Mullick, J.:— (After stating the facts, as set out above, proceeded as follows):—
In appeal before us three points have been taken. The first point is that the proprietors of all the estates who own a proprietary interest in the land in suit should have been joined and that the suit cannot proceed in their absence. It appears however that on the 23rd August, 1919, an application was made by the plaintiffs to implead the absent proprietors. The defendants opposed that application and on the 8th September, 1919, the Munsif declined to grant the prayer. In these circumstances it does not appear to me reasonable that the defendants should be allowed to urge the ground of non-joinder. Seeing that this was a suit for redemption the Court would certainly have added the absent proprietors but for the opposition offered by the defendants. They cannot now be allowed to attack the. Court for doing the very thing which they wanted it to do.
The next point is whether the plaintiffs are entitled to redeem the whole mortgage. It is said that the defendants are the cosharers of the plaintiffs in the land in suit and that if the plaintiffs have succeeded to the mortgagor's interest, the defendants too have succeeded to that interest jointly with them to the extent of their share. It is, therefore, contended that the mortgage has been extinguished to the extent of the proprietary interest of the defendants and that the plaintiffs cannot be allowed to redeem the whole mortgage. Now the law on this point is contained in section 60 of the Transfer of Property Act, and it has been recently explained by the Privy Council in Mirza Yad Ali Beg v. Tuka Ram. There is nothing in section 60 to debar the owner of a part of the equity of redemption from offering to redeem the whole mortgage. Indeed some earlier cases, following Ahmad Ali Khan v. Jawahir Singh have laid down that the mortgagor is bound to offer to redeem the whole. The matter is further complicated in cases where the property is joint and indivisible and the transferee of a portion of the equity of redemption cannot point to any defined share as his. The Bombay High Court have held that one of several coparceners may redeem the whole property leaving it to the mortgagee who has purchased a portion of the equity of redemption to have his rights ascertained and defined in a suit for partition [Bhikaji v. Lakshman]. I think, therefore, there can at least be no objection to a suit by a part owner of the equity of redemption for the redemption of the whole mortgage, and it is for the mortgagee to object to such redemption so that the equities might be investigated. No objection was however made by the defendants at any stage of the present case in the Courts below; nor was the objection taken in the memorandum of appeal before Ross, J., or in the memorandum of appeal before us. The ground is now taken for the first time by notice served upon the respondents to-day, notwithstanding the rule of this Court which prescribes that additional grounds to a memorandum of appeal can only be taken with the permission of the Court. The ground involves a mixed question of fact and law, and, in my opinion, it is impossible to investigate it at this late stage. The defendants therefore cannot be allowed to urge that a part of the mortgage security has been extinguished and that the decree for the redemption of the whole is wrong.
The third point is the substantial point which was argued before Ross, J. It was urged before him that the Crown got no title to the property by escheat. Ross, J., found that the property was the brit tenure of Kunj Behari. The Subordinate Judge in the Court of first appeal had found that the property was the rent-free tenure of Kunj Behari Das under the maliks of the village and he apparently considered that such a finding was sufficient to justify an escheat. Ross, J., however, correctly points out that there could be an escheat only of an absolute hereditary mukarrari tenure and that although the tenure here might be hereditary and rent-free there was no evidence that it was permanent. Our attention has been drawn to the glossary of terms used in the Survey and Settlement proceedings in Bihar and Orissa which shows that a brit tenure is a service-tenure and it is urged that this definition is sufficient to allow an inference of permanency to be raised. In my opinion the inference if any is exactly the other way. A service-tenure is not necessarily permanent and until the plaintiffs can show that Kunj Behari held the land in perpetuity they cannot succeed. In our opinion the judgment of Ross, J., on this point was right and the landlords were entitled to the reversion of the land upon the death of Kunj Behari Das. The decree therefore for redemption should, in my opinion, be maintained.
A point was taken as to that part of the decree which directed the assessment of mesne profits. It/was contended that the plaintiffs were not entitled to mesne profits from the date of the suit. The plaint, however, contains an allegation that before the suit the plaintiffs had tendered the redemption money; several times to the defendants. That allegation is not denied in the written statements and in the circumstances the plaintiffs are entitled to mesne profits which they assess at Rs. 10 from the date of the suit. The result, therefore, is that the appeal is dismissed with costs.
Dawson Miller, C.J:— I agree.
Appeal dismissed.