Punjab-Haryana High Court
Smt. Surjit Kaur Widow Of Sh. Dalip Singh ... vs Kewal Singh And Others on 7 August, 1990
Equivalent citations: AIR1991P&H205, AIR 1991 PUNJAB AND HARYANA 205, (1991) 2 CURLJ(CCR) 300, (1991) 1 LANDLR 137, (1991) 1 RRR 154, (1991) 1 LJR 88, 1991 HRR 34, (1990) 2 PUN LR 527, (1991) CIVILCOURTC 197, 1990 REVLR 2 323, 1990 PUNJ LJ 597
ORDER G.R. Majithia, J.
1. This regular second appeal is directed against the judgment and decree of the first appellate Court reversing on appeal those of the trial Court and decreeing the suit for possession by redemption of 2/3rd share of the mortgaged land in dispute.
2. The facts :--
Dial Singh, Thakar Singh sons of Bhagat Singh. Sunder Singh, Inder Singh sons of Banna Singh, owners of of land measuring 13 Kanals 16 Marias comprised in Khasra Nos. 14/14/1, 13/3, 14/1 and 14/2situated in village Khara, Tehsil Tarn Taran, District Amritsar. They mortgaged this land with possession for 12 years with Dalip Singh, predecessor-in-interest of the appellants and respondents 4 to 6 (hereinafter referred to as the defendants) for Rs. 17,440/- vide registered mortgage deed dated April 5, 1973. The plaintiffs (respondents 1 to 3 in this appeal) purchased 2/3rd share of the aforesaid land measuring 13 Kanals 15 Marias vide registered sale deed dated June 26, 1980 from Hira Singh, Jarnail Singh sons of Sunder Singh son of Banna Singh, Harbans Singh son of Gian Singh and Sewa Singh and Charan Singh sons of Inder Singh, after the death of the original mortgagors. The plaintiffs filed a suit for redemption of 2/3rd share of the mortgaged land on payment of the proportionate mortgage amount of Rs. 11,667/-. They also challenged the order of the Collector 1st Grade, Tarn Taran vide which their application for redemption was dismissed under the Redemption of Land Mortgages Act.
3. The suit was contested by the defendants, namely, Harbhajan Singh, Dilbag Singh and Smt. Surjit Kaur. They pleaded adverse possession and that suit for redemption was not maintainable as their application filed for redemption was earlier rejected.
4. The pleadings of the parties gave rise to the following issues :--
1. Whether the plaintiffs purchased the suit property and are entitled to redeem the mortgage? OPP.
2. Whether the suit is not maintainble in view of preliminary objection No. 1 of the written statement? OPD
3. Whether the defendants have purchased the property in dispute if so its effect? OPD
4. Relief.
5. Issue No. 1 was found in favour of the plaintiffs. Issue No. 3 was answered against the defendants. It was held that they had not purchased any part of the mortgaged property. Issue No. 2 was answered against the plaintiffs and it was held that the suit for partial redemption was not maintainable.
6. The plaintiffs aggrieved against the judgment of the trial Judge challenged the same in the first appellate Court and the first appellate Court relying upon the judgment in Hira Singh v. Hari Singh, 1985 PAP 180 (Punjab and Haryana) (sic) held that the suit for partial redemption of mortgage was competent. It is the correctness of this judgment which has been challenged in this second appeal.
7. Section 60 of the Transfer of Property Act deals with right of a mortgagor to redeem the mortgaged properly. The last paragraph of this section reads thus :--
"60. Right of mortgagor to redeem.-
xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx Redemption of portion of mortgaged property.-- Nothing in this section shall entitle a person interested in a share only of the mortgaged property to redeem his own share only, on payment of a proportionate part of the amount remaining due on the mortgage, except only where a mortgagee, or, if there are more mortgagees than one, all such mortgagees, has or have acquired, in whole or in part, the share of a mortgagor."
It lays down a general rule that nothing in this section shall entitle a person interested in a share only of the mortgaged property to redeem, his own share only on payment of a proportionate part of the amount remaining due on the mortgage. It prohibits piecemeal redemption. It recognises the principle of indivisibility of the mortgaged property. The mortgagee cannot be required to permit redemption of a part of a property mortgaged. A part owner or a purchaser of a part of equity or redemption can redeem the whole mortgage. He cannot redeem his share only. A mortgage is indivisible; it has to be redeemed entirely or not at all. So long as the integrity of the mortgage is not broken every square inch of the property remains liable to satisfy every part of the debt due under the mortgage. The character or indivisibility of the mortgage exists not only with reference to the mortgagee but also with reference to the mortgagor and save by the special arrangement between all the parties interested, neither the mortgagor nor the mortgagee, nor persons acquiring a partial interest through either can obtain relief under the mortgage except in consonance with the principle of indivisibility. The mortgage remains one and undivided and if it is to be redeemed, it can be redeemed in its entirety. The integrity of the mortgage would not be broken by purchase of a part. Reference can usefully be made to a decision of this Court in Naurang Singh v.
Jangir Singh, AIR 1985 Punj & Har 268, wherein it was held as under-
"Where one only of a number of mortgagees has acquired by purchase a part of the mortgaged property it cannot be said that the mortgage over that portion has merged in the sale. The purchaser-mortgagee is in no different position from an outsider so far as his rights conferred by his purchase are concerned. The mortgage remains one and undivided, and if redeemed at all can only be redeemed in its entirety. The purchaser-mortgagee cannot insist that the mortgagor should redeem only that part of the property which has not been pruchased."
8. In view of the above enunciation of law, the plaintiffs were not entitled to redeem only part of the mortgage.
9. The learned lower appellate Court decreed the suit of the plaintiffs relying upon the judgment in Hira Singh's case (supra). In that case, one of the mortgagees had become the owner of the property during the subsistence of the mortgage and in that situation, it was held that excluding his share in the mortgaged property, the remaining land could be redeemed. The ratio of this judgment is not applicable to the facts of the instant case.
10. Thus, for the reasons stated above, the appeal succeeds. The judgment and decree of the first appellate court are set aside and that of the trial Court are restored. However, the dismissal of the suit will not bar the plaintiff from filing a fresh suit for redemption of the entire mortgaged property. In the circumstances of the case, I make no order as to costs.
11. Appeal allowed.