Protap Chandra Dhar v. Peary Mohan Dhar

Richardson, J.:— The Appellant before us is the Plaintiff in a suit for the redemption of a mortgage. The property in question originally belonged to five brothers—Ram Dayal, Uma Charan, Pran Krishna, Akhil Chandra and Nishi. In the year 1896, the first four of these brothers executed a mortgage by way of conditional sale in favour of Defendant No. 4. Thereafter, Pran Krishna purchased the share of his three brothers, Earn Dayal, Akhil and Nishi. Having done so, he mortgaged certain properties including some of the properties which were the subject of the prior mortgage to Defendants Nos. 2 and 3. That was in 1899 or 1900. On the 31st October 1900 the Defendant No. 4 brought a suit on his mortgage, and on the 18th June 1901 obtained a final decree for foreclosure. The puisne mortgagees—the Defendants Nos. 2 and 3—were not made parties to this suit. In 1902 the Defendant No. 4 sold his degree to the Defendant No. 1. In the same year the Defendants Nos. 2 and 3 instituted a suit upon their mortgage against the mortgagor Pran Krishna making the Defendant No. 1 also a party Defendant. In execution of the decree which they obtained the mortgagees (Defendants Nos. 2 and 3) purchased the equity of redemption in the property mortgaged to them. On the 28th March 1910 the Plaintiff purchased the rights of the Defendants Nos. 2 and 3. He then brought this suit to redeem the Defendant No. 1, the successor in interest of the original mortgagee (Defendant No. 4). The sole question which arises is whether the Plaintiff is entitled to redeem the whole of the property originally mortgaged to Defendant No. 4 or whether he is only entitled to redeem the four-fifths share which came to be in the possession of Pran Krishna. The Courts below have held that the Plaintiff is not entitled to redeem the whole of the property in opposition to the wishes of the mortgagee.

In this appeal, it is contended for the Plaintiff that is a mistaken view of the law and that according to the cases a partial owner of the equity of redemption is entitled to redeem the whole of the mortgaged property. The learned Pleader has cited the cases of Pearse v. Morris and Huthasanan v. Parameswaram. He has also referred to the statement of the rule in Sir Rash Behary Ghosh's work on the Law of Mortgage in India (4th Ed., Vol. I, p. 249). The learned author says that the general rule is that a person who has any right at all to redeem, has a right to redeem the whole of the mortgaged properties and cannot be compelled to redeem only the part in which he may be interested; and in support of the proposition, authorities, English and Indian, are cited. The learned Pleader for the Defendant-Respondent urges on the other hand that the rule enacted in sec. 60 of the Transfer of Property Act is a rule intended for the benefit of the mortgagee and that a mortgagor interested in a part only of the equity of redemption has no corresponding right. The authorities, however, as they stand, are against him and the question appears to be concluded by the decision of a Division Bench of this Court in the case of Baikunthanath Dey v. Mohes Chunder Dey.

The result is that this appeal should be allowed. The decree of the trial Court should be varied by stating that the Plaintiff is entitled to redeem the whole of the property originally mortgaged to Defendant No. 4, on payment of the amount due on the mortgage to be ascertained in the manner indicated in the judgment of the Munsif. Something was said as to the-rate of interest allowed by the learned District Judge. But this point as to interest was not pressed. The Plaintiff is entitled to his costs throughout as against Defendant No. 1.

Walmsley, J.:— I agree.

S.C.C

Appeal allowed.