Patna High Court
Sheo Narain Sahu vs Ram Nirekhan Ojha on 30 July, 1919
Equivalent citations: 52IND. CAS.512, AIR 1919 PATNA 399
JUDGMENT Das, J.
1. On the 9th September 1908, plaintiff's father obtained a mortgage decree against one Mahabir. In that litigation the appellant, the purchaser of a portion of the mortgaged properly in execution of a money decree in 1906, was not impleaded as a party defendant. On the 11th January 1917, the respondent commenced the action out of 'which this appeal arises against the appellant for possession of that portion of the mortgaged properties 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 appellant, in answer to the plaintiff's action, claims the right to redeem the whole of the mortgaged property, and not merely that part of it which is in his possession, and the substantial question which I have to determine in this appeal is whether a purchaser of a portion of the equity of redemption who has been left out of the mortgage action, can be compelled to redeem only that portion of the mortgaged properties which have passed into his possession by such purchase.
2. It may be conceded that a person, who has any right to redeem, has a right to redeem the whole of the mortgaged property, and not a part of it, unless there is a special bargain. Hall v. Reward (1886) 32 Ch.D. 430 : 55 L.J. Ch. 604 : 54 L.T. 810 : 34 W.R. 571. But an important exception has been engrafted on this general rule, namely, that a person has a right to redeem his own share only where a mortgagee has acquired, in whole or in part, the share of the mortgagor. The general rule is, of course, based on the principle that a mortgage is one and indivisible, and that the property comprised in it is in its entirety security for the entire debt and for every part of it; but the general rule cannot obviously apply when the integrity of the mortgage is broken up. In the case before me the plaintiff, who is the mortgagee, has acquired the entire share of the mortgagor, except such share which passed to the defendant by his purchase. The equity of redemption is now in two different persons, namely, the plaintiff and the defendant, with this result that the integrity of the mortgage security is broken up, In such circumstances, it is' well-settled that a purchaser of a portion of the equity of redemption is clearly entitled to claim partial redemption. See Hari Kissen Bhagat v. Veliat Hossein 30 C. 755 : 7 C.W.N. 723, Gangadas Bhattar v. Jogendra Nath Mitter 11 C.W.N. 403 at p. 412 : 5 C.L.J. 315 and Hamida Bibi v. Ahmad Hussain 1 Ind. Cas. 779 : 31 A. 335 : 6 A.L.J. 387. 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 this case, says: "I have a right to redeem the whole of the mortgaged property and I claim the right to redeem the whole of the mortgaged property." To this, the plaintiff has a right to reply as follows: Very well, redeem the whole of the mortgaged property, but I claim the right to pay my proportionate share of the mortgage debt and retain the property which I have purchased, free from any charge." It was exactly to meet a case like this that the last paragraph of Section 60 of the Transfer of Property Act was enacted. As the learned Judges in the case of Sobha Sah v. Inderjeet 5 N.W.P.H.C.R. 148 said: "The whole estate, as to one portion of the property, has merged in the mortgagee, and the mortgagor, if compelled to redeem by payment of the whole debt, would have to sue the mortgagee for contribution afterwards, and thus by two suits between the same parties attain the result which under the law as above interpreted is now attained by one suit."
3. In my judgment, the lower Appellate Court has taken an entirely correct view of the law. I would, therefore, dismiss this appeal with costs.