Patna High Court
Gauri Shankar Singh And Anr. vs Jadu Gope And Ors. on 8 March, 1963
Equivalent citations: AIR1963PAT384, AIR 1963 PATNA 384, ILR 44 PAT 391
JUDGMENT Tarkeshwar Nath, J.
1. This appeal by defendants 1 and 2 arises out of a suit for redemption of a mortgage bond dated the 9th Phagun, 1307 fasli, in respect of 1.62 acres of khata No. 86 in village Sherpura. The plaintiffs wanted a decree for possession after redemption and mesne profits from ist of Asarh, 1357 fasli, till recovery of possession.
2. According to the genealogical table given in the plaint, Ganesh Bhagat had two sons, Chin-taman Bhagat and Lokha Gope. Cnintaman had three sons and one of them was Tulsi Bhagat. Lokha Gope had three sons, Ramnath, Deochand and Ramsaran. Ramnath's son was Chhedi Gope and Chhedi left two sons, Ruplal Gope and Shishu-pal Gope (defendant 3 and father of defendant 4). Deochand Gope had three sons, Mahabir Gope, Durga Gope and Jadu Gope (plaintiff 1). Plaintiffs 2 to 4 are sons of Mahabir Gope, plaintiffs 5 and 6 are sons of Durga Gope, whereas plaintiff 7 is not of plaintiff 1. Ramsaran had a son whose name also was Chhedi Gope.
1.62 acres of khata 86 in village Sherpura, described in Schedule 'B' of the plaint, belonged to the joint family of Tulsi Bhagat and the ancestors of plaintiffs and defendants 3 and 4. On 9th Phagun, 1307 fasli, Tulsi Bhagat, as karta of the joint family, gave this land in mortgage to Jhakhuri Upadheya for a sum of Rs. 55/- only. On 18-6-1907, Jhakuri transferred the mortgagee's interest to Gokhul Singh, father of defendants 1 and 2, by a registered deed. Shortly afterwards, there was a partition among the members of the joint family of Tulsi Bhagat and the ancestors of the plaintiffs and those of pro forma defendants 3 and 4 and the lands described in Schedule 'B' of the plaint fell to the share of the ancestors of the plaintiffs and pro forma defendants 3 and 4. Plaintiffs' share therein was 2/3rd, whereas that of defendants 3 and 4, 1/3rd. Defendants 1 and 2 were in possession of these lands as mortgagees and the plaintiffs were entitled to get back these lands on redemption of the said bond. Plaintiffs requested defendants 1 and a several times to accept the mortgage dues and deliver possession of the lands, but they paid no heed to it. Defendants 3 and 4 were colluding with defendants 1 and 2 and they were not willing to contribute their share of the mortgage dues. The plaintiffs ultimately deposited the mortgage dues under Section 83 of the Transfer of Property Act in Miscellaneous Case No. 207 of 1950 and the notices of the deposit were served on defendants 1 and 2. Defendants 3 and 4 also were made parties in that miscellaneous case. The amount was still lying in deposit, but defendants 1 and 2 did opt make over possession to the plaintiffs on account of which they were liable for mesne profits from 1st of Asarh, 1357 fasli. On these allegations, the plaintiffs instituted the suit for redemption and other reliefs, as indicated above.
3. Defendants 1 and 2 contested the suit on grounds, inter alia, that the plaintiffs had no right to redeem the said bond, inasmuch as Chhedi Gope, ancestor of defendants 3 and 4, had transferred the lands to their father Gokhul by a registered sale-deed dated 5-12-1921 and Chhedi had full rights to transfer, inasmuch as those lands had fallen to his share by a partition in his family. The plaintiffs had no share in the lands in suit after the allotment of the same in the share of Chhedi Gope. Gokhul had acquired full rights of ownership in respect of the lands in suit and they were no longer mortgagees. They had no knowledge of the deposit made in the miscellaneous case and notices were not served on them. They" denied plaintiffs' right to get either possession or mesne profits. There was no additional written statement by them, in which they claimed right to these lands by adverse possession.
4. The Munsif held that, by partition the lands fell to the share of Chhedi Gope, ancestor of defendants 3 and 4, and so the plaintiffs had no right to redeem. He accordingly dismissed the suit. On appeal by the plaintiffs, the subordinate Judge disagrees with the findings of the Munsif and decreed the plantiffs' suit. Defendants 1 and 2 preferred Second Appeal No. 692 of 1954 in this Court, but the appeal was allowed and the case was remanded to the lower appellate Court for rehearing the appeal after considering all the points which arose in that case and, in particular, the question of adverse possession in the light of the observations made in the judgment. The relevant observation was as follows:
"The question really is what happened from the 5th December, 1921. It is not denied that defendants Nos. 1 and 2 the appellants were in possession from that date and it cannot be said that defendants Nos. 1 and 2 having purchased the equity of redemption were mortgagees and therefore the 'principle that a mortgagee cannot prescribe against the mortgagor, as he remains the mortgagee in possession' does not apply from the 5th December, 1921, onwards. The treatment of question of adverse possession by the lower appellate Court is not therefore satisfactory. The trial Court did not have to deal with this aspect in view of its decision that the defendants are in possession. A submission was also made regarding the finding of the lower appellate Court on the point of partition as the appellate Court did not consider the reasonings of the trial Court. In my opinion on the first point alone this case is fit for remand".
5. The Additional Subordinate Judge, after remand, found that the defendants failed to prove that the lands in question fell by partition to the share of Ramanath, father of Chhedi Gope, thus Chhedi Gope had no right to sell the entire equity of redemption to Gokhul, father of defendants 1 and 2. He further found that Chhedi had only 1/3rd share in the equity of redemption and he was entitled to sell the same only to Gokhul. His other finding was that the plaintiffs had right to redeem 2/3rd, inasmuch as that share of the equity of redemption was not sold to Gokhul. Defendants 3 and 4 had made no claim in respect of the equity of redemption and, for the purposes of the present suit, he held that the plaintiffs were entitled to a decree for redemption of the 2/3rd interest, without deciding finally the question of devolution of Ramsaran's interest between the plaintiffs and defendants 3 and 4, inasmuch as that could be agitated in another suit. He passed a decree in favour of the plaintiffs for redemption to the extent of 2/3rd and mesne profits as well, from 27-5-1950 till delivery of possession in respect of the 2/3rd share in these lands. Defendants 1 and 2 were directed to take out 2/3rd of the mortgage dues deposited in Court and put the plaintiffs in possession of 2/3rd lands. On these findings, he allowed the appeal in part on contest against the contesting respondents and ex parte against the rest. Hence defendants 1 and 2 have preferred this appeal.
6. Learned counsel for the appellants urged that Gokhul, father of defendants 1 and 2, had purchased the lands in suit from Chhedi Gope on 5-12-1921 and since then they were in continuous possession of these lands. His further submission was that, from the date of purchase Gokhul and later on his sons (defendants 1 and 2) asserted their hostile title by being in continuous possession of these lands and their possession was adverse not only to defendants 3 and 4 but also to the plaintiffs and, on that account, plaintiffs' right to redeem, if any, was extinguished long long ago, inasmuch as the suit was filed much after in 1950. His further grievance was that the directions given in the order of remand by this Court were not followed by the learned Subordinate Judge and he omitted to consider the evidence of adverse possession adduced on behalf of the defendants and, on that score as well, his findings were vitiated.
7. The learned Subordinate Judge has found that the defendants' case that the lands in question fell on partition to the share of Ramnath (father of Chhedi) was not correct and learned counsel for the appellants tried to assail this finding as well, but this finding was arrived at on a proper consideration of the evidence and there is no justification for reversing it in this second appeal.
The case has thus to proceed on the footing that the plaintiffs and defendants 3 and 4 were jointly interested in these lands and only 1/3rd share belonged to defendants 3 and 4, the descendants of Chhedi Gope. The question arises as to what was the effect of the sale-deed (exhibit B) dated 5-12-1921 executed by Chhedi Gope in favour of Gokhui, father of defendants 1 and 2. The possession of Gokhui was that of a mortgagee and he had purchased the mortgagee's interest from Jhakhuri. The sale-deed (exhibit B) has been placed before us and Chhedi conveyed the entire lands measuring 1.62 acres by this deed for a sum of Rs. 243/- and, out of the consideration, a sum of Rs. 55/- was adjusted towards the dues of the mortgage bond tind another sum of Rs. 138/-was adjusted in respect of other dues. Besides the adjustment of those dues, Chhedi Gope received a, sum of Rs. 50/- in cash. By execution of this sale-deed in favour of mortgagee Gokhui, the mortgage bond dated the 9th Phagun 1307 Fasli was redeemed in full and nothing remained due in respect of that bond, Chhedi Gope was entitled to transfer his 1/3rd interest only in these lands, but, instead of that, he transferred the entire lands in favour of Gokhui. To put it briefly, the mortgage bond was redeemed, Gokhui acquired a valid title in respect of 1/3rd by this sale-deed (exhibit B) and, in respect of the 2/3rd, which Chhedi had no right to transfer, Gokhui came in possession without any title.
The question which arises for consideration is, as to what was the effect of Gokhul's possession or those of his sons (defendants 1 and 2) in respect of the 2/3rd interest. The learned Subordinate Judge has proceeded on the footing that the status of Gokhui continued as mortgagee and as such, neither he nor his sons (defendants 1 and 2) could be held to be in adverse possession of these lands and he decided the appeal on the footing that the mortgagee could not prescribe against his mortgagor, while being in possession of the mortgaged property. This was, however, not the correct position and the effect of the sale-deed (exhibit B). Section 92 of the Transfer of Property Act provides that any of the persons referred to in Section 91 (other than the mortgagor) and any co-mortgagor shall, on redeeming property subject to the mortgage, have so far as regards redemption foreclosure or sale of such property, the same rights as the mortgagee whose mortgage he redeems may have against the mortgagor or any other mortgagee. The right conferred by this section is called the right of subrogation, and a person acquiring the same is said to be subrogated to the rights of the mortgagee whose mortgage he redeems. Subrogation really means that one person is substituted for another and the person redeeming is substituted for encumbrancer whom he has paid. Both Chhedi and the plaintiffs had the liability to redeem, but Chhedi alone redeemed by paying off the entire dues to the mortgagee Gokhui. Accordingly, under Section 92, Chhedi and, after him, his descendants (defendants 3 and 4) became mortgagees in respect of 2/3rd share as having been substituted in place of Gokhui, but Chhedi or his descendants (defendants 3 and 4) did not take possession of the 2/3rd share in these lands and, on the other hand, Gokhui or defendants 1 and 2 continued in possession of the same. It would thus be not right to say that Gokhui continued in possession as a mortgagee and the view taken by the learned Subordi-nate Judge cannot be upheld.
8. Next question is as to what rights Gokhui or his sons (defendants 1 and 2) asserted by their continuance in possession of the 2/3rd interest in these lands. Learned counsel for the appellants pressed before us that Gokhui prescribed not only as against defendants 3 and 4 but as against plaintiffs as well, and he referred to a Full Bench decision of the Madras High Court in the case of Periya Aiya Ambalam v. Shunmuga-sundaram, ILR 38 Mad 903 : (AIR 1914 Mad 334 (2) (FB) ). The question referred to the Full Bench was as follows: -
"Where a trespasser dispossesses a mortgagor in possession (the mortgage being simple) or a mortgagee in possession (where the mortgage is usufructuary), is such possession of the trespasser adverse against the simple mortgagee in the one case or against the mortgagor who is not entitled to possession in the other case?"
The reply to that question was that possession might be adverse but whether it was so or not in any case would depend upon the facts of each case. Their Lordships did hot express any opinion on the question as to whether the possession of a trespasser who dispossessed a mortgagor in possession was adverse against a simple mortgagee, because it did not arise in that case.
Sankaran Nair, J., observed in that case as-follows:
"..... an equity of redemption may be lost by adverse possession; but for that purpose it is not sufficient for a trespasser, who has ousted a mortgagee, to prove that possession is held on an exclusive title, without also showing that it was acquired and retained with an assertion of an adverse title to the knowledge of the mortgagor".
In Sri Kishun Raut v. Ram Brich Singh, AIR 1960 Pat 43 as well, it was held that if a third person dispossessed the mortgagee in possession and remained in possession of the mortgaged property for more than 12 years by asserting a hostile and independent title not only against the mortgagees but also against the mortgagor to his knowledge, he acquired full title not only against the mortgagee but also against the mortgagor with the result that the mortgagor could not claim redemption.
In that case, however, the defendants, who were claiming right by adverse possession, had filed a petition before the Survey officer during the revisional survey operation alleging that the land in question belonged to them as raiyats but in the revisional survey record of rights the names of other persons had by mistake been recorded as raiyats describing the respondents (defendants) as zarpeshgidars. They had thus wanted a correction to be made and to record their names as raiyats and not as zarpeshgidars. Their prayer was allowed and the plaintiffs of that suit were asked to go to the Civil Court for redress of their grievances. On those facts, it was held that there was a clear case of assertion of hostile independent title to the lands in dispute not only against the mortgagee but also against the mortgagors to the latter's knowledge.
Learned counsel referred to another decision of this Court in the case of Sarjug Devi v. Dulhin Kishori Kuer, AIR 1960 Pat 474. In that case, Kanhaiya Singh, J., following the Full Bench decision of the Madras High Court in ILR 38 Mad 903 : (AIR 1914 Mad 334 (2) ) (referred to above) held that the equity of redemption which a mortgagor possesses may be lost by prescription, but before it can be said to be lost, it has to be seen whether the trespasser had continued in possession asserting title adverse to the mortgagor also and to his knowledge. The position thus is that where a third person alleges dispossession of a mortgagor, he has to prove that he asserted a hostile title to the knowledge of the mortgagor from the time of assertion. The trespass has to be open, adverse and hostile for the requisite period. The onus of proving in the present case that the possession of Gokhul or defendants 1 and 2 was adverse to the plaintiffs (mortgagors) was on defendants r and 2 and the question is whether they have discharged that onus satisfactorily.
9. Defendants 1 and 2 claim that they have adduced evidence to prove their adverse possession, but it is unfortunate that the learned Additional Subordinate Judge did not deal with that evidence, in spite of the directions of this Court in the second appeal referred to above. Instead of remanding the case once again to the lower appellate. Court, which would have meant further delay in the final disposal, we decided to consider the evidence ourselves under Section 103 of Civil Procedure Code and determine as to whether the defendants had established their adverse possession in respect of the 2/3rd interest in these lands. (His Lordship considered the evidence and proceeded.) The onus, was, however, on defendants 1 and 2 to establish that they were in adverse possession and I have already indicated that they failed to discharge this onus.
10. Another question in the present appeal is, as to whether the plaintiffs are entitled to redeem 2/3rd share or 1/3rd share. Plaintiffs did not disclose in the plaint as to how they had acquired 1/3rd interest of Ramsaran in the equity of redemption, but they made out at the trial that Chhedi son of Ramsaran, had sold his interest in the equity of redemption to them by a sale deed (Exhibit 4) of the year 1948. Defendants did not admit that Chhedi (P. W. 6) was son of Ram-saran. Plaintiffs examined P. W. 6, the vendor of that sale-deed, but the Subordinate Judge held that the said witness was not the son of Ramsaran and pointed out that it was not known as to who were the heirs of Ramsaran at the time of his death in the branch of Lokha Gope. In this view of the matter, he passed a decree in favour of the plaintiffs for redemption of the 2/3rd interest.
Learned counsel for the appellants referred to the last paragraph of Section 60 of the Transfer of Property Act and submitted that, in the present case, the integrity of the mortgage having been broken up and the mortgagee having acquired a share of the mortgagor, plaintiffs were entitled to redeem their share only which was to the extent of 1/3rd. Section 60 deals with the rights and liabilities of mortgagor and the last clause provides that "nothing in this section shall entitle a per-son 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".
A contract of mortgage is indivisible, but in certain cases the mortgage security can be split up, The integrity of the mortgage in this case has been broken up as the mortgagee acquired in part the share of Chhedi, one of the heirs of the original mortgagor. There is a bar on a piecemeal redemption of a mortgage, but in a case a mortgagee acquires either in whole or in part a share of a mortgagor, then it is open to a mortgagor to redeem his share only.
Learned counsel for the appellants referred to the case of Mt. Jagannath Kunwar v. Jaipal, AIR 1933 All 257 (FBJ in support of his contention, that it was not open to the plaintiffs in this case to redeem more than 1/3rd share. It appears from this reported decision that one Gobind Singh was the owner of 2 annas 8 pies share in several villages. He had 8 sons including one Rajpal. All the sons except Rajpal gave in usufructuary mortgage 2 annas 4 pies share for 15 years to Har Mangal Singh and the latter was represented by the defendants in the suit out of which that appeal arose. Plaintiff-respondent 1 in that appeal had sued to recover the entire property mortgaged except a two pies share which was purchased by the mortgagee, on payment of a proportionate amount of the mortgage money, which was Rs. 600/-. The plaintiff was the purchaser of 18 2/7 pies which belonged to the branches of Din Dayal, Ram Roshan Harnam and Ajit (sons of Gobind Singh). The branch of Kalu, who also was a son of Gobind, had, become extinct and thus his 4 pies share was inherited by the remaining 7 branches. In that way, the share of each branch was augmented by 4/7 pies. The defence to the action was that different branches of the mortgagor's family had executed certain deeds by way of a further charge and thus, the plaintiff could not recover the property, without payment of the amount borrowed by and due on foot of those deeds of further charge. It appears that there were four documents and the Courts below had taken different views on the question as to which one of them created a charge. A question arose as to what was the liability in respect of the properties under those four unregistered documents. It was contended that for the purposes of determining the liability the several shares which belonged to the several branches should be separated and a decree should be passed on that basis. In that connection, it was observed that the defendants (mortgagees) having purchased a two pies share by the deed of 1883 out of the properties mortgaged to them, the integrity of the mortgage had been broken up and as such, it was not open to the plaintiff to redeem? more than the share purchased by him. The deeds of further charge were taken into consideration. The shares which belonged to the different branches were separated and a direction was given that a certain share was redeemable on payment of a certain amount. The rights of the different parties were worked out and the several portions redeemable were specified separately. The last paragraph of Section 60 of the Transfer of Property Act did not come up for consideration and there was no reference to it. In these circumstances, this decision is not of any assistance to the appellants.
Learned counsel further referred to the case of Abdul Wahab v. Raghunandan Lal, AIR 1945 All 388. In that case two brothers Ayoob Khan and Sardar Khan had granted a usufructuary mortgage to Abdul Wahab Khan on 4-7-1903 for Rs. 950/-. On 30-6-1927 Ayoob Khan sold his share in the two plots to Abdul Wahab Khan, with the result that there was a coalition of the rights with regard to the share of Ayoob and to that extent Abdul Wahab Khan became full owner. Sardar Khan pre-empted that sale and the suit was decreed on 22-2-1928. On 28-3-1929, Sardar sold his rights to Raghunandan and the latter obtained formal possession on 11-8-1930. Raghunandan brought a suit in 1936 for redemption and it was decreed on the usual condition of depositing a certain amount within a certain time, but he failed to comply with that condition, with the result that the suit was dismissed. In 1943, Raghunandan made an application for redemption under Section 12 U. P. Agriculturists' Relief Act and the Munsif held that he was entitled to redemption only of the share of Sardar Khan still in the hands of Abdul Wahab Khan, but not with regard to the share of Ayoob. This view was not approved by the Civil Judge and he held that the suit should have been decreed in its entirety. Hence the mortgagee moved the High Court in revision. It was held in that case that the effect of the purchase by Abdul Wahab on 30-6-1927 was to make him the full owner of the half share of Ayoob, inasmuch as that sale was made in discharge of the liability of Ayoob arising out of the mortgage. It was observed that when Sardar obtained a decree for pre-emption, he became immediately entitled to obtain possession of the property and if he obtained possession soon after, i. e., within a year or so of the date of the decree, the present suit, instituted after 12 years of that date, was obviously barred by limitation. The right to obtain possession accrued on 28-3-1929 and that right could be availed of only for 12 years and not after. On behalf of Raghunandan (opposite party) it was urged that Section 60 of the Transfer of Property Act entitled him to redeem the whole of the mortgage, but it was observed that the integrity of the mortgage having broken after the purchase by Abdul Wahab of the share of Ayoob on 30-6-1927, Abdul Wahab was entitled to say that Sardar or his transferee could represent only his own share and not that of Ayoob Khan. Sinha, J., further observed that the suit was for mere redemption and the plaintiff, as a representative of Sardar, was entitled to claim redemption with respect to the rights of his transferor only and any other question was foreign to the scope of that suit. This decision has proceeded not only on the ground that the last paragraph of Section 60 of the Transfer of Property Act was in support ot the case of the petitioner Abdul Wahab but also on other grounds. Besides that, the last paragraph of Section 60 makes a provision for the redemption of a share in certain cases. There is no bar, according to this provision, to the redemption of a share belonging to another co-mortgagor.
With respect, I find it difficult to accept the view taken by Sinha, J., in AIR 1945 All 388. Learned counsel referred to Sheo Narain Sahu v. Ram Nirekhan Ojha, AIR 1919 Pat 399. In that case, plaintiff's father had obtained a mortgage decree on 9-9-1908 against one Mahabir. In that litigation the appellant the purchaser of a portion of the mortgaged property in execution of a money decree in 1906 was not impleaded as a party defendant. On 11-1-1917 the plaintiff-respondent instituted a suit out of which that appeal arose against the defendant-appellant for possession of that portion of the mortgaged property which had passed into the possession of the appellant by virtue of the execution sale held in pursuance of the money decree obtained in 1906. The defendant-appellant, in answer to the plaintiff's action, claimed the right to redeem the whole of the mortgaged property, and not merely that part of it which was in his possession. The question thus arose as to whether a purchaser of a portion of the equity of redemption who had been left out of the mortgage action, could be compelled to redeem only that portion of the mortgaged properties which had passed into his possession by such purchase. It was pointed out in that case that the plaintiff, who was the mortgagee, had acquired the entire share of the mortgagor, except such share which had passed to the defendant by his purchase. The equity of redemption was thus in two different persons, namely, the plaintiff and the defendant, with the result that the integrity of the mortgage security was broken up. In those circumstances, it was observed that a purchaser of a portion of the equity of redemption was clearly entitled to claim partial redemption, Das, J., further observed as follows:
"In my opinion, whenever a person is entitled to claim partial redemption, he may also be compelled to redeem that portion of the mortgaged properties in which he may be interested. If this were not so it would require two litigations to work out the equities between the parties. If the defendant were entitled to redeem the whole of the mortgaged property he would have a charge on the share of his co-mortgagor (in this case, the plaintiff, in whom has vested the remaining interest of the mortgagor) as security for the amount which he has paid in excess of his own proportionate share of the mortgage debt."
The defendant, in that case, could say that he had a right to redeem the whole of the mortgaged property and the plaintiff's answer to that could be that he had a right to pay his proportionate share of the mortgage debt and retain the property which he had purchased, free from any charge. In order to meet a case like that, the last paragraph of Section 60 of the Transfer of Property Act was enacted. It is important to keep in view that in that case the equity of redemption rested in two persons only, i.e., the plaintiff and the defendant, and thus both had a right to redeem. There was no third person who had any right or interest in the equity of redemption and thus, the rights of the plaintiff and that of the defendant had to be worked out in that suit. It was not a case where the plaintiff was trying to redeem the share of any other co-mortgagor. Only two persons having the right to redeem, it was held that the purchaser of a portion of the equity of redemption had right only to that portion which had passed into his possession by such purchase. The observation made in that case has to be read along with the facts of that particular case.
Learned counsel for the appellants referred to the case of Puma Chandra v. Gobinda, ILR 27 Pat 572 : (AIR 1952 Pat 101). In that case, the mortgaged property consisted of a one anna share in a Kheraj Brahmottar interest in village Met-tala. That interest to the extent of four annas was held by four brothers, Hari Lall Tewari, Madhu Lall Tewari, Thakur Lall Tewari and Jatan Lall Tewari, each having an interest of one anna. Jasodanandan Tiwari (defendant 5), grandson of Madhu Lall Tewari, mortgaged one anna interest on 26-5-1921 to Siva Narayan Mishra, father of defendants 1 to 3, and husband of defendant 4. On 3-11-1924, the Tewaris of. the four branches executed an arpannama dedicating some of the Kheraj brahmottar interest to Sri Sri Durga Mata for the purpose of Durga Puja and this arpannama included some of the mortgaged properties. The mortgagee instituted a suit in 1934 on the foot of his mortgage and got a decree for sale, but the deity was not impleaded in that suit. In execution of the said decree, Kanai Lal Mudi (defendant 6} purchased the mortgaged property on 9-12-1935 in full satisfaction of the decretal dues and got delivery of possession on 3-4-1936. Later on, he sold his interest to defendants 8 and 9 and the latter too transferred a three pies share out of the said interest to defendants 10 to 13. The deity represented by some of the shebaits instituted the suit out of which that appeal arose for redeeming the entire mortgage. One of the defences was that the plaintiffs were entitled to redeem only the property covered by the grant and not the entire mortgaged property and this objection was upheld by the Munsif. On appeal by the plaintiffs, the Subordinate Judge also took the same view. The plaintiffs preferred a second appeal and contended that they were entitled to redeem the entire mortgage and not merely the portion affecting the property dedicated to the deity. While dealing with this point, the last paragraph of Section 60 of the Transfer of Property Act was referred to and Reuben, J., (as he then was) observed thus :
"By the purchase at the sale in execution of the mortgage decree, the purchaser acquired not merely the rights of the mortgagor but also the rights of the mortgagee. The effect of the sale, therefore, was the same as it would have been if the purchase had been made by the mortgagee himself. In the sale, what was put up to be sold was the equity of redemption in the property. That sale, when it was confirmed, became effective against all persons interested in the equity of redemption, except the Deity, who, not having been impleaded, retained her right to redeem. The result of the sale, therefore, was that the purchaser, who stood in the position of the mortgagee, acquired an interest in a part of the mortgaged property. This under the provisions of the last paragraph of Section 60 is sufficient to sever the integrity of the mortgage, and the plaintiffs can only sue for partial redemption."
His Lordship then referred to the decision of Das, J., in the case of AIR 1919 Pat 399 and quoted certain passages from that decision.
In this reported case as well, the purchaser (defendant 6) had purchased the mortgaged property in full satisfaction of the decretal dues and the result of that sale was that the purchaser acquired the rights of all the mortgagors except the deity who was not impleaded in the mortgage suit. The equity of redemption was thus left only in two persons, the purchaser and the deity. There was no third person who had any right to redeem any portion of the mortgaged property. The plaintiffs in that case were not seeking to redeem the share of any other co-mortgagor and this is the distinction between the facts of that case and the present case which is before us. His Lordship further pointed out in that case, that if the plaintiffs were permitted to redeem the entire mortgage they would not thereby be entitled to recovery and retain possession of the entire mortgaged property and their right against the contesting defendants was merely to claim contribution. In a situation like that, the equities between the parties would have to be worked out in a subsequent suit, but instead of adopting that course, which would have meant another litigation, it was held that it was proper to allow only partial redemption. I am accordingly of the view that the learned counsel cannot take any assistance from these two decisions of this Court on the facts and circumstances of the present case.
The opening words of Sec. 91 of the Transfer of Property Act are that "besides the mortgagor, any of the following persons may redeem, or institute a suit for redemption of, the mortgaged property''.
It deals with the right of other persons as well to redeem, but a mortgagor has certainly a right to redeem. Section 95 of the said Act envisages as to what are the rights of a redeeming co-mortgagor on redemption. There can thus be no doubt that one of the several mortgagors can redeem the share of a co-mortgagor. This view is supported by the decision in the case of Pala Singh v. Attar Singh, AIR 1954 Punj 81, where it was observed that Sections 91 and 95 of the Transfer of Property Act gave to the mortgagor of a share a right to redeem the whole of the mortgage. Their Lordships did not agree with the rule laid down in AIR 194.5 All 388. I would thus hold that it is open to the plaintiffs in the present case to redeem 2/3rd share of the mortgaged property, without deciding the question inter se between the plaintiffs and the heirs of Ramsaran Gope. The learn ed Additional Subordinate Judge has directed that defendants 1 and 2 should take out 2/3rd of the zarpeshgi money deposited in court, but this part of the order cannot be upheld, inasmuch as those defendants are no longer mortgagees in respect of the 2/3rd interest after the redemption of the entire mortgage bond. Defendants 3 and 4 are the heirs of Chhedi Gope and they being the sub-rogated mortgagees they are entitled to take out 2/3rd of the zarpeshgi money deposited in Court. The plaintiffs are entitled to redeem the 2/3rd interest from defendants 3 and 4, but they are entitled to a decree for possession in respect of that interest against defendants 1 and 2 who have been in possession of the properties throughout.
11. Learned counsel for the appellants finally submitted that the plaintiffs were not entitled to mesne profits in this case, inasmuch as the plaintiffs wanted to redeem the entire property which they were not entitled to. He further urged that, either the tender or the deposit of the mortgage dues in the present case could not be held to be unconditional and on that score, the plaintiffs should not be given a decree for mesne profits. There is force in this contention. The plaintiffs stated in paragraph 12 of the plaint that they deposited the entire mortgage money in Miscellaneous Case No. 207 of 1950 in favour of defendants 1 and 2 and they sought a relief for redeeming the mortgaged properties described in Schedule 'B' of the plaint. In view of the finding that the plaintiffs were not entitled to redeem the entire mortgaged property and that they are entitled to redeem from defendants 3 and 4 it will not be proper in this case to saddle defendants 1 and 2 with the liability for past mesne profits. The plaintiffs will, however, be entitled to mesne profits from defendants 1 and 2 if they fail to deliver possession to the plaintiffs in respect of the 2/3rd share in the mortgaged lands within a period ol four months.
12. In the result, the appeal is allowed in part and the judgment and decree of the Additional Subordinate Judge are modified to this extent that the plaintiffs' suit for redemption is decreed in respect of the 2/3rd share in the mortgaged lands and they are entitled to redeem the bond in question to the extent of 2 / 3rd from defendants 3 and 4, who are entitled to take out 2/3rd of the zarpeshgi money deposited under S, 83 of the Transfer of Property Act in Miscellaneous Case No. 207 of 1950, within a period of four months. The plaintiffs will be entitled to withdraw 1/3rd of the zarpeshgi money deposited in that case. The plaintiffs are further entitled to a decree for possession against defendants 1 and 2 in respect of the 2/3rd share of the mortgaged lands and defendants T and 2 are directed to put the plaintiffs in possession of that share within a period of four months, failing which the plaintiffs will be entitled to mesne profits against them after the expiry of four months till delivery of possession in respect of that share. In the circumstances of the present case, the parties will bear their own cost throughout.
Mahapatra, J.
13. I agree.