southern part of S.P. Nos. 14 and 5 khatas from eastern part of S.P. No. 162 making a total of 1 bigha 6 khata 4 dhoors in favour of Ram Anugrah Singh the predecessor in interest of defendants-Ist set. On the basis of that mortgage deed Ram Anugrah Singh came in possession over the mortgage property as a mortgagee and after his death the same remained in possession of the descendants of Ram Anugrah Singh. It is the further case of the plaintiffs that there was stipulation in the mortgage deed to the effect that the same would be redeemed in the month of Baishak 13-11-fasli. According to the plaintiffs, the defendants Ist and 2nd sets partitioned their lands and that the mortgage land came in possession of the defendants-Ist party alone. On the basis of such partition. Mostt. Andhia the widow of Shambhu executed a sale deed with respect to 1 bigha 16 khata 4 dhoors of the lands of S. P. No. 14 for a sum of Rs. 250/- on 19-9-1934 in favour of Batuk Kuer predecessor in interest of plaintiffs who left Rs. 50/- 4 annas of the said mortgage to be paid by the purchasers. According to the plaintiffs, Mostt. Atwatiya and her sons had accepted and ratified the sale deed by executing a registered Ejatnama. It Is the contention of the plaintiffs that they requested the defendants-Ist set many times to accept the mortgage money and handover the possession of the land but they did not pay heed to the same. Then the plaintiffs deposited the amount of mortgage money and the cost of registration amount to Rs. 50/- 4 annas in the Court vide chalan dated 12-4-1958 for initiating a proceeding as contemplated under S. 82/83 of the Transfer of Property Act. A Misc. case No. 44 of 1958 was registered. Notice was served on the heirs of mortgagees on 26-5-1958 for filing the original mortgage bond (Bharna bond) which has been marked as Ext. B in the Court, and to take mortgage money. But in spite of service of notice neither the original Bharna bond was filed nor possession of the mortgage property had been given in favour of the plaintiff and ultimately, vide order dated 12-6-1958 the Misc. case was decided ex parte. As the plaintiffs could not be able to get the mortgage redeemed they had no other alternative but to file this suit for redemption as stated above. According to the plaintiffs, they are the purchasers of the mortgage right and they are entitled to get the mortgage redeemed legally as per provisions of law. It was also mentioned in the suit that the mortgage suit could not be filed earlier as they were entangled in family troubles.
4. Defendant No. 2 Ramwaran Singh had only contested the suit by filing written statement. Besides taking usual pleas of non-maintainability of the suit and the suit being barred by limitation etc. etc. be disputed the title of the plaintiffs over S.P. No. 14 the sale made by Mostt. Andhiya wife of Shambhu in respect of 1 bigha 16 khatta 4 dhoors in suit plot No. 14 in favour of Batuk Kuer on 19-9-1934. It had been challenged on the ground that Andhiya had no absolute right over the property in question and, as such, having no saleable interest as such the purchaser Batuk Kuer did not get title over the land. The mortgage on which the suit has been based has also been denied and it was further stated that Rs. 50/- 4 annas of the mortgage amount had never been left with Mostt. Batuk Kuer. The geneology regarding the plaintiffs beingheirs of Batuk Kuer has also been denied. The fact that Bhikhar Singh, Govind Singh and Palakdhari Singh were ancestors of the plaintiffs and form joint family had also been denied. According to the contesting defendant, the three brothers, as mentioned above, were separate and Batuk Kuer came in possession in respect of her husband's property and she died leaving behind her daughter Sanjhariya. It has also been contended that Tripit Singh and Udit Singh were not brothers and Udit Singh had three sons Ram Anugraha Singh, Tirpit Singh and Dun Bahadur Singh and Dun Bahadur Singh died issueless. Tirpit Singh had two sons Harihar Singh and Jegeshwar Singh. Jugeshwar Singh died issueless. Harihar Singh had a son Ram Sawan Singh. Ram Anugrah Singh had two sons Durga Singh and Surajdeo Singh. The main challenge is in respect of the genealogical table of Shambhu and Bhikhar. According to the contesting defendant, Shambhu died leaving behind his wife Andhiya and daughters Atwariya and Bhikhauniya and Bhikhauniya died leaving behind a son Dhannu Singh. According to the defendant, Bhikar died leaving behind his wife Darbesari, a son Chulhai who died unmarried and issueless and daughter Jogani. Jogani died leaving behind her son Bharoso Singh. The private partition amongst the defendants has also been denied and it is specifically denied that the defendants-Ist set came in possession of the mortgage land. As per defendants' version, Shambhu Mahto got only 15 khatta from North in his share in suit plot No. 14 and on 20-12-1915 he executed a sale deed in respect of his 15 khattas in favour of Jhangoo Singh but in the sale deed by mistake instead of Northern side of the suit plot it was mentioned as south but Jhangoo Singh by right of such purchase came in possession of 15 khathas in suit plot No. 14 on the North. Lateron, Jhangoo Singh executed a sale deed in respect of that 15 khathas in favour of Harihar Singh on 25-6-1917 and Harihar Singh the ancestor of the defendant came in possession in this land. It is also the contention of the defendants that this fact was known to the plaintiffs as they filed a Contribution Suit against the defendants and other members of the family. Thus, the whole of the land of suit plot No. 14 could not be transferred to Mostt. Batuk Kuer.
4A. In the paragraph of real fact the contesting defendant stated that on 22-5-1903 Shambhu and Bhikhar executed a mortgage deed for Rs. 51/4 annas in favour of Ram Anugraha Singh vide Ext. B/1 in respect of 1 bigha 1 khatha 4 dhoors from South out of 1 bigha 15 khathas 4 dhoors of S.P. No. 14 and in respect of 5 khathas from East of S.P. No. 162 out of total area of 12 Khathas 7 dhoors and by such mortgage the mortgagee Ram Anugraha Singh came in possession of the mortgage land and after him his heirs came in possession. There was a stipulation in the mortgage deed that mortgagee would pay the rent of the land and in the case of non-payment of rent the mortgagee shall have to pay the amounts of rent at the time of redemption and interest thereof. After the execution of the mortgage deed Bhikhar and Shambhu stopped payment of rent and so the defendants and his ancestors had to pay the rent for safety of the mortgage land and this heavy amount of rent being accumulated against Shambhu Mahto as by that time Bhikhat Mahto died and ancestors of the defendants were contemplating to file a suit for realisation of the rent money paid by them. Then Darbesari and Chulhai, wife and son of Bhikhar Mahto made a request to the ancestors of the defendants to release 5 khatha of S. P. No. 162 and in lieu of mortgage money rent paid by them and interest thereon they would sell the remaining of 1 bigha 1 khatha 4 dhoors of the mortgage land. On being agreed upon such proposals. 5 khathas of S. P. No. 162 was released and then Darbesari and Chulhai orally sold 1 bigha 1 khatha and 4 dhoors of the mortgage land with the ancestors of the defendants in the year 1931 and as purchasers the defendants-predecessors came in possession of the part of the mortgage land. The predecessor of the defendants was also mutated in the serista of the landlord in respect of the whole of the suit land and thus the defendant acquired the whole of 1 bigha 15 khathas 4 dhoors of land on payment of rent regularly to the ex-landlord and then after vesting to the State. Thus, it is the contention of the defendant that when Darbesari and her son being the heirs of Bhikhar had sold the mortgage land with the family of the defendants, Mostt. Andhiya had no right to execute a sale deed in favour of Mostt. Batuk the so called predecessor of the plaintiffs and as such, the plaintiffs can have no right for redemption of the so called mortgage. In the last, it was pleaded by the defendant that even if the plaintiffs are adjudged to be fit for redemption of the mortgage, they shall not only have to pay the mortgage money but also the rents paid by the mortgagee with interest. The details of which had been given in the foot of the plaint.
5. On the basis of the pleadings of the parties, several issues have been framed and the original Court after considering the buck of oral evidence and documents that the plaintiffs have got right over the suit property by purchase by their predecessor Mostt. Batuk and that they have got right to redeem the land from mortgage when the mortgage was admitted by both the parties. Regarding the existence of Darbesari and Chulhai it could be found that they were there but as Chulhai was an idiot he was debarred from inheriting the property and, as such, Mostt. Andhiya had the absolute right over the whole of the property left by Bhikhar and Shambhu. The said judgment and decree have been appealed against by the defendant-respondents in Title Appeal No. 203 of 1967 and the appellate Court reversed the finding of the original Court.
6. The original Court held while decreeing the suit of the plaintiffs to the effect that the geneology given by the plaintiffs in respect of themselves and also in respect of the defendants, are proper and the same cannot be interfered. It was also held that Bhikhar and Shambhu were joint and never been separated and although Bhikhar died prior to Shambhu leaving behind his widow Darbeshwari and son Chulhai but as Chulhai was an idiot and as Darbeshwari had no right as a Hindu widow at the relevant time, all properties of Bhikhar had devolved on Shambhu and after death of Shambu, the same came in possession of Mostt. Andhiya and then to his daughter and the grand-sons through the daughter. It was also held that Darbeshwari had no right over the property which can be found from the very fact that the ex-landlord had filed rent suit only against Andhiya and decree was passed and the property in suit and others had been attached and sold in auction for satisfaction of the rent decree. Thus, Andhiya sale to Mostt. Batuk Kuer and after-wards Ejatnama executed by the daughter and sons of the daughter along with Mostt. Andhiya in favour of Batuk Kuer, had perfected the title of Batuk Kuer and hence the plaintiffs have got it through Batuk Kuer and they have got right to redeem the mortgaged property and hence the suit was decreed.
7. The appellate Court reversed the judgment and practically decided all points in favour of the defendants and against the plaintiffs as decided by the trial Court on reappreciation of the evidence both oral and documentary. It was first held by the appellate Court that in the cadestral survey, the names of Shambhu and Bhikhar were mutated showing their shares half and half in the suit khata. It was further held that not only the said division of share during the cadestral survey signifies about the property being partitioned and separate between the two co-share, it was also found that during the life time of Shambhu, Darbeshwari dealt with her half share by mortgage etc. It was also found that not only the rent suits were filed against Andhiya but some rent suits were filed against Darbeshwari also by the ex-landlord. It was also found that Andhiya regarding the rent decree, had filed contribution suit for the purposes of getting the arrears of rent realised from the other co-shares including Darbeshwari and others. It was also held by the appellate Court that Chulhai, the son of Bhikhar was not a congenital idiot and as such, cannot be said to be debarred from inheritence as per the prevailing Hindu Law at the relevant time. He has also considered the evidence of the plaintiffs and also of the defendants regarding the terms used 'Batah' and 'Boudh' in respect of Chulhai and held that those words do not disclose that Chulhai was a born idiot or a congenital idiot and hence he definitely inherited the property of his father Bhikhar. Regarding the sale by Mostt. Andhiya on 19-9-1934 vide Ext. 8/A in favour of Mostt. Batuk Kuer, it was held by the appellate Court that Mostt. Andhiya had no right to sell the whole of the lands measuring 1 bigha 16 kathas 4 dhoors in respect of S.P. Plot No. 14 as she was not the owner of whole of the lands sold, at best, she could be owner of half of land in question, if her husband Shambhu had not sold any part of it. But it was found that by Ext. D and D/1, Shambhu, during his life time, had sold 15 kathas of land from S.P. No. 14 to one Jhingur and Jhingur in turn sold the same to Harihar in the family of defendants. Thus, it was held that the plaintiffs have not acquired right over the suit land as a whole and that they had no right to redeem the mortgage of 1903. Regarding the defendants claim that they have purchased from Darbeshwari orally in 1931, it was held by the appellate Court that such oral sale is valid in the eye of law because It was not an out and out sale but the sale was in respect of equity of redemption only and the same can be sold orally and in this respect, a judgment of this Court has been referred by the appellate Court.
8. It was further held by the appellate Court that as the plaintiffs did not accrued of which right over the property in question, there was no scope of redemption of the whole of the mortgage and as such, the suit had been dismissed by reversing the judgment and decree passed by the original Court.
9. Against such reversal of the judgment and decree, this appeal has been preferred by the successor-in-interest of the plaintiffs and while admitting the appeal, a bench of this Court vide order dated 4-12-1982, had formulated the following substantial questions of law as contemplated under Section 100 of the Code of Civil Procedure.
I. Whether the judgment and decree of the lower appellate Court arc vitiated as it did not take into consideration the reasonings given by the trial Court in coming to a finding that the suit property was not sold to the ancestors of the respondents as asserted in the written statement?
II. Whether in the absence of any assertion in the written statement about the amount of consideration alleged to have been paid by the ancestors of the respondents for purchasing the properly orally as alleged and in the absence of any finding that the consideration paid by the ancestors of the respondents was less than Rs. 100/- the finding of the Court below about the sale, can be sustained?
10. On the first substantial question of law, I have again and again gone through the judgment of the appellate Court very cautiously and found that such substantial question of law that the reasonings given by the trial Court had not been considered by the appellate Court, is not at all a fact. At every stage, wherever, the appellate Court has reversed the decision of the original Court, he has taken into consideration the reasonings given by the original Court and point by point, the reasonings have been reversed by the appellate Court.
11. Moreover, It has now been settled by recent judgment of the Apex Court that if the appellate Court does not advert to the reasonings given by the original Court and writes an independent judgment on the basis of the materials on record and if the second appellate Court finds the same judgment to be proper on the basis of the materials, then on the ground that the reasonings given by the original Court had not been considered by the appellate Court, cannot be a point for reversing the appellate Courts judgment as required under Section 100 of the Code of Civil Procedure.
12. The geneology given by the plaintiffs in their plaint regarding the descendency of both the plaintiffs and the defendants, although questioned by the defendants in their written statement, but both the Courts below held that the geneology given by the plaintiffs are proper in respect of both the parties and in that view of the matter, when there is concurrent finding of both the Courts below, on such factum of geneology, there is no scope for re-entering into that matter by the second appellate Court. The only controversy remains regarding the line of inheritence or devolution of the suit property by way of survivorship in between the two cousin brothers Bhikhar and Shambhu.
13. It is an admitted fact, as held by both the Courts, that Bhikhar died earlier than that of Shambhu and at the time of death of Bhikhar, he left behind his wife Darbeswari, a minor son, Chulhai and a daughter who also died afterwards leaving behind a son. Shambhu died afterwards by leaving behind his wife Andhiya and either one daughter or two daughters. The point in issue was whether on death of Bhikhar his share in the joint property devolved on Shambhu or not. In the plaint, the plaintiffs have totally denied the existence of Chulhai, the son of Bhikhar. But during the course of trial, it could be found that Bhikhar did not die leaving behind his widow Darbeshwari alone rather a son Chulhai was also surviving. From the evidence of two witnesses both from the plaintiffs' side and from the defendants' side, it could be found that Chulhai was not an intelligent one rather he was a 'Batah' which means that he was a simpleton man having no proper intellect. The same way, the word 'Bhudh' used in the evidence by the witnesses regarding Chulhai, does not mean that he was a born idiot rather the same means that he was not having the normal intelligence and intellect as found amongst the normal man. But these two words can never be substituted for a born idiot.
14. As per the Hindu Law as was existing at the relevant time, only the born idiot or a congenital idiot was debarred from inheritence amd such disqualifying the heirs are enumerated under Art. 98 of Mullan's Hindu Law. But the Hindu inheritance (Removal of Disabilities) Act, 1928, no person, other than a person who is and has been from birth a lunatic or idiot, is excluded from inheritance. By birth idiot means the person is an idiot congenital, that means he was not in a position to understand the wordly affairs and is not in a position to shoulder of his responsibilities. A person having no normal intellect, cannot be said to be an idiot congenital and as such, disqualify from inheritance. In that way, when Chulhai was in existence at the time of death of Bhikhar, then he must have inherited the property of Bhikhar. He was minor at the time of death of his father and it appears from the subsequent 'Bharna deed' that Darbeshwari dealt with the property for herself and on behalf of her son Chulhai as guardian and it also appears that till 1942, at least. Chulhai was living and he died afterwards unmarried and issueless. Now, if the property was separate, then whether Chulhai remains or not, there was no question of devolution of his share on Shambhu. Then Darbeshwari might not have inherited the property for herself and when Chulhai was there, the Chulhai would have inherited the same. When Chulhai's existence is admitted then Chulhai had inherited the share in all the properties of his father with half and half with Shambhu.
15. It further appears rightly been held by the appellate Court that in the cadestral survey, the names of both Shambhu and Bhikhar were mutated showing their shares half and half and afterwards, during the life time of Shambhu, Darbeshwari dealt with her half share of herself and on behalf of her son Chulhai and it also appears that Shambhu had sold only 15 kathas, that is less than his half share to Jingur before the sale made in favour of Batuk Kuer by Andhiya in the year 1934. Thus, the question of survivorship is totally immaterial in the presence of the circumstances of the case. The original Court had held Ext, D and D/1 sold by Shambhu to Jhingur as unreliable on the ground that in the serista of the landlord, such sale was not mutated and as such, such sale had never taken effect of. But this has been explained by P.W. 16 to the effect that in those days, the sale by the occupancy tenants without the consent of the landlord, are never been recognised and as such the purchasers were not being recorded but for all practical purposes, such sales were taken effect of in the locality. If such sale was not effected or unreliable only because the permission of the ex-landlord was not taken, then in that way, Andhiya's sale to Batuk Kuer also got the same fate as that of sale by her husband Shambhu. So, the reasonings given by the original Court had been rightly discarded by the appellate Court.
16. Thus, it was rightly held by the lower appellate Court that after the sale of Shambhu to Jhingur and by turn, Jhingur to Harihar Sao in the family of defendants, only 3 1/2 kathas land remained in the share of Andhiya which can at best be sold to the plaintiffs predecessor. Then the question comes in whether by such purchase through Ext. 8/A in the year 1934, Most, Batuk Kuer vis-a-vis the plaintiffs by descendency, could be able to get the whole of the mortgage seem redeemed being purchaser of small share out of the mortgagor's property. In this respect, Section 60 of the Transfer of Property Act has been referred to. Wrongly it was mentioned as Section 61 by the original Courts. A person having acquired a part of the mortgagors right can get the whole mortgage redeemed if he pays the whole amount of mortgage but he is not entitled to get redemption of a part of the mortgaged property in respect of his share alone. By referring to that, it has been argued streneously by the learned counsel appearing for and on behalf of the plaintiffs-appellants that even if it is held that the plaintiffs or their predecessor Mosst. Batuk Kuer had acquired only a part of the mortgagor's right in the suit property, then also the plaintiffs are entitled to get redemption of the whole of the mortgaged property if they are ready to pay the whole of the mortgaged amount. It is submitted that in the plaint itself and in the evidence also, it has been specifically mentioned that the plaintiffs were ready to pay-up the whole of the mortgaged amount. In earlier proceeding under Section 82/83 of the Transfer of Property Act also, the plaintiffs had deposited the whole of the mortgaged amount. In that way, even if the right of the plaintiffs towards the whole of the suit property cannot be established then also they are entitled to get redemption of the whole of the mortgage which was admittedly executed by Bhikhar and Shambu in the year 1903 vide Ext. 3/1. But it appears that both the Courts below had not considered a vital point in the present suit. Admittedly, the mortgage related to 1 bigha 6 kathas 4 dhoors the break-up of which is 1 bigha 1 katha 4 dhoors towards south of S.P. Nos. 14 and 5 katha towards east of S.P. No. 161. Thus, the bharna as related to Ext. 3/1, was never in respect of the suit property alone, i.e. 1 bigha 1 katha 4 dhoors towards south of S.P. No. 14. The part of the mortgaged property, i.e. 5 kathas towards east of S.P. No. 162, had never been included for the purpose of redemption by the plaintiffs as they had never purchased any part of S.P. No. 162.
17. If we advert to the same Section 60 of the Transfer of Property Act, the principle remains that a part purchaser of mortgaged property from the mortgagor, can redeem the whole of the mortgage property if he is ready to pay-up the whole of the mortgage money but the part purchaser cannot redeem the mortgage partly according to his share even if he is ready to pay up the whole of the mortgage money because the mortgage property should be construed as a unit and cannot be divisible for the purpose of redemption. It can be redeemed as a whole and not by part. In that way, when the redemption suit related to a part of the mortgage property, the whole claim of redemption of the plaintiffs is unwarranted and uncalled for and cannot be allowed even if it is considered that the plaintiffs have acquired ownership rightly over a portion of suit property measuring 3 1/2 kathas only. Thus, without going to the defence case, as to whether the defendants have acquired right on purchase of equity of redemption from Darbeshwari by oral sale, or whether the defendants have a merge with the right of mortgagee with that of mortgagor by the subsequent purchase etc. when the suit of the plaintiffs is not maintainable in the present form even if taken for granted that the plaintiffs have acquired some right over the suit property by way of purchase to the extent of the share of Mosst. Andhiya excluding the area which had already been sold from the half share of Shambu in the suit plot by Ext. D. As the plaintiffs suit is admittedly in respect of a part of the mortgaged property. The redemption in part is not maintainable.
18. The judgment of the Apex court as reported in AIR 1982 SC 121 Chhaganlal Keshavlal Mehta v. Patel Narandas Haribahai relied by the learned counsel for the appellants, does not support the plaintiffs' case rather that judgment supports the view taken by this Court as mentioned earlier by referring to Section 60 of the Transfer of Property Act the plaintiffs by securing some right towards part of a mortgaged property, cannot get the redemption of the mortgaged property, in respect of his or her share. Thus, on scrutiny of the impugned judgment and points of law as formulated in the appeal, I find that the dismissal of the suit as recorded by the appellate Court, is proper, just and nothing to be interferred with and hence, the appeal is dismissed having no force but in the circumstances, no order as to costs.