Macleod, C.J:—

The plaintiff, Jadhav Gopal, brought this suit for redemption against Samal Bechar, defendant No. 1, and four other defendants with whom I am not concerned in this appeal. The plaintiff sued to redeem land measuring seven acres and nine gunthas originally mortgaged by one Jesang Umed in 1839 to Vithal Ranchhod, the ancestor of the defendants. Vithal's family separated into two branches; one branch dealt with three acres and twenty gunthas of the mortgaged land and the other branch dealt with the remainder. Bechar sub-mortgaged three acres and twenty gunthas in 1878 to the present plaintiff's father. In 1922 plaintiff's father acquired the right to the equity of redemption of all the property. It is conceded that his claim to redeem the land now in possession of the defendants, other than defendant No. 1, has become barred by limitation.

With regard to defendant No. 1 it was contended that the mortgage of 1839 was kept alive by an acknowledgment made by the father of defendant No. 1 by the sub-mortgage of 1878. The trial Court found that the plaintiff was entitled to redeem, and that on taking accounts nothing was due.

I should have mentioned that a companion suit was filed by Samal Bechar to redeem the sub-mortgage, in which it was found that nothing was due on the sub-mortgage, and, therefore, the present plaintiff as sub-mortgagee had been paid off. The sub-mortgage, therefore, goes out of the case.

The appellate Judge held that the acknowledgment relied upon by the plaintiff which was to be found in Exhibit 17, the sub-mortgage of 1878, was not capable of keeping alive the right of redemption as against the portion in the possession of the mortgagee. He relied principally on the decision in Bhogilal v. Amritlal. The facts in that case were entirely different. The acknowledgment relied upon was given by one Jagjivandas, a managing partner in the firm of Kasandas, the original mortgagees under a mortgage of 1816. The acknowledgment was contained, as in this case, in a sub-mortgage to a third party. The plaintiff in the suit having purchased the equity of redemption from the descendants of the original mortgagor, filed a suit in 1887 to redeem the mortgage of 1816. It was held that the acknowledgment by Jagjivandas, whether as manager of the firm or as one of the heirs of the original mortgagee, was not under Article 148 of the Indian Limitation Act IX of 1871. It was admitted by Justice Jardine that the case was one of first impression. There was no authority cited from the Indian Law Reports, but the learned Judge relied upon a decision of the Chief Court of the Punjab. Justice Telang said that he was not entirely satisfied with the reasoning contained in that judgment, but he was not prepared to differ from his colleague.

But we are now concerned with an entirely different state of facts to be considered with reference to the Indian Limitation Act of 1908. It is true that the heirs of the original mortgagee split up the mortgage. But they cannot take advantage of that fact to defeat the rights of the mortgagor to redeem. In my opinion though the plaintiff, owing to the bar of limitation, could not redeem half the property from one branch, he was entitled still to claim to redeem on payment of what was due on the mortgage the remaining half in the possession of the first defendant, if his suit was within time. It is to the advantage of the first defendant, that he is entitled to an account of the whole mortgage before he can be directed to hand over possession to the mortgagor. If there was no question of limitation, then undoubtedly the mortgagor would have to make all the parties interested in the mortgage, parties to the redemption suit, and they would all be entitled to take part in the hearing of the action. The principle to be observed is that one of several mortgagees cannot restrict the rights of the mortgagor to redeem unless he can show that he has been in some way prejudiced. Now it cannot be said that defendant No. 1 will in any way be prejudiced by the plaintiff mortgagor being allowed to redeem, as he can only be allowed to redeem on paying the whole amount that may be due on taking the mortgage account. It makes no difference to the operation of the general principle that as a matter of fact in this case the mortgage has been paid off out of the profits.

In my opinion, therefore, the appeal succeeds and the decree of the trial Court must be restored with costs in this Court and in the Court below.

On appeal under the Letters Patent against the decision, Madgavkar, J. upheld the view entertained by the District Judge while Patkar, J. agreed with the decision of Macleod, C.J Their Lordships, having thus differed in opinion, delivered the following judgments on November 21, 1927.

Madgavkar, J.:— The question in this appeal is whether the plaintiff-respondent's right to redeem the mortgage of 1839 made by his predecessor-in-title is barred by limitation, or whether it is saved by the recital in a sub-mortgage of 1878 of a moiety of the property.

The facts found by the trial Court and the District Court are as follows. In 1839 Jesang mortgaged seven acres and nine gunthas to Vithal with possession. On Vithal's death his grandsons Bechar and Bhukhan entered into separate possession each of a moiety of the mortgaged land. In 1878 Ishvar's son Bechar sub-mortgaged with possession his moiety and some other lands in his possession to the appellant's father Gopal. In 1914 the appellant purchased the equity of redemption of the mortgage of 1839 from the heirs of the original mortgagor Jesang. In 1920 Bechar's son Samal, defendant No. 1 appellant, brought a Suit No. 334 of 1920 against the plaintiff-respondent to redeem the sub-mortgage of 1878. In 1921 the plaintiff-respondent brought the present Suit No. 221 of 1921 against defendant No. 1 appellant and all the heirs of the original mortgagee for redemption of the mortgage of 1839. Defendant No. 1 respondent alone defended the suit on the ground that the period of redemption expired in 1899 and time was not extended by the recital in the sub-mortgage of 1878.

The trial Court held in the suit of 1920 that the sub-mortgage could be redeemed and on taking accounts nothing was due on the sub-mortgage. In the suit of 1921 it held that limitation was saved in regard to the sub-mortgaged moiety by the recital in the sub-mortgage and allowed redemption of this moiety only, taking account, however of the entire mortgage amount of 1839 but found nothing due.

In appeal by defendant No. 1, Samal, the District Court held that the mortgage was not split up and that on the law as laid down in the case of Bhogilal v. Amritlal limitation was not saved. It, therefore, allowed the appeal and dismissed the claim of the plaintiff-respondent, Jadhav, to redeem.

In second appeal to this Court by the plaintiff, Macleod, C.J, sitting singly, distinguished the case of Bhogilal v. Amritlal above and laid down that (p. 548) “The principle to be observed is that one of several mortgagees cannot restrict the rights of the mortgagor to redeem unless he can show that he has been in some way prejudiced.” The learned Chief Justice allowed the plaintiff's appeal and restored the decree of the trial Court allowing redemption of defendant No. 1's moiety. The decision is reported at 28 Bom. L.R 545.

Defendant No. 1 files the present appeal under the Letters Patent.

In the sub-mortgage (Exhibit 17) of 1878 the recital runs as follows:—

“The land of three acres and twenty gunthas out of the Vanta land bearing No. 655 or admeasuring eleven acres and eleven gunthas was kept under mortgage by my ancestor from Jesang Umed.”

The heirs of the original mortgagee in enjoyment of the portion of the mortgaged property which was not sub-mortgaged are not parties to the present appeal, and against the decree refusing redemption of the portion not sub-mortgaged there has been no appeal by the plaintiff.

The actual issue in the present case lies, in my opinion, within a narrow compass. The general rule is that a mortgage is one and indivisible and so remains unless and until it is split up with the consent of both the mortgagor and the mortgagee. Neither the property nor the burden can be divided without the consent of both. An acknowledgment under section 19(1) of the Indian Limitation Act must be signed by the party against whom the right is claimed. Under section 21, clause (2), of that Act, in the case of a joint contract, an acknowledgment signed by one of several joint contractors cannot bind the others.

Accordingly, it was held in Bhogilal v. Amritlal that under Article 108 of the Indian Limitation Act (IX of 1871) the expression “some person claiming under him” meant “some person claiming the entirety of the mortgagee's right, and an acknowledgment by a person whether as manager or as one of the heirs of the original mortgagee was not sufficient.” The period of sixty years of the present mortgage of 1839 expired in 1899 when the Indian Limitation Act XV of 1877 was in force. In that Act the words of Article 148 of the Act of 1871, namely, “unless where an acknowledgment of the title of the mortgagor or of his right of redemption has, before the expiration of the prescribed period, been made in writing, signed by the mortgagee or some person claiming under him, and in such case, the date of the acknowledgment” have been removed from the corresponding Article 148 of the Act of 1877 and have been embodied in section 19 of act xv of 1877 which requires an acknowledgment in writing signed by a party against whom such right is claimed or by some person through whom he derives title or liability—words retained in the present Act of 1908. Nevertheless the words “some person through whom he derives title” must be taken to mean derives the whole of the title and not merely a portion.

If so, in the present case, the plaintiff cannot succeed unless there has been a severance of the mortgage of 1839 into two, one a mortgage of the sub-mortgaged property and another a mortgage of the rest. The trial Court held (print p. 16, line 40):—

“If parties by their own conduct chose to divide their interest in the mortgaged property, if they physically divide and treat them as such and deal with such divided interests for purposes of alienation and other dispositions, all I say is that the person who passes the acknowledgment is tied down to the extent of his own interest.”

The District Court held (print p. 2, line 62):—

“In the present case, though the partition of the mortgaged property between the heirs of the mortgagee can be inferred from the document, Exhibit 17, passed by Bechar Ishwar and attested by Bhukhan Girdhar, there is no evidence to prove that this arrangement was agreed to or acquiesced in by the mortgagor or his heirs.”

Macleod, C.J observes (p. 547):—

“It is true that the heirs of the original mortgagee split up the mortgage. But they cannot take advantage of that fact to defeat the rights of the mortgagor to redeem. In my opinion though the plaintiff, owing to the bar of limitation, could not redeem half the property from one branch, he was entitled still to claim to redeem on payment of what was due on the mortgage the remaining half in the possession of the first defendant, if his suit was within lime. It is to the advantage of the first defendant, that lie is entitled to an account of the whole mortgage before he can be directed to hand over possession to the mortgagor.”

The question, therefore, is whether the original mortgage was split up, and if so, when? If the consent of the mortgagor is necessary to split up a mortgage, then there are only four points of time when it could possibly be split up.

The first is the death of the original mortgagee when his grandsons divided possession of the mortgaged property. It is not alleged that the mortgagor had knowledge or that his consent was obtained or even that the mortgage debt was split up when possession of the property was divided between the two grandsons and heirs of the mortgagee. Mortgages with possession in India are common. I know of no case where it was held that separate possession by heirs of the mortgagees of separate portion of the property can in law effect a severance of the mortgage without the consent of the mortgagor.

The second point of time is the sub-mortgage of 1878 to the appellant's father. Here again the mortgagor is not a party and is not alleged to have known or consented. For the same reason I am of opinion that there was no severance at this stage.

The third point of time is 1914 when the plaintiff-respondent purchased the equity of redemption from the heirs of the original mortgagor. He has, however, purchased the entire equity of redemption. There is nothing to show that the heirs of the mortgagor were even aware of the separate enjoyment of the lands, much less, that they consented to any severance, and unless it is said that the plaintiff-respondent consented because his father had taken the sub-mortgage of a moiety and he thereafter purchased the equity of redemption of the whole, which is again a proposition for which I find no support in law, the mortgage cannot be said to be split up by reason of the plaintiff's purchase of the entire equity of redemption in 1914.

The fourth and last point of time is the appellant's suit of 1921. That cause of action presumably accrued prior to this suit. This point and the date need not therefore, be pursued further.

To sum up, therefore, the question of severance or non-severance: severance implies and means that instead of one property and one burden and one contract, there are several portions and burdens and the replacing of the former contract by one or more new contracts. The last element implies either the consent of both the parties or the action of the Court. In the present case, there is not, in my opinion, the consent of both the parties. As regards the action of the Court it is observed by Mookerjee, J. in Debendra Nath Sen v. Mirza Abdul Samed Seraji (p. 175):—

“The principle upon which these decisions are founded is that the mortgage security is entire and indivisible, and unless there are exceptional circumstances, the mortgagee cannot be compelled to break up the security. The general rule unquestionably is that a mortgagee cannot be required at the instance of a purchaser of part of the premises, to apportion his mortgage debt among the several parts into which the property has been divided, and to look to each only for its proportionate share, unless circumstances have happened, the effect of which, in fact or in law, is to create a severance of the security. As illustrations of exceptions to the general rule, it may be mentioned that an apportionment will be directed where it is necessary for the benefit of one who has taken a part of the property under necessity and for the protection of his own interest, or where the mortgagee himself has become the owner of a part of the equity of redemption, or where by his own conduct there has been a break up of the entire security.”

And at p. 176:—

“But these cases only strengthen the general rule that the mortgagee cannot be compelled at the instance of every holder of a payment of the equity of redemption to apportion his mortgage debt, a rule which has been regarded as based upon sound equitable principles in a series of cases in the American Courts …. The test to be applied in each case is, whether there has been a severance of the security at the instance or with the consent of the mortgagee, and an apportionment will not be enforced upon the mortgagee unless special equitable considerations are established.”

The other view in this case, namely, that there has been a severance implies, as a proposition of law, that the indivisibility of the mortgage is not a principle of the law of contract binding on both the parties to it but is a right, which, because it is usually in the interests of the mortgagee, the mortgagor can in any particular case compel the mortgagee to relinquish, if it suits the mortgagor. That is in fact what I understand by the observation of Macleod, C.J that “one of several mortgagees cannot restrict the rights of the mortgagor to redeem unless he can show that he has been in some way prejudiced.” If so, I must, with all respect, dissent.

In the present case the fact that there was no severance of the mortgage is to my mind clear from the fact that there has been no severance of the burden. It is on this account that the trial Court and Macleod, C.J both found that an account could only be taken on the footing of the entire mortgage amount. In other words, by this severance the burden of the entire mortgage amount was thrown on the appellant's moiety of the property and nothing more left on the other moiety. There is no evidence whatever of any such arrangement.

I am, therefore, of opinion that there was no severance of the mortgage and that the recital in the sub-mortgage by the appellant's ancestor alone cannot save limitation as it is made by one out of several heirs of the mortgagee and does not satisfy the conditions of section 19 of act xv of 1877. This view is not, in my opinion, opposed to the view of their Lordships of the Privy Council in Majmudar Hiralal Ichhalal v. Desai Narsilal Chaturbhujdas in appeal from this Court in Hiralal v. Narsilal. For, in that case it appears that some of the receipts were signed jointly and others separately and the mortgage was split up into two and each sharer represented his own share. As I understand that decision, neither their Lordships of the Privy Council nor this Court differed from the view previously taken in Bhogilal v. Amritlal.

I would, therefore, allow the appeal, set aside the decree of this Court in Second Appeal No. 895 of 1924 and of the trial Court, and restore the decree of the District Court dismissing the suit of the plaintiff-respondent, Jadhav, with costs throughout against the plaintiff-respondent.

Patkar, J.:— In this case the plaintiff Jadhav Gopal brought a suit for redemption against Samal Bechar, defendant No. 1, and four others. The property in suit comprises seven acres and nine gunthas originally mortgaged by one Jesang Umed to Vithal Ranchhod, the predecessor-in-title of the defendants, by a mortgage-deed Exhibit 19, dated June 9, 1839. There was a partition in the family of the mortgagee, and the mortgaged property was divided into two shares; three acres and twenty gunthas fell to the share of Bechar, the father of defendant No. 1, and the remaining portion fell to the share of Bhukhan Girdhar, the father of defendant No. 2 and grandfather of defendants Nos. 3 and 4. Bechar, the father of defendant No. 1, mortgaged his own properties and the mortgaged property which fell to his share at the partition, namely, three acres and twenty gunthas out of old Survey No. 655, which corresponded with the three acres and eighteen gunthas out of Survey No. 629, to Gopal Khushal, the father of the present plaintiff, on May 3, 1878. It appears that the heirs of the mortgagee Vithal Ranchhod partitioned the mortgaged property and dealt with their portions of the mortgaged property separately. The plaintiff, who claimed to be a sub-mortgagee of three acres and eighteen gunthas of Survey No. 629 belonging to Jesang Umed, purchased the equity of redemption with regard to the whole of the property of seven acres and nine gunthas from the heir of Jesang Umed. The plaintiff thus was a sub-mortgagee of about a moiety of the seven acres and nine gunthas of Survey No. 629, and acquired the equity of redemption in the whole of the property comprised in the original mortgage to Vithal Ranchhod.

The plaintiff brought suit No. 221 of 1921 to redeem the whole mortgage with regard to the seven acres and nine gunthas from Samal Bechar, defendant No. 1, who represented one branch of the family of Vithal Ranchhod, and defendants Nos. 2 to 4 who belonged to the other branch of the mortgagee Vithal's family. Samal Bechar, defendant No. 1, in suit No. 221 of 1921, brought suit No. 334 of 1920 against the plaintiff Jadhav Gopal to redeem the sub-mortgage effected by Bechar on May 3, 1878, in favour of plaintiff's father Gopal Khushal. In suit No. 334 of 1920, it was held that there was nothing due on account of the sub-mortgage to which the plaintiff Jadhav Gopal was entitled. In suit No. 221 of 1921, it was held that the suit for redemption with regard to the mortgaged property that fell to the branch of Bhukhan Girdhar was time-barred, but with regard to the three acres and eighteen gunthas which fell to the share of Bechar Ishwar, the father of defendant No. 1, the suit was held to be within time on account of the acknowledgment made by Bechar in his sub-mortgage in favour of the plaintiff's father Gopal Khushal on May 3, 1878. The Subordinate Judge took an account of the whole mortgage in favour of Vithal Ranchhod and found that the mortgage was satisfied and that nothing was due, but that the claim for redemption with regard to the property which fell to the branch of Bhukhan Girdhar was time-barred. The plaintiff's suit was dismissed in respect of the share which fell to the share of Bhukhan Girdhar, the ancestor of defendants Nos. 2 to 4, but the lower Court held that the suit was within time as against defendant No. 1 by virtue of the acknowledgment made by his father in the sub-mortgage dated May 3, 1878. On appeal the learned District Judge held that Exhibit 19, the original mortgage, was a single mortgage of the whole land for a single loan of Rs. 315 by Jesang to Vithal Ranchhod and held that the integrity of the mortgage was not legally split ??? on the ground that the severance of interest was not effected by the mortgagees with the consent of the mortgagor: and relying on the cases of Richardson v. Younge. Bhogilal v. Amritlal, and Dharma v. Balmakund, held that the acknowledgment by Bechar, one of the heirs of the original mortgagee, was not sufficient to keep alive the right of redemption either as against the whole of the mortgaged properly or against the portion which fell to the share of the father of defendant No. 1.

On second appeal by the plaintiff, it was held that the case of Bhogilal v. Amritlal was under the old Indian Limitation Act IX of 1871, and did not apply to the facts of the present case. The second appeal was disposed of by the Chief Justice Sir Norman Macleod as a single Judge. Defendant No. 1 filed this appeal under the Letters Patent against the decision in Second Appeal No. 895 of 1924.

It is contended on behalf of the appellant-defendant No. 1 that the mortgage in favour of Vithal was a single indivisible mortgage and though the property was divided among the heirs of the mortgagee Vithal, there was no splitting of the mortgage security as the mortgagors did not consent to the division and under the ruling in Bhogilal v. Amritlal an acknowledgment by one of the heirs of the original mortgagee was not sufficient to keep alive the right of redemption with regard to the whole mortgage. In Bhogilal v. Amritlal Jardine, J. relied on the case of Richardson v. Younge, and on the wording of Act IX of 1871, Article 148, and held that the acknowledgment by Jagjivandas, whether as manager of the firm or as one of the heirs of the original mortgagee, was not sufficient under Article 148 of the Indian Limitation Act IX of 1871. Telang, J. did not agree with Jardine, J., but concurred in the judgment as the same view was taken by two Judges of the Punjab Court in Mussummat Mah Bibi v. Motan Mal. and as the Act of 1871 was no longer in force. The case in Richardson v. Younge referred to an acknowledgment by one of two trustees who were mortgagees and had no several and apportionable interest in the mortgage. Sir G. Mellish, L.J with reference to the mortgagee who made the acknowledgment, said (p. 481):—

“He was simply joint tenant with his co-trustee of the land, and jointly entitled with him to the mortgage-money. Had the mortgagees not been trustees, the case would have stood very differently, for they must almost of necessity have been entitled to some distinct interests in the mortgage-money.”

Sir W.M James L.J remarked (p. 482):—

“Our decision is confined to the case of mortgagees who are trustees, and are shown to be such on the face of the deed.”

The case of Bhogilal v. Amritlal was decided under the old Indian Limitation Act IX of 1871 which did not recognize an acknowledgment signed by an agent of the mortgagee. Under the subsequent Indian Limitation Acts, XV of 1877 and IX of 1908, the acknowledgment by Jagjivandas as manager of the firm and agent of the persons entitled to the mortgage-money would have been good.

The case of Bhogilal v. Amritlal was followed by the Allahabad High Court in Dharma v. Balmakund, where it was held that an acknowledgment of the title of the mortgagor made by one only of the two mortgagees would not avail to save the mortgagor's right of redemption being barred by limitation where the mortgage was a joint mortgage and not capable of being redeemed piecemeal. The case of Dharma v. Balmakund was decided by a single Judge but the decision was followed in Jwala Prasad v. Achchey Lal. The principle of these cases would apply where the mortgage is a joint mortgage and incapable of being redeemed piecemeal, and under clause (2) of section 21 of the Indian Limitation Act of 1908, one of several joint mortgagees cannot be bound by an acknowledgment made by, or by the agent of, another co-mortgagee. In the present case the mortgage-debt was split up by the mortgagee on account of a partition between the heirs of the original mortgagee, and three acres and eighteen gunthas were allotted to the share of Bechar, the father of defendant No. 1, and the rest of the property was allotted to Bhukhan Girdhar, the ancestor of defendants Nos. 2 to 4. So far as the mortgagee is concerned, there was an effective division not only of the mortgage-debt but also of the mortgaged lands. Bechar, the father of defendant No. 1, effected a sub-mortgage of the property which fell to his share in favour of the plaintiff's father, Gopal Khushal on May 3, 1878. There was thus not only an effective partition of the mortgage-debt and of the mortgaged property, but each of the co-sharers dealt with the property subsequent to the partition, and the sub-mortgage was passed in favour of the father of the plaintiff who afterwards acquired the equity of redemption in the whole property, viz., seven acres and nine gunthas of Survey No. 629.

The question, therefore, in this case is whether the mortgagee had effected a severance of the mortgage interest. The rule with regard to the indivisibility of the mortgage is intended to safeguard the interests of the mortgagee in order to secure him from being sued by different persons at different times. It is urged that if a severance of the mortgage interest had been effected with the mortgagor's consent, then under section 67, clause (d), there would be a legal and effective severance of the mortgagee's interest in the mortgage-debt, and the co-sharer interested in the mortgage would be entitled to bring a suit to enforce his portion of the mortgage. It is further urged that under section 60 of the Transfer of Property Act, a mortgagor would be entitled to redeem a share only of the mortgaged property by payment on the proportionate part where the mortgagee or if there are more mortgagees than one, all such mortgagees have acquired in whole or in part the share of the mortgagor.

In the case of Hiralal v. Narsilal the mortgaged property had been split up into two, and each sharer represented his own share and made an acknowledgment in respect of it, and it was held that the two acknowledgments taken together saved the right of redemption from being barred. The acknowledgments were not signed at one time by all the mortgagees of that time or by each one in respect of the whole mortgaged estate. There were separate acknowledgments each relating to a portion of the whole property and each signed by a person interested in that portion, and it was held, distinguishing the case of Bhogilal v. Amritlal that the two acknowledgments were sufficient to keep the right of redemption in time. The case went up to the Privy Council and their Lordships of the Privy Council in Hiralal Ichhalal v. Narsilal Chaturbhujdas upheld the view taken in the case of Hiralal v. Narsilal. In Narayan v. Ganpat it was held that the general rule appears to be that the mortgagee has a right to insist that his security shall not be split up but that there can be no objection to rateably distribute the mortgage-debt where the mortgagee has himself split up the security. Ghose in the Law of Mortgage, Vol. II, p. 753, observes:—

“Although the mortgage-security is entire and indivisible, and the general rule is that a mortgagee cannot be required at the instance of a purchaser of a part of the mortgaged premises to apportion his mortgage-debt, an apportionment will be directed in exceptional cases, for instance, where it is necessary for the benefit of one who has taken a part of the property under necessity or where by the conduct of the mortgagee there has been a break-up of the entire security.”

I think that in this case the mortgage was split up by partition in the family of the mortgagee and subsequent dealings by the different branches. The father of defendant No. 1 effected a sub-mortgage with possession in favour of the plaintiff's father who subsequently acquired the equity of redemption in the whole of the property. Bhukhan Girdhar interested in the other moiety of the mortgage-debt attested the sub-mortgage in favour of the plaintiff's father. There was thus a splitting of the mortgage by the mortgagee, and the plaintiff, who is in possession of the plot sub-mortgaged to his father and who has also stepped into the shoes of the mortgagor, has acquiesced in that division and is willing to abide by it. In these circumstances, I think there is a legal and effective splitting of the mortgage-security at least from the date of the sub-mortgage, and the mortgage-debt could well be apportioned on the different parts of the mortgaged lands. The case of Bhogilal v. Amritlal was a case of a joint mortgage when there was no partition in the mortgagee's family and there was no splitting up of the mortgage security. The rule as to the indivisibility of the mortgage is intended for the benefit of the mortgagee and the benefit of that rule can be waived by him.

In Fisher on Mortgages, 6th Edition, para. 1402, page 719, it is remarked:—

“But where there shall be more than one mortgagee, or more than one person claiming the estate or interest of the mortgagee or mortgagees, such acknowledgment, signed by one or more of such mortgagees or persons, shall be effectual only as against the person or persons signing as aforesaid, and those claiming any part of the mortgage money or land or rent, by, from or under him or them, and persons entitled to any estate or interest to take effect after or in defeasance of his or their estate or interest; and shall not operate to give the mortgagor or mortgagors a right to redeem, as against the persons entitled to any other undivided or divided part of the money, land or rent.”

In the case of Richardson v. Younge Sir G. Mellish L.J, while discussing the effect of an acknowledgment as to a share, refers to section 28 of 3 & 4 Will, ??? which enacts as follows (p. 480):—

“Where there shall be more than one mortgagee or more than one person claiming the estate or interest of the mortgagee or mortgagees, such acknowledgment, signed by one or more of such mortgagees or persons, shall be effectual only as against the party or parties signing as aforesaid, and the person or persons claiming any part of the mortgage-money or land or rent, by, from or under him or them”;

and says that these words appear only to apply to the case of a person having a several interest and not to the case of joint tenants.

I think, therefore, that in the circumstances of this case there was a splitting and severance of the mortgagee's interest. Defendant No. 1's father dealt with the mortgaged property separately and the plaintiff, as interested in the equity of redemption, has acquiesced in such splitting. Defendant No. 1's father sub-mortgaged his share to the plaintiff's father, and defendant No. 1 filed suit No. 334 of 1920 to redeem the sub-mortgage against the present plaintiff. Plaintiff as representing the mortgagor's interest and as sub-mortgagee has recognised the splitting of the original mortgage. The plaintiff, therefore, could have brought a separate suit to redeem only a portion of the mortgage in which defendant No. 1 was interested, and the interest of defendant No. 1 being divisible, and in fact divided even according to the rulings in Dharma v. Balmakund and Jwala Prasad v. Achchey Lal, the acknowledgment of Bechar would save limitation.

But in the present case, however, the plaintiff sues not for a partial redemption but sues to redeem the whole of the mortgage passed in favour of Vithal. It is held that the suit is barred so far as the share of Bhukhan is concerned, and I do not see why the plaintiff's suit with regard to the share which fell to Bechar should not be held to be in time by virtue of the acknowledgment made by Bechar. The acknowledgment of Bechar would fall within the wording of section 19 of the Indian Limitation Act of 1877 and of 1908. In Venkatvarahacharya v. Kotrapa it was held that a mortgagor cannot be compelled to redeem the whole of the mortgaged property. He is bound to pay the whole of the mortgage-debt before he can redeem any portion of the mortgaged property; but subject to this condition there is nothing to prevent his relinquishment of the right to redeem one portion of the property while suing to redeem other portions.

It is found in this case that the mortgage-debt under the mortgage to Vithal is paid off by the usufruct of the land and nothing remains due. The plaintiff was willing to pay the whole of the mortgage amount if anything was found due; and if the plaintiff's claim with regard to the 3 acres and 18 gunthas is within time on account of the acknowledgment by defendant No. 1's father Bechar, there is no reason, in my opinion, why he should not be allowed to redeem that portion in this suit.

I would, therefore, dismiss the Letters Patent appeal with costs.

Madgavkar, J.:— Following the decisions in Bhaidas Shivdas v. Bai Gulab and Pandu v. Jamnadas, my opinion as the senior Judge prevails under clause 36 of the Letters Patent.

Per Curiam: The Court allows the appeal, sets aside the decree of this Court in Second Appeal No. 895 of 1924 and of the trial Court, and restores the decree of the District Court dismissing the suit of the plaintiff-respondent, Jadhav, with costs throughout against the plaintiff-respondent.

Against this decision the plaintiff preferred appeal under the Letters Patent.

H.V Divatia for the appellant:—The question arising in this appeal is whether an acknowledgment made by one of the heirs of the mortgagee who have divided the mortgaged property among themselves without the consent of the mortgagor is binding on him or his heir so far as regards the property in his possession is concerned, though it may not be binding on the coheirs of the mortgagee. In other words, can the mortgagor claim to redeem a portion of the mortgaged property from such a person on paying the whole amount of the mortgage money within the period of limitation counted from the date of the acknowledgment. The provisions of the Indian Limitation Act, relevant to the point, are sections 19 and 21(2). Tracing back the history of sections 19 and 21(2), they first appeared in the Indian Limitation Act (XIV of 1859), as section IV. The operation of this section was confined to “debt or legacy,” and in the case of an acknowledgment by one of the co-debtors or co-legatees, not even the acknowledging debtor or legatee was liable. This section figured as section 20 in the Indian Limitation Act (IX of 1871). The first part of section iv appeared as section 20(a) with changed phraseology, though its operation was still confined to “debt or legacy”; and the latter part figured as explanation 2, which ran: “Nothing in this section renders one of several partners or executors chargeable by reason of a written promise or acknowledgment signed by another of them.” The effect of this explanation is that if one of several partners or executors signed an acknowledgment, he rendered himself liable, though the non-signing partners or executors were exempt from liability. Then came the Indian Limitation Act (XV of 1877), in which section 20(a) appeared as an elaborate section 19; and the scope of the section was still further widened by extending it to “an acknowledgment of liability in respect of … property or right”. The explanation 2 to section 20 re-appeared as section 21, which ran: “Nothing in sections 19 and 20 renders one of several joint contractors, partners, executors or mortgagees chargeable by reason only of a written acknowledgment signed, or of a payment made by, or by the agent of, any other or others of them.” This section is not confined to “debt or legacy,” and is extended to “mortgagees” for the first time. These sections appear in substantially the same form as sections 19 and 21(2) in the Indian Limitation Act (IX of 1908). In England, the Real Property Limitation Act was re-enacted on August 7, 1874, section 7 of which provided: “Where there shall be more than one mortgagee … such acknowledgment, signed by one or more of such mortgagees … shall be effectual only as against the party or parties signing as aforesaid, … and shall not operate to give to the mortgagor or mortgagors a right to redeem the mortgage as against the person or persons entitled to any other undivided or divided part of the money or land or rent; …” This probably was the precursor of section 21 in the Indian Limitation Act of 1877.

Coming to the decided cases, all the High Courts are unanimous on the point that an acknowledgment by one of several joint promisors is binding on him. The only Bombay case on the point is Devchand v. Jamshedji, which was a case of a khata. The pertinent remarks are at page 357, though they seem to be obiter: “If one of two joint contractors has done anything which starts a new period of limitation, then that new period starts only as against him, not as against his joint contractor.” The same principle was adopted by the Madras High Court in the full bench case of Narayana Ayyar v. Venkataramana Ayyar, which was a case of a co-mortgagor. A like principle was applied to the case of a partner in Valasubramania Pillai v. S.V.R.R.M Ramanathan Chettiar. The Allahabad High Court has taken the same view in Ahsan-ul-lah v. Dakkhini Din, which was a case of a co-judgment-debtor, and in Sheonandan Singh v. Achhaibar Singh the principle was applied to the case of a co-mortgagee, an analogous case to the present case. In Gaya Prasad v. Babu Ram the same High Court took the same view in the case of co-contractors. In Chandra Kumar Dhar v. Ramdin Poddar the Calcutta High Court invoked the principle in the case of co-judgment-debtors.

The cases cited against me are all distinguishable. In Bhogilal v. Amritlal there was a joint family; there was no partition; and there was no severance of the mortgage security. The case was decided under the Indian Limitation Act of 1871, which contained no provision similar to section 21(2) in the present Act. The Court relied on the English case of Richardson v. Younge, which was wholly different and which referred to mortgagees-trustees. The case of Dharma v. Balmakund is no guide. The acknowledgment in question there was dated 1852. There was no partition in the family of the mortgagees. The judgment refers to the Indian Limitation Act of 1859. This case was followed in the later case of Jwala Prasad v. Achchey Lal, where also there was no partition in the family of the mortgagees.

The chief argument on the other side is that the mortgage being one and indivisible, there cannot be piecemeal redemption. The argument turns on section 60, last paragraph, and section 61(d) of the Transfer of Property Act. The former section applies only to a co-mortgagor, and has no bearing here. The latter also does not apply. It applies to a co-mortgagee trying to foreclose the mortgage security by a suit against the mortgagor as regards a corresponding part of the mortgaged property. This one is not a suit of that kind. It is a suit by a mortgagor who is the owner of the whole of the equity of redemption to redeem the whole of the mortgaged property or at least a portion of it, on payment of the full amount of the mortgage money. The question of the consent of the mortgagor is entirely irrelevant on the facts of this case.

In Venkatvarahacharya v. Kotrapa our High Court has held that a mortgagor cannot be compelled to redeem the whole of the mortgaged property; he can relinquish a portion of the property, provided he pays the whole of the mortgage debt. See also Narayan v. Ganpat.

G.S Rao, for the respondent:— The sole question for decision is whether the acknowledgment made by one of the heirs of the mortgagee is a good acknowledgment so as to save the bar of limitation. At the time when the mortgage was made it was single and capable of being redeemed as a whole and not piecemeal. When the mortgagee died his grandsons divided the mortgaged property into two moieties, and each took possession of his moiety. No consent of the mortgagor was taken to the partition. His rights remained unaffected by the transaction. To affect the mortgagor, both the parties must consent to sever or split up the mortgage security. Is there anything in the case to show that the mortgage security was divided? Neither at the time when the partition was made, nor at the time when the sub-mortgage was effected, nor at the time when the plaintiff's father purchased the equity of redemption, was there any consent or acquiescence on the part of the mortgagor's heirs. There cannot be a severance of the mortgage security, merely because the mortgaged property is divided into two portions to suit the mutual convenience of the heirs of the mortgagee. To allow the mortgagor to redeem a portion of the mortgaged property would be to destroy the integrity of the mortgage transaction.

Reading section 60, last paragraph, and section 67(d) of the Transfer of Property Act together it is clear that the legislature intended the mortgage transaction to remain one and indivisible.

If the acknowledgment is not valid as regards the whole property it is not valid as regards any portion. The acknowledgment to be valid must refer to the whole of the mortgage security. Here it refers only to a portion of it. There is no division of the burden of the security. In Purshottam v. Isub Mahamad it was held that a mortgagor was not at liberty to bring separate suits for redemption of a single mortgage debt where the interest of the mortgagee had been divided between different co-sharers.

The present suit has been brought under the provisions of the Dekkhan Agriculturists Relief Act for account, in which the account may turn against the mortgagee. Is it equitable to place the burden of the whole mortgage on the head of one of the mortgagees?

Section 21(2) of the Indian Limitation Act refers to a joint mortgage and not a single mortgage. It refers to a case where the mortgage security is split up. Where the mortgage is joint, no action on the part of one mortgagee can affect himself or the other mortgagee.

The case of Bhogilal v. Amritlal was followed in Jwala Prasad v. Achchey Lal, in which the suit was brought in 1910. The case of Sheonandan Singh v. Achhaibar Singh is against my contention; but the remaining cases, relied on by the other side, do not touch the present point at all.

Divatia, in reply:—Neither section 60, last paragraph, nor section 67(d) of the Transfer of Property Act applies to the present case. Here is a person interested in the whole of the equity of redemption suing to redeem a divided portion of the mortgaged property on payment of the whole of the mortgage debt. There is not a single provision in the Act which prohibits redemption on these facts. In the present case the heirs of the mortgagee divided the mortgaged property. It is no fraud on the part of the mortgagor to redeem from one mortgagee who acknowledges. The utmost the mortgagee can demand is payment of the whole of the mortgage amount.

In Purshottam v. Isub Mahamad the facts were entirely different. On the facts there, only one suit could be brought. In Jwala Prasad v. Achchey Lal, the mortgage was passed in 1838, the acknowledgment was made in 1850, and there was no severance of the mortgage security.

Marten, C.J:—The actual question we have to decide in Suit No. 221 of 1921 is whether the plaintiff Jadhav Gopal is entitled to redeem 3 acres and 20 gunthas or thereabouts being part of the land comprised in the mortgage of June 9, 1839, Exhibit 19, as against the defendant No. 1, Samal Bechar.

The litigation has had a most unfortunate history. This is the fifth Court to hear the dispute, and so far each Court has reversed the decision of its predecessor. The original mortgage comprised in addition to the 3 acres and 20 gunthas further land making in all 7 acres and 9 gunthas. But it is clearly found by the learned District Judge in appeal that there was in effect a partition over 50 years ago between the two branches of the family of the original mortgagee Vithal Ranchhod. The one branch represented now by defendant No. 1, Samal Bechar, took these 3 acres and 20 gunthas. The other branch represented now by defendants Nos. 2, 3 and 4 took the remaining property.

The learned Judge says:—

“In the present case, though the partition of the mortgaged property between the heirs of the mortgagee can be inferred from the document, Exhibit 17, passed by Bechar Ishwar and attested by Bhukhan Girdhar, there is no evidence to prove that this arrangement was agreed to or acquiesced in by the mortgagor or his heirs.”

That brings me to the real point in dispute. Clearly, on the dates I have given, the redemption of the mortgage would prima facie be barred by lapse of time. But at any rate as against defendant No. 1 the plaintiff relies for an acknowledgment on the document of May 3, 1878, Exhibit 17, passed by the father of defendant No. 1 in favour of the father of the plaintiff. That document was a sub-mortgage of these very 3 acres and 20 gunthas; and, moreover, the learned District Judge has found that it was attested by Bhukhan Girdhar, the then representative of the other branch of the mortgagee's family.

It is, however, contended on behalf of defendant No. 1 that this acknowledgment at most was made by one of several mortgagees, and that therefore it is not binding on any of them. As this argument found favour with the learned District Judge, and also with Mr. Justice Madgavkar in this Court, it is an argument which demands the careful consideration which we have given to it, assisted as we have been by the clear and able arguments by Mr. Divatia for the plaintiff and by Diwan Bahadur Rao for the defendant.

The point is governed by the Indian Limitation Act, and having regard to the dates it would appear to be the Indian Limitation Act of 1877, though so far as regards the sections we are concerned with, they are substantially the same as those in the Act of 1908. Turning then first to section 4 of the Act of 1877, it provides that every suit instituted after the period of limitation prescribed therefor by the second schedule shall be dismissed. Next turning to Article 148 we find that in a suit against a mortgagee to redeem or to recover possession of immoveable property mortgaged, the period of limitation is 60 years, and time begins to run when the right to redeem or to recover possession accrues.

I should here explain that before us the plaintiff put his case in the alternative that for the present purposes we must treat the suit as one to redeem only the 3 acres and 20 gunthas. In this connection it should be borne in mind that though the suit was originally one brought for accounts under the Dekkhan Agriculturists' Relief Act, yet the learned trial Judge by his order of September 26, 1922, expressly permitted it to be treated as a suit for redemption of at any rate the 3 acres and 20 gunthas, and passed a decree on that basis. So it seems to me that we should decide this case on this basis that though the suit was primarily a suit to redeem the whole of the mortgaged property and failed on that basis, yet alternatively there was a claim to redeem a portion of the mortgaged property, viz., 3 acres and 20 gunthas, which succeeded. Accordingly, I would consider the case as it comes before us as one merely for redemption of the 3 acres and 20 gunthas. That being so, as I read the Act, that would be the property sought to be redeemed under Article 148 in respect of which the period of 60 years runs.

Next as to the alleged acknowledgment I turn to section 19, which runs:—

“If, before the expiration of the period prescribed for a suit or application in respect of any property or right, an acknowledgment of liability in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed, or by some person through whom he derives title or liability, a new period of limitation, according to the nature of the original liability, shall be computed from the time when the acknowledgment was so signed.”

In Explanation 2, “signed” means signed either personally or by an agent duly authorized in this behalf.

Treating, therefore, the “property” as being the 3 acres and 20 gunthas, we have to see whether there was an acknowledgment in respect of that property signed either by defendant No. 1 or by some person through whom he derives title. Now, clearly the sub-mortgage of May 3, 1878, was “an acknowledgment of liability,” viz., an acknowledgment that the property at that date was still held in mortgage by Bechar Ishwar as mortgagee. Further, that acknowledgment was signed by defendant No. 1's father, Bechar Ishwar, through whom defendant No. 1 derives title. It is, however, contended that is insufficient; that the acknowledgment should have been in respect not merely of these 3 acres and 20 gunthas but with respect to the entirety of the property originally mortgaged; and that accordingly the acknowledgment is neither valid as regards the whole of the property nor as regards any portion of it.

With all respect to those who have taken a contrary view, it seems to me that view is not the correct one to take of the Statute which governs the case. We have been shown a marked alteration in the language which was used in the Act of 1877, as compared with the Acts of 1859 and 1871, under the former of which the decision to the contrary effect in Bhogilal v. Amritlal was arrived at. I respectfully agree with the view of Sir Norman Macleod that not only are we concerned with an entirely different state of facts from those existing in Bhogilal v. Amritlal but that we are also concerned with a different Indian Limitation Act, viz., either the Act of 1877 or the corresponding words in the Act of 1908.

Section 21 of the Act was also referred to. That says that:—

“Nothing in sections 19 and 20 renders one of several joint contractors, partners, executors or mortgagees chargeable by reason only of a written acknowledgment signed, or of a payment made by, or by the agent of, any other or others of them.”

If there had been no partition here between the heirs of the mortgagee inter se, then it may well be that an acknowledgment by one of those heirs would not be binding upon the others. Whether the joint mortgagee who did in fact sign the acknowledgment would himself be liable or liable qua his share, is not, I think, a point that arises for express decision in the present case. We have a case, as I have already emphasized, where there has been a partition existing for over 50 years between the branches of the mortgagee. On the other hand we have been referred to a decision in Sheonandan Singh v. Achhaibar Singh, which undoubtedly goes to show that in such a case an acknowledgment is binding as against the person giving it. That was the case of an acknowledgment by one of the mortgagees.

So, too, in Narayana Ayyar v. Venkataramana Ayyar, which was the case of co-mortgagors which eventually went before the Full Bench, but which on another part of the case was decided by Sir Arnold White and Mr. Justice Bhashyam Ayyangar, it was held that the effect of section 21 was that a person making an acknowledgment was bound, though it does not affect his co-mortgagors. It was stated at p. 232:—

“In our opinion, therefore, the suit is not barred as against the first defendant. But we are clearly of opinion that the first defendant's acknowledgment cannot affect his co-mortgagor—the third defendant—and save the suit from being barred by limitation as against him.”

There were several other cases, such as Devchand v. Jamshedji, Valasubramania Pillai v. S.V.R.R.M Ramanathan Chettiar, Ahsan-ul-lah v. Dakkhini Din, and Chandra Kumar Dhar v. Ramdin Poddar, cited to show that a similar view had been adopted as regards either coparceners, or co-judgment-debtors, or co-contractors and so on. But the answer to those cases made by Diwan Bahadur Rao is that they do not affect the present case, because they were not cases of a mortgage debt, and that on the other hand a mortgage debt stands on a special basis. It was argued that the entire mortgage transaction was one and indivisible, and that it could never be broken up unless you could find the consent of all parties, viz., of the mortgagors and of the mortgagees to any different arrangement to be arrived at; and that, consequently, as it has been found as a fact in the present case that there never was any consent by the mortgagor or his representatives to the partition in question between the heirs of the mortgagee, that therefore the mortgage transaction and the mortgage debts remained indivisible, and the acknowledgment itself was invalid.

We were referred in this connection to sections 60 and 67 of the Transfer of Property Act. But it will be noted that both those sections relate in effect to attempts to apportion the mortgage debt between different portions of the mortgaged property. Section 60, for instance, as regards the right of the mortgagor to redeem, states at the end 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, ….”

In the present case there is no question of redeeming a portion of the property, viz., 3 acres and 20 gunthas, on payment merely of a proportionate part of the amount of the debt. It has been found, and it is not disputed, that the plaintiff can only redeem on payment of the whole debt. So that section does not apply, even if for the sake of argument it is admitted that the plaintiff is “interested in a share only of the mortgaged property,” viz., qua these 3 acres and 20 gunthas. Similarly, when one turns to section 67(d), that states:—

“Nothing in this section shall be deemed to authorize a person interested in part only of the mortgage-money to institute a suit relating only to a corresponding part of the mortgaged property, unless the mortgagees have, with the consent of the mortgagor, severed their interests under the mortgage.”

That section deals with the right to bring a suit for foreclosure or sale. We have not got that suit here, and therefore I do not think I need further refer to that section.

Then it was said that this Court in Purshottam v. Isub Mahamad has laid down that a mortgagor cannot bring separate suits for redemption of a single mortgage debt, where the interest of the mortgagee has been divided by a gift or an assignment between different co-sharers. In that case the mortgagor was really trying to bring several simultaneous suits for redemption. And it was there pointed out what difficulties would ensue even as a matter of procedure. But that is not the case we have to deal with here. We have only one suit, and all persons who could possibly be interested in these 3 acres and 20 gunthas have been brought before the Court. Defendants Nos. 2, 3 and 4 who are interested in the other branch have not chosen to appear, but the decision of the Court that in fact there has been this partition between these two branches is nevertheless binding on them. In the other case it had not been established that there had been any such partition. Therefore I do not think there is anything in the procedure adopted here or in that other case, which would militate against the success of the plaintiff in the present suit.

What then we really find is that for a great number of years defendant No. 1 and his branch have been in possession of this particular land. Their branch has given this acknowledgment. The other branch have either not disputed the interests of defendant No. 1, or alternatively the decision of the Court is against them on the ground of partition. It seems to me then that within section 19 of the Indian Limitation Act the present redemption suit is “in respect of property,” viz., the “3 acres 20 gunthas,” and that an acknowledgment of liability in respect of such property has been signed by the party against whom the property is claimed or by some person through whom he claimed, viz., Bechar Ishwar, the father of defendant No. 1, and that as Bechar Ishwar was solely entitled to that property as between himself and the original co-mortgagees the requirements of the statute are satisfied and the suit is within time.

That being so, it follows that in my opinion the decisions of Sir Norman Macleod and subsequently of Mr. Justice Patkar confirming that of the learned Subordinate Judge were correct, and that this appeal ought to be allowed, and the decision of Sir Norman restored, and that defendant No. 1 must pay the costs throughout.

Mirza, J.:—The decision in Bhogilal v. Amritlal, on which reliance has been placed on behalf of the respondent, can be distinguished from the present case. That case was decided under the Indian Limitation Act of 1871. The present case is governed by the Indian Limitation Act of 1877 the provisions of which so far as they apply to this case are substantially the same as the corresponding provisions of the present Act of 1908. In the Indian Limitation Act of 1877 a new provision is to be found in section 21, sub-section (2), which has been interpreted as meaning that an acknowledgment by a co-mortgagor or a co-debtor would give under proper conditions a fresh start for limitation against the acknowledger though it would not at the same time give a fresh start against his co-mortgagor or his co-debtor. Reference may be made in this connection to the rulings in Narayana Ayyar v. Venkataramana Ayyar; Ahsan-ul-lah v. Dakkhini Din; and Sheonandan Singh v. Achhaibar Singh. Bhogilal v. Amritlal can also be distinguished from the present case on the ground that case related to certain co-mortgagees who had not split up their interests as was done in the present case. In Bhogilal v. Amritlal, Mr. Justice Jardine followed the ruling in Richardson v. Younge, but that case, as is shown by the judgments of Mellish, L.J and James L.J, turned upon the circumstance that the co-mortgagees were also co-trustees. The judgment in that case expressly states that different considerations might have applied if the mortgagees had not at the same time been trustees, who by the very nature of being trustees had no other interest beyond a joint interest in the property.

The two Allahabad cases on which Diwan Bahadur Rao has relied, viz., Dharma v. Balmakund and Hira Singh v. Musammat Amarti,(7) were cases where there had been no partition and no severance of interest between the joint owners.

The case of Venkatvarahacharya v. Kotrapa(8) is an authority for holding that a mortgagor cannot be compelled to redeem the whole of the mortgaged property. He can be allowed if he pays the whole of the mortgage debt to redeem any portion of the mortgaged property he likes, and there is nothing to prevent his relinquishment of the right to redeem one portion of the property while suing to redeem other portions. It has been held in the present case that the claim of the defendant to redeem the other moiety in the possession of the second branch of the mortgagee's property is barred by limitation. The plaintiff has been allowed to redeem the moiety in respect of which his claim has been kept alive by the acknowledgment, only on terms of paying the whole of the mortgage-debt after taking credit for the rents and profits received from the moiety which is allowed to be redeemed.

The rule with regard to the indivisibility of a mortgage in section 67 of the Transfer of Property Act is a rule for the benefit of the mortgagee. Where a mortgagee splits up the mortgaged property into two portions and remains in possession of one portion only, he can have no just cause for grievance if he is paid the whole mortgage debt before redemption of the portion in his possession is allowed. In Narayan v. Ganpat it was held that although the general rule is that a mortgagee has a right to insist that his security shall not be split up, there would be no objection to splitting up the security and rateably distributing the mortgage-debt, where the mortgagee has himself split up the security.

I agree with the order proposed by my Lord the Chief Justice.

Broomfield, J.:—I agree with the order proposed by my Lord the Chief Justice and with Mr. Justice Mirza and have very little to add.

Both the District Judge who in the first instance dismissed the suit and Mr. Justice Madgavkar who restored the decision of the District Judge have relied strongly upon the doctrine of the indivisibility of the mortgage or the mortgage transaction. Mr. Justice Madgavkar says:—

“The general rule is that a mortgage is one and indivisible and so remains unless and until it is split up by the consent of both the mortgagor and the mortgagee. Neither the property nor the burden can be divided without the consent of both.”

And further on:—

“Severance implies and means that instead of one property and one burden and one contract, there are several portions and burdens and the replacing of the former contract by one or more new contracts. The last element implies either the consent of both the parties or the action of the Court.”

In the present case, as Mr. Justice Madgavkar has pointed out, we cannot take it that there has been a consent of both the parties. Of course there is no question of the action of the Court. But it seems to me that there may be a practical difference between the indivisibility of a mortgage contract, and any theory as to the indivisibility of the mortgaged property. It may very probably be quite correct to say that the consent of both the mortgagor and the mortgagee may be necessary for any splitting up of the mortgage contract. But as a matter of fact the mortgaged property may obviously be split up without the consent of the mortgagor, as has happened in the present case. Where we have, as in the present case, an actual severance of the mortgaged property, and when we find that several portions of it are in the hands of persons between whom there is no community of interests, then it seems to me that different considerations arise from those which govern such cases as Bhogilal v. Amritlal. As far as I can see there is nothing in the doctrine of the indivisibility of a mortgage which would imply that the mortgagor cannot redeem a portion of the mortgaged property in the hands of a person who possesses all the rights of a mortgagee in respect of that portion merely because his claim may be time-barred in respect of the other portion of the mortgaged property.

The doctrine to which so much importance has been attached is apparently only based on sections 60 and 67 of the Transfer of Property Act, and as my Lord the Chief Justice has pointed out, those sections have clearly no application to a case of this kind. It may also be pointed out that the extreme form in which the doctrine was stated by Diwan Bahadur Rao, viz., that if a suit for redemption is not valid in respect of the whole mortgage, or in respect of the whole of the mortgaged property, it cannot be valid in respect of a part, would obviously be contrary to the decision of this High Court in Venkatvarahacharya v. Kotrapa, where it was held that a mortgagor cannot be compelled to redeem the whole of the mortgaged property. He is bound to pay the whole of the mortgage debt before he can redeem any portion of the mortgaged property. But subject to this condition there is nothing to prevent his relinquishment of the right to redeem one portion of the property while suing to redeem other portions.

There is one other case to which perhaps I might usefully refer, and that is the case of Hiralal v. Narsilal. There the facts were that the mortgaged property had been split up into two, and each sharer represented his own share and made acknowledgment in respect of it, and the two acknowledgments put together comprised the whole property. It was held that those were valid acknowledgments within the meaning of section 19 of the Indian Limitation Act, 1877. If the doctrine contended for by Diwan Bahadur Rao had been correct, that decision could hardly have been arrived at. This case in course of time came before the Privy Council, and is reported in I.L.R 37 Bom. 326. The actual point discussed by their Lordships of the Privy Council in their judgment was a different one, but it is quite clear that the decision of the High Court was approved as a whole, and the judgment of the Privy Council is, therefore, by implication at any rate, an approval of the decision of this Court that the acknowledgments in that case, though not relating to the whole property mortgaged, were nevertheless valid acknowledgments.

Appeal allowed.

B.G.R