Kulwant Sahay, J.:— These two appeals are directed against the same decision of the Subordinate Judge of Gaya. Appeal no. 141 is by the defendant no. 1 and appeal no. 13 is by the plaintiffs, and the question, raised is as regards the respective rights of the parties under sales held in execution of two decrees on two mortgages.

The facts are shortly these:—The defendant no. 1, Jawad Hussain, who appears to be a zamindar having considerable landed properties but who, according to the Subordinate Judge, was always in a chronic state of indebtedness, executed several mortgages in respect of his properties in favour of different persons. We are here concerned chiefly with two mortgages, one dated the 23rd of September, 1907, and the other dated the 29th of July, 1908. By the first mortgage of 1907 Jawad Hussain mortgaged three properties to the plaintiffs, namely, (1) seven annas 11 dams odd share of mauza Mosimpur Bharthu and Ismailpur Bharthu bearing. Tauzi no. 1291. For the sake of convenience I shall call these villages simply mauza Bharthu; (2) sixteen annas of mauza Jamuawan, Tauzi no. 7705, and (3) sixteen annas of mauza Jamuawan, Tauzi no. 7708. The principal amount advanced under this mortgage was Rs. 11,000 and the interest stipulated was Rs. 1-4-0 per cent, per mensem with compound interest at the same rate on yearly rests. By the second mortgage of 1908 Jawad Hussain mortgaged one of these villages, namely, mauza Jamuawan, Tauzi no. 7708, to Durga Prashad, the husband of Musammat Bhawani Kuer defendant no. 3, the principal sum advanced under this mortgage being Rs. 11,500. In 1915 the plaintiffs instituted suit no. 64 of that year to enforce their mortgage of 1907. In this suit the second mortgagee Durga Prashad was not impleaded as a party. A preliminary decree was made in favour of the plaintiffs for a sum of Rs. 33,981-5-3 on the 4th of August, 1915. The final decree for sale was made on the 25th March, 1916, and in execution of this decree one of the mortgaged properties, namely, mauza Bharthu was sold for Rs. 25,000 and was purchased by the plaintiffs decree-holders on the 23rd of November, 1916. The sale was confirmed and the sale certificate was granted to the plaintiffs on the 24th of August, 1917, and possession was delivered to them on the 23rd of December, 1917. For the balance due under the decree execution was again taken out by the plaintiffs in 1921, but previous to this Durga Prashad had instituted a suit in the year 1919 to enforce his mortgage of 1908. In this suit the present plaintiffs were not impleaded as defendants. A preliminary decree was passed in favour of Durga Prashad on the 22nd of August, 1919, and the final decree for sale was made on the 10th of December, 1919. Durga Prashad having died, his widow Bhawani Kuer, defendant no. 3 executed the decree and the mortgaged property mauza Jamuawan, Tauzi no. 7708, was sold on the 21st of July, 1920, and purchased by Bhawani Kuer who obtained delivery of possession through Court on the 27th of January, 1921. Subsequently by a deed of sale dated the 19th of March, 1922, Bhawani Kuer sold the mauza Jamuawan, Tauzi no. 7708, to the defendant no. 1, Musammat Azizunissa for Rs. 18,000.

As I have stated, the plaintiffs took out execution for the balance of their decree in the year 1921 and the two villages Jamuawan, bearing Tauzi nos. 7705 and 7708 were sold on the 8th of February, 1921, and purchased by the present plaintiffs decree-holders. The sale was confirmed on the 9th of December, 1921. The plaintiffs, then made an application for delivery of possession over these two villages and the defendant no. 1 objected to such delivery of possession in so far as mauza Jamuawan, Tauzi no. 7708, was concerned on the basis of the sale in execution of. Durga Prashad's decree. The objection of the defendant no. 1 was allowed on the 30th of May, 1923, and although possession was delivered to the plaintiffs over mauza Jamuawan, Tauzi no. 7705, they failed to obtain possession in so far as mauza Jamuawan, Tauzi no. 7708, was concerned. They thereupon instituted the present suit for a declaration of their title in respect of mauza Jamuawan, Tauzi no. 7708, by virtue of their purchase in execution of the mortgage decree and for possession thereof. They asked for an alternative relief allowing the defendants an opportunity to redeem mauza Jamuawan, Tauzi no. 7708, on payment of such sum as the Court may determine as the proportionate amount payable in respect of the said village within a time to be fixed by the Court and in the event of the sum so fixed not being deposited within the time fixed by the Court possession of the said mauza be delivered to the plaintiffs. It may be noted that in the plaint the plaintiffs had alleged that the purchase of the 19th of March, 1922, was really made by the defendant no. 2, Jawad Hussain, and that the defendant no. 1 was merely a benamidar for the defendant no. 2.

The defence of the defendant no. 1 with which we are concerned in the present appeals was that she was not the benamidar for the defendant no. 2 and that she was entitled to redeem not only mauza Jamuawan, Tauzi no. 7708, on payment of the proportionate amount of the mortgage money but that she was entitled to redeem the entire mortgage in respect of all the three villages: The learned Subordinate Judge has held that it has not been established that the defendant no. 1 was a benamidar for the defendant no. 2. Hehas, however, disallowed the claim of the defendant no. 1 to redeem the entire mortgage and he has held that the defendant no. 1 was entitled to redeem only mauza Jamuawan, Tauzi no. 7708, which was mortgaged in the bond of Durga Prashad and which was sold in execution of the decree upon that mortgage. The learned Subordinate Judge has further found that, in order to redeem, the defendant no. 1 was entitled to pay the amount proportionate to the value of mauza Jamuawan, Tauzi no. 7708, but that the mortgage money should be deemed to be the amount found due on the date of the plaintiffs' decree in their mortgage suit and that upon that amount interest will run at the stipulated rate mentioned in the mortgage bond till the date fixed for payment in the plaintiffs' mortgage decree and that after that date interest shall be calculated at 6 per cent, per annum until 6 months after the date of the decree in the present suit. The appeal of the defendant no. 1 is directed against the portion of the decision of the Subordinate Judge where he held that the defendant no. 1 was entitled to redeem mauza Jamuawan, Tauzi no. 7708, her contention being that she is entitled to redeem all the three villages covered by the mortgage of the plaintiffs. The next contention of the defendant no. 1 is as regards the proportionate amount of the mortgage money chargeable on Jamuawan, Tauzi no. 7708. The appeal of the plaintiffs is directed against the finding of the Subordinate Judge that the defendant no. 1 was not the benamidar of the defendant no. 2 and to the amount payable by the defendant no. 1 for redeeming Jamuawan, Tauzi no. 7708.

It may be stated at the outset that the learned Advocate for the plaintiffs did not press his appeal on the question of benami and it must be accepted for the purpose of the present appeal that the defendant no. 1 was not a benamidar for defendant no. 2. The principal question for decision in the appeal of defendant no. 1 is whether she is entitled to redeem the entire mortgage or only the mortgage in respect of mauza Jamuawan, Tauzi no. 7708.

The general principle of law is that the mortgage contract is indivisible and it is the right equally of the mortgagor and the mortgagee to keep it indivisible. Where, however, there has been a severance of the security and the integrity of the mortgage has been broken, it is the right of the mortgagee as well as of the mortgagor, or the person having the equity of redemption, to insist on an apportionment of the mortgage-debt upon the several mortgaged properties and on partial redemption. The purchaser of the mortgaged properties in execution of a mortgage decree acquires not only the interest of the mortgagee but also the equity of redemption of the mortgagor, and he is entitled to redeem other mortgages on the same property created by the mortgagor. The defendant no. 1 as a purchaser of one of the mortgaged properties has acquired the equity of redemption of Jawad Hussain and can claim a right to redeem the entire mortgage of the plaintiffs inasmuch as she is not bound by the decree obtained by the plaintiffs in the suit on their mortgage as her predecessor in title was not made a party thereto. Upon such redemption by the defendant no. 1 the plaintiffs in their turn as purchasers of the equity of redemption of Jawad Hussain can similarly claim the right to redeem the defendant no. 1. The question in the present case is how are the equities between the parties to be worked out? In my opinion the view taken by the learned Subordinate Judge is correct and the defendant no. 1 can be allowed to redeem only mauza Jamuawan, Tauzi no. 7708. This view was taken by this Court in Musammat Dhanwanti Chaudharain v. Hargobind Prasad and the reasons given by me in that case apply to the facts of the present case.

Reliance has been placed on behalf of the defendant no. 1 upon the decision of the Privy Council in Yadali Beg v. Tukaram. The facts of that case were these:—In 1893 one Laxmansa Balkrishnasa executed a mortgage in favour of Yadali in respect of sixteen fields in five villages authorising the mortgagee to take possession of the mortgaged premises if the mortgage money was not paid by a certain date. It also authorised the mortgagee to sell the mortgaged property for realization of the mortgage money. The mortgagor subsequently in the year 1896 sold one of the fields to the respondent Tukaram. In 1899 the mortgagee Yadali sued on the mortgage to recover the principal amount with interest due under it. In this suit the subsequent purchaser of one of the fields Tukaram was not made a party. The suit was decreed by consent of the mortgagor whereby it was agreed that unless the mortgagor paid a certain sum of money within a year, nine of the fields including the one purchased by Tukaram should be foreclosed and the plaintiff mortgagee should be put in possession thereof. No payment was made and the final decree for foreclosure in respect of the nine fields was passed in favour of Yadali on the 17th of December, 1900, and he was put in possession of the fields including the one purchased by Tukaram in January, 1901. Tukaram then brought his suit which went to the Privy Council claiming to be entitled to redeem all the nine fields. The Subordinate Judge held that he was entitled to redeem only the field purchased by him on payment of the proportionate amount of the mortgage money. On appeal the Judicial Commissioner held that the plaintiff Tukaram was entitled to redeem the entire mortgage, but, as he had confined his suit to the nine fields covered by the consent decree, a decree was made for redemption of those nine fields on payment of the entire mortgage-debt. The Privy Council upheld the decision of the Judicial Commissioner. In doing so Viscount Haldane observed as follows:—

“According to English law the respondents would have been entitled to redeem the mortgage in its entirety subject only to the safeguarding of the equal title to redeem of any other person who had a right of redemption, a point which has not arisen so far in the present case. The respondents, being transferees of part of the security, by English law, if it applied, would on the one hand be entitled to redeem the entire mortgage on the properties generally, and correlatively could not compel the mortgagee to allow them to redeem their part by itself. This would be so as the result of principle unless something had happened which extinguished the mortgage in whole or in part, such as an exercise of a power of sale originally conferred on the mortgagee by his security or such conduct on the part of the transferees as would estop them from asserting what normally would have been their right. Nothing of this kind is alleged in the case before their Lordships.

The Judge in the original Court thought that the decisions of the Courts in India had established that one of several mortgagors cannot redeem more than his share unless the owners of the other shares consent or do not object. Subject to proper safeguarding of the rights to redeem, which these owners may possess, their Lordships are of opinion that this is not so in India any more than in England.”

It will appear from this decision of their Lordships that they were proceeding on the general principle that a mortgage is indivisible unless something had happened which would operate as a severance of the security. In observing that the respondents in the case before their Lordships were entitled to redeem the mortgage in its entirety subject only to the safeguarding of the equal title to redeem of any other person who had a right of redemption, their Lordships clearly recognised, the right of a partial redemption; but the question of partial redemption did not arise in that case and their Lordships clearly state that point had, not arisen in the case. They, however, clearly indicated that the right of other owners of the equity of redemption has to be safeguarded and the question in the case now before us is whether any other person has a right of redemption which must be safeguarded. In my opinion the plaintiffs are such persons and they have got the right of redemption which must be safeguarded. The case of Yadali, therefore, is not an authority for holding that the defendant no. 1 is entitled to redeem the entire mortgage and not only the village purchased by her.

Reliance has also been placed on behalf of the defendant no. 1 upon Rai Promatha Nath Mitter v. Ram Kishan Singh. There also the question arose whether the purchaser of a portion of the mortgaged property was entitled to redeem the entire mortgage. The facts of that case, however, were these:—In 1913 three brothers, Sarat, Hem and Gouri, Prasad had executed a mortgage in respect of 3 annas 2 pies 8 karant share in a certain mahal to the defendant no. 1. Subsequently in 1915 two of the brothers, Sarat and Hem, sold 2 annas out of their 2 annas 1 pie 12 karant share to the plaintiffs and the pro-forma defendants, the plaintiffs' share in the purchase being 5 pies only. In 1919 the mortgagee instituted a suit to enforce his mortgage against the mortgagors and the purchasers were not made parties. An ex parte decree was made and the entire share was sold in execution thereof and purchased by the defendants 2 and 3 to whom possession was subsequently delivered. In July, 1921, the defendants 2 and 3 sold the entire share purchased by them to the defendants 4 and 5. Thereupon the suit, giving rise to the appeal which came up to this Court, was instituted by the plaintiffs who were the purchasers in respect of the 5-pies share for redemption of the entire mortgage and the question raised was whether I they were entitled to redeem the entire mortgage or only their 5-pies share, the contention of the defendants-4 and 5 being that the plaintiffs could redeem only 5-pies share. It was held by this Court that the plaintiffs were entitled to redeem the entire mortgage. There was, however, a direction to the effect that on the deposit of the mortgage money being made by the plaintiffs, a final decree for redemption will be passed in their favour, but possession will not be delivered to the plaintiffs until after the expiry of one week from the date of such decree and that if the defendants 4 and 5, namely, the purchasers in execution of the mortgage decree, consent within that week that their proportion of the total mortgage-money due in respect of their 1-anna odd share be repaid, and also pay up the costs of the suit and appeals decreed against them and their proportion of any other costs which would be a charge under section 95, or consent that the same be paid to plaintiffs out of the total mortgage money, possession of the share of those defendants will not be delivered to plaintiffs. The effect of this direction in the decree of this Court virtually amounts to a partial redemption. It was held that the plaintiffs were entitled to redeem the entire mortgage but that they were not entitled to possession of the entire mortgaged properties if the defendants 4 and 5 consented to pay up the proportionate amount of the mortgage money in respect of the share other than that purchased by the plaintiffs. In the judgment the question as regards the right of defendants 4 and 5 to redeem was not expressly dealt with, and it appears that an application for review of this judgment was made and, in dealing with that question on the application for review, the learned Judges observed as follows:—

“As to the right of defendants 4, and 5 to redeem during the hearing of the case it was generally admitted that these two defendants had a right. Such a right was never really controverted. In our judgment we took it for granted that the defendants 4 and 5 had a right to redeem and the judgment clearly shows that in my opinion they had such a right. It is unnecessary to make any change in our judgment.”

This order on the review application clearly indicates.-what was really decided in the case, namely, that the plaintiffs in that, case were entitled only to a partial redemption. I am, therefore, of the opinion that the view taken by the learned Subordinate Judge is correct and the plaintiff in the present case is entitled to redeem only Jamuawan, Tauzi no. 7708.

The next question is as regards the proportionate amount on payment of which the defendant no. 1 should be allowed to redeem. In order to apportion the mortgage money it is necessary to find out the value of the three mortgaged properties on the date of the mortgage. As regards two of the properties, namely, the two Jamuawans, the learned Advocate 1 for the defendant no. 1 accepts the finding of the learned Subordinate Judge. He, however, attacks the finding of the Subordinate Judge as regards the value of mauza Bharthu. The learned Subordinate Judge has found that the value of this mauza is Rs. 42,000. It has been contended on behalf of the defendant-appellant that the value of this mauza is about a lakh of rupees and reference has been made to certain documents used as evidence in this case. The learned Subordinate Judge has refused to rely upon these documents, first, on the ground that they relate to a period much later than the date of the 1 mortgage bond, and secondly, on the ground that they show the income of the mauza in dispute in a particular year which is not a safe criterion for fixing the average income for the purpose of ascertaining the value thereof. The documents referred to are judgments and decrees in cases under section 69 of the Bengal Tenancy Act. In my opinion the learned Subordinate Judge was right in the view taken by him. It is contended on behalf of the defendant-1 appellant that the plaintiffs had refused collection papers in respect of mauza Bharthu when called upon to do so. The same objection 1 applies to these collection papers. In the first place, I they related to a period much later than the date of the mortgage. In the second place, the defendant no. 1 ought to have called for the collection papers from Jawad Hussain of the time of the mortgage, and the collection papers of the period after the plaintiffs had taken possession after their purchase could be no guide to fix the value of the property in 1907. We have, however, got a document of the time, of the mortgage. It is a Thica Patta, dated the 28th of June, 1906, and is marked Exhibit 4. By this document several properties were given in lease by Jawad Hussain and one of those properties was mauza Bharthu and the rent reserved for this mauza was Rs. 2,730. On deducting the Government revenue of Rs. 450-4-0 and the road cess Rs. 223-8-0, the balance recoverable by Jawad Hussain was Rs. 2,056-4-0, and twenty times this amount comes to Rs. 41,000 odd. This is the only document on the record showing the income of mauza Bharthu about the time of the mortgage and it supports the finding of the Subordinate Judge. The Subordinate Judge has further referred to a document marked as Exhibit 14. It appears that after the sale of mauza Bharthu in execution of the plaintiffs' decree Jawad Hussain made an application for setting aside the sale on the ground of irregularity and inadequacy of price. In the course of that proceeding one Rudra Deva Narayan Singh filed an application (Exhibit 14) on the 8th of March, 1919, in which he stated that in case the sale be set aside he was prepared to purchase that mauza for a consideration of Rs. 42,000. The learned Subordinate Judge has accepted this figure as the value of mauza Bharthu. Although this document is also of a period much later than the mortgage of 1907, yet it supports the valuation arrived at on a consideration of the Thica Patta, Exhibit 4, and, in my opinion, the learned Subordinate Judge was right in finding the value of mauza Bharthu to be Rs. 42,000.

The next question is as regards the form of the decree. The learned Subordinate Judge has taken the amount of the mortgage money to be the amount calculated in the decree of the plaintiffs. In this he is clearly wrong. As was pointed out in Jageswar Mandal v. Ridhar Lal Aditya Deb, the purchaser, who brings the suit for redemption and recovery of possession, cannot redeem upon payment of the amount decreed, in the mortgage suit; he must pay the amount to be found due under the original mortgage bond, giving deduction for the profits made by the mortgagee auction-purchaser from the date of his taking possession of the property. To quote the language of the Privy Council in Umes Chander Sircar v. Zahur Fatima, the defendant no. 1 in the present, case seeks to take away from the plaintiffs the benefit of the decree and it would be unjust if she could use the decree to cut down the plaintiffs' interest while she deprives them of the whole advantage of it. The case of the defendant no. 1 is that so far as she is concerned the plaintiffs are still but mortgagees and if that be so then the plaintiffs should be allowed such benefit as their mortgage gives them. If the plaintiffs had not got a decree and the defendant no. 1 had come to redeem their mortgage, she must have paid whatever interest the plaintiffs' contract entitled them to, and the Court would have no jurisdiction to cut it down and that is the position in which the parties are placed by the decree in this suit. The plaintiffs are, therefore, entitled to the amount which may be found due, upon their mortgage on taking an account calculating interest at the rate stipulated for in the mortgage bond. The amount so found due will be apportioned amongst the three villages according to their respective valuation as fixed by the learned Subordinate Judge. The interest should be calculated at the bond rate up to the 23rd of December, 1917, on which date the plaintiffs were given possession over mauza Bharthu. After that date the usufruct will be set off against the interest and no further interest will be allowed to the plaintiffs. The amount found payable on account of mauza Jamuawan, Tauzi no. 7708, should be paid by the defendant no. 1 within six months from the date of the decree of this Court. The defendant no. 1 must also pay the costs awarded to the plaintiffs by the decree of the Subordinate Judge and also the costs of this Court in appeal no. 141 of 1926 which appeal is hereby dismissed. In the event of the failure on the part of the defendant no. 1 to pay the amount on account of principal and interest and costs within six months from this date, she will be debarred from her right of redemption which will be extinguished and the plaintiffs will thereafter be put in possession of mauza Jamuawan, Tauzi no. 7708. Appeal no. 13 is allowed in part but there will be no order for costs.

Adami, J.:— I agree.

Appeal no. 141 dismissed.

Appeal no. 13 allowed in part.