1. The plaintiffs-respondents are the representatives of Babu Sarada Charan Mitter who instituted the suit out of which this appeal arises. Babu Sarada Charan Mitra was according to the plaintiffs a purchaser of certain patni and holder of Darpatni leases in a property called Lalpur. The suit is brought against persons whom we call the Roys, the defendants-appellants, in whose favour a mortgage was executed of this property in 1896 by three persons whom we will refer to as the Bhattacharjees.

2. A suit was brought on the mortgage in 1909 by the mortgagees against the mortgagors (the Bhattacharjees) only, and without impleading Babu Sarada Charan Mitra who should, it is conceded, have been made a party if he had an interest in the property as is claimed for him. In the mortgage suit the then plaintiffs remitted a sum of some Rs. 4000 and one of the principal questions in this suit is whether the plaintiffs are entitled to the benefit of such remission.

3. The date of the preliminary decree in the mortgage suit was the 7th December, 1909 and of the final decree the 25th January, 1913. The Roys purchased the mortgaged property in execution of their decree in 1914 and obtained possession of it on the 4th August, 1915 and are now in possession. The suit first seeks for a declaration that the debt due under the mortgage of the 9th August, 1896 was satisfied before the institution of the suit on the said mortgage, that the said suit, the decree obtained thereunder and the sale under that decree were fraudu lent and are not binding upon the plaintiffs.

4. The judgment under appeal is against the plaintiff-respondents on this part of their case and no attempt has been made to reverse it. It is further prayed in the suit that should the Court find that any portion of the mortgage debt still remains unpaid, an apportionment of the mortgage debt may be made between the different mortgaged properties; that an account be taken of what has been realised by the Singha Roy defendants appellants for redemption of the mortgaged properties if necessary, and for the possession of the entire 8 annas share of the patni Taluk Lot Lalpur after such redemption.

5. It is not necessary to say anything upon the prayer for apportionment because the manner in which the learned Judge has dealt with this contention has not been contested before us. The real question which we have to decide is whether or not the plaintiffs-respondents have a right to redeem and if so upon what terms.

6. The learned Judge has held in favour of redemption on the terms of the decree passed in the mortgage suit. The defendants appeal on the ground that there was no right to redeem and if there was redemption could only be on the footing of the mortgage.

7. The main facts relevant to the arguments addressed to us in appeal are as follows: The property in suit Lalpur belonged to one Upendra Nath Bhattacharjee who had four sons namely Naba Kumar Bhattacharjae, Kashi Nath Bhattacharjee, Harendra Nath Bhattacharjee and Debendra Nath Bhattacharjee. The last named was a lunatic. The others are referred to as the three brothers, the Bhattacharjees.

8. These three brothers obtained Letters of Administration of their father's estate and on the 9th August 1896 executed, with the previous sanction of the District Judge, the mortgage which we have mentioned, of this and other properties for the sum of Rs. 7,025 carrying compound interest at 10½ per cent, per annum with annual rests. The interest sanctioned by the District Judge was 9 per cent, simple interest. During the months of July and August 1901, these 3 brothers executed in favour of Babu Sarada Charan Mitra 3 Darpatni leases in respect of their 6 annas share in the property.

9. On the 2nd August, 1902 Aghore Mohini Debi the wife of the lunatic Debendra as Manager of his property with the sanction of the District Judge sold a two annas share of the latter's patni right to Babu Sarada Charan Mitra. In January in the same year in execution of a money decree the 6 annas patni interest of the 3 brothers was sold in execution and bought by one Tripura Charan Chatterjee, who in August 1915 sold the property to Babu Sarada Charan Mitra.

10. The result therefore of these transaction (if real and not benami as alleged) was that Babu Sarada Charan Mitra had an eight annas patni interest in the property in suit and was darpatnidar under himself as regards the 6 annas. At the date of the mortgage suit his interest (if real) was a 9, annas patni and a 6 annas darpatni interest in the property mortgaged.

11. The case of the appellants however is that the plaintiffs have no title as they alleged that all the leases and sales to which we are referred were not real transactions. It is alleged that they were paper transactions without consideration, made benami for the benefit of the mortgagors. Stress is laid in this connection on the circumstances that Babu Sarada Charan Mitra was aware of and advised the mortgagees in respect of the mortgage suit and yet was not made a party to it. The evidence as to this part of the case is not clear.

12. Farther it is said that if he really had an interest such as is claimed for him he would have redeemed the mortgage before this. Each of the said transitions was attacked in the lower Court but this part of the case was not very seriously presed before us and for good reasons. There is no question whatever that the darpatni leases were granted to Babu Sarada Charan Mitra and that these were red transactions.

13. That this is so is borne out by the evidence produced by the appellants themselves. If so, then the darpatni interest in Babn Sarada Charan Mitra was sufficient to support the suit for redemption, whatever map be the case as regards the subsequent sales to and purchased by him.

14. But we see no reason for dissenting from the learned Judge's decision on this part of the case. He holds that the darpatni leases to Babu Sarada Charan Mitra were for consideration; and that the rent was paid by Babu Sarada Charan Mitra who was in undisturbed possession of the disputed 8 annas share of the patni taluk for a period of more than 12 years until August 1915 when symbolical possession of the property was taken by the appellants.

15. As regards the sale to Babu Sarada Charan Mitra by Srimati Aghore Mohini Debe we have the District Judge's order granting permission to Srimati Aghore Mohini Devi to sell her husband's (the lunatic's) 2 annas share in the patni taluk. Lastly as regards the purchase of the 6 annas patni interest by Tripura Charan Chatterjee and the sale of the same by him to Babu Sarada Charan Mitra, there is not, as the learned Judge holds any document which supports the suggestion that the purchase-money was paid by the Bhattacharjee defendants, the mortgagor and account books of Tripura Charan show that the purchase was made by him with his own money.

16. He holds therefore as we do that the transactions mentioned above were real transactions for consideration and if so, it is conceded that they support the right of the plaintiffs to redeem.

17. The real question in this case is one of greater difficulty and has been argued at greater length. It is not denied that if Sarada Charan Mitra had the interest in the property which we find him to have had, he should have been made a party to the previous suit and would have been entitled to and is now entitled to redeem. The real and substantial question in, this case is as to the terms upon which such redemption should be allowed.

18. The Subordinate Judge has allowed redemption on payment of the decretal amount in the previous suit together with 6 per cent, interest from 7th December, 1909 the date of the previous preliminary decree to the date fixed for redemption in the present suit. The appellant contends that this is wrong.

19. This issue raises the question whether, when a person insists up an his right to redeem on the ground that he was not a party to and bound by the decree, the account should be taken on the footing of the decree or of the security which he seeks to redeem.

20. For the appellants it is urged that the respondent cannot both say that the decree is not binding on him and take the benefit of it. He cannot both repudiate and approbate. Hrs right is a right to redeem the mortgage, the mortgage decree being set aside to enable him to do so. For the respondent it is urged that the mortgagees were at fault in not miking their predecessor a party. If he had been made a party he would (it is assumed) have had the benefit of the remission made in that suit, by the mortgagee as also of the order made in that suit as regards interests.

21. Reliance is placed on the following observations of the Privy Council in Sukki v. Ghulam(1). “The plaintiff is a puisne mortgagee seeking to enforce her mortgage, the prior mortgagee, in his suit having failed to make her a party. It is the duty of the Court to give the plaintiff an opportunity of occupying the position which she would have occupied if she had been a party to the former suit.”

22. In the first place it seems to us clear that this, the latest decision of Judicial Committee, establishes that the account must be taken on the footing of the mortgage which subsists and which it is sought to redeem and not as the learned Judge holds merely on payment of the amount decreed in the previous suit with interest at the rate of 6 per cent.

23. No doubt the decisions of the Judicial Committee Hetram v. Shadi Ram(2) and Matru Mal v. Durga Kunwar(3) favour the respondent but as pointed out in the latest decision Sukhi v. Ghulam Safdar. Section 89 of the Transfer of Property Act has been repealed by the Code of Civil Procedure, 1908 and the words in S. 89, “and there after the defendant's right to redeem and the security shall be both extinguished” have gone.

24. It was these words which were the foundation for the view that the account must be taken on the footing of the decree as according to the former provisions the mortgage was (apparently against all persons) extinguished. But these words have gone and their Lordships say “Now the words having gone their Lordships feel no difficulty in holding that the law remains as it was before the Transfer of Property Act.”

25. According to that law see Umesh Chandra Sircar v. Zahoorfatime(4) the account in such a case should be taken on the footing of the mortgage. The plaintiffs not being bound by the decree are in the same position as if no suit on the mortgage had been brought. We do not think that the third position taken up can be supported namely that we should deil with the matter as if the suit on the mortgage was pending and the respondent is now being made a party to that suit.

26. But it is then said, assuming but not admitting, that the account must be taken on the footing of the mortgage, yet the Privy Council in Sukhi v. Ghulam say in the passage already cited “The plaintiff is a puisne mortgagee seeking to enforce her mortgage, the prior mortgagee in his suit having failed to make her a party. It is the duty of the Court to give the plaintiff the opportunity of occupying the position she would have occupied if she had been made a dirty to the former suit,” and it is urged that the plaintiffs should be allowed to redeem on the same terms as if they were parties to the decree.

27. It may well be that in a suit of such a character as this we must take notice of events occurring subsequent to the mortgage or decree. The facts of the case relied on is an instance of this. But the use to which these words are put here is not we think justified by the decision.

28. As stated in the previous mortgage suit the mortgagee made a remission of some Rs. 4000. In the plaint in the suit of 1909 (Ex. D) the mortgagee-plaintiff stated “there being no possibility of the entire amount being realised from the property as stated in Schedule Kha the plaintiffs are suing for the sum of Rs. 4,223 and the claim with regard to the interest (that is outstanding) is given up.”

29. It is argued that the respondents should now also get the benefit of the remission made in the previous suit in favour of the mortgagors, on the above mentioned principle laid down by the Privy Council.

30. And next it is argued that interest should be calculated at the rate of 9 per cent, simnle interest as sanctioned by the District Judge and not 10½ per cent, compound interest, and that such interest should run not from the date of the mortgage to the date of payment fixed in this suit but from the mortgage date to the date of payment fixed in the previous suit, because that would have been the order had the respondents been made a party to the previous suit.

31. The argument as to the rate at 9 per cent, is based on the fact that the sanction of the District Judge to the mortgage was for a mortgage carrying simple interest at 9 per cent.

32. As regards this contention which would apply only to the two anna share of Debendra we may say at once that a disposal of property by an administrator in contravention of Section 90(3) of the Probate and Administration Act is only voidable and not void and the same has not been avoided on his behalf or by the assignees of his share. We hold then that the contract rate was 10½ per cent, interest as stated in the mortgage.

33. The argument as to the period for which the contractual rate should run is based on the observation of the Privy Council that the party redeeming should be given the opportunity of occupying the same position as he would have occupied if he had been made a party to the former suit. If effect is given to the respondents' contention then the result is this.

34. Although the account is (not as we read the Judicial Committee's latest decision) to be taken on the basis of the decree but of the mortgage, actually the same results follow as if the decree were made the basis of the account, for the respondents in such case would according to their contention get the remission allowed in the previous suit, and the period during which the contract rate is to run would be that determined in the previous suit.

35. We do not think that the judgment of the Privy Council justifies this argument. It is the fact, moreover, that if Babu S.C Mitra had been made a party to the former suit he-would have got the benefit of the remission-Whether this remission would have been adhered to if the purchaser and sub lessee had been originally a party or had been subsequently a party we cannot say.

36. It is possible that the mortgagee may have been willing to remit his claim against the defendants to his suit who were not prepared to redeem a property the value of which was small but might have pressed it if the purchaser and lessee had been a party, for the latter, though under no personal obligation to pay may have desired and may have been willing and able to redeem, in which case the mortgagee might have pressed a claim which he had thus an opportunity of realising.

37. It is argued that unless wo adopt the respondents' contention it would be a hardship on them because they would suffer through the default of the mortgagees to make Babu S.C Mitter a party to their suit as they should have done. But the answer we think in this or any similar case is that the hardship does not exist, as it is always open to the person not made party to redeem or to enforce his right of redemption by suit.

38. It is possible thar Babu S.C Mitter might have not found it convenient or worthwhile to redeem at the time fixed by the previous decree as may be inferred from the fact that knowing all the circumstances he made no attempt to redeem all these years and possibly only did so in this suit owing to an increase value in the property.

39. In support of the plaintiffs' contention reliance is mainly placed upon the case of Gangadas v. Jogendra(5) and also on some passages in the judgments of the cases cited above on behalf of the appellants. In the case of Gangadas v. Jogendra the position shortly stated was this. The first mortgagee purchased the property in execution of his mortgage decree to which a puisne mortgagee was not a party. The puisne mortgagee had in the meantime purchased some of the properties in execution of his decree on his own mortgage.

40. The first mortgagee then sued for recovery of possession on the basis of his purchase of the mortgaged properties and the question: was on what terms the defendants in that suit for possession were bound to redeem the plaintiff in order to retain possession of the properties as against him. The learned Judges seem to have been of opinion that the liability under the mortgage would be terminated on the date of the decree when it would pass from the domain of contract into the domain of judgment.

41. This appears to us would have been so having regard to the concluding words of Section 89 of the Transfer of Property Act under which the mortgage decree was passed. [See Hetram v. Shadi Ram]. The position has, as already stated, now been altered by the omission of those words in the corresponding rule of the Code of Civil Procedure (O. 34, R. 5) which re-place the repealed Section 89 of the Transfer of Property Act. See Sukhi v. Ghulam.

42. Then in Gangadas v. Jogendra, the learned Judges observe as follows, taking a hypothetical case:—“In the first place the mortgagee cannot legitimately ignore the fact, that the mortgage-debt has been converted into a judgment debt, and execution has followed thereupon, because it is only in his character as a purchaser and not as a mortgagee that he is entitled to possession. In the second place, if the suit for possession were treated as in substance a suit to enforce the security against the previously excluded person, the mortgagee would be successfully met with the plea of limitation.”

43. There is however no analogy between such a case and the present one. It seems to us that under the later ruling of the Privy Council in Het Ram's case the plaintiff in the case of Gangadas would not have been entitled to any relief. Here the plaintiff seeks to redeem the mortgagee on the basis that he is not bound by the decree.

44. It is true that there are observations in the judgment of Gangadas's case which would seem to support the contention of the plaintiff but having regard to the decision of the Judicial Committee in Sukhi v. Ghulam, we do not think that those observations are now binding on us.

45. The respondent next contends on the strength of a passage in Umesh Chandra v. Zahoor, that he is entitled to the remission made in the previous suit, as their Lordships observed that the penal rate of interast could not be claimed in that case because it was not claimed in the previous suit in 1875.

46. We think however that their Lordships did not allow the penal rate of interest not because it was not claimed in the previous suit but because it was penal. Their Lordships however allowed such interest as the contract gave the mortgagee.

47. We are of opinion therefore that so far as the plaintiff is concerned the mortgage of the defendant subsists and that the plaintiff should not be allowed to approbate and reprobate the decree in the previous suit and he can only be allowed to redeem on the terms of the mortgage and on payment of interest at the rate payable under the mortgage up to the date of redemption to be fixed in this case.

48. In our opinion we must deal with the matter as if there had been no suit at all. This follows from acceptance of the principle that the account is to be taken on the footing of the mortgage. That being so the mortgagees are entitled to receive the whole of the principal sum due on the mortgage with interest at the bond rate of 10½ per cent, from the date of the bond until the date which as the data for redemption filed by the lower Court is now passed, we fix as a date three months from the date of the declaration of the amount payable under this, decree and thereafter at 6 per cent.

49. As regards the actual profits realised since the 4th of August, 1915, when the mortgagee obtained possession of the mortgaged property the learned Judge has without taking any account simply directed that such realisations be set off against interest payable. This is a rough and ready method which may be adopted with the consent of the parties. But here the respondents object to this course in their objection which must be allowed. The amount of profits should not be taken as an equivalent of the interest due.

50. We therefore direct that an account betaken of what, is due to the defendants for principal and interest on the mortgage and, for his costs of the suit up to this date allowing credit for all the sums paid to the mortgagees and the actual profits realised by them during the period they have been in possession of the mortgaged property, plaintiff being given three months from the date of declaration of the amount due on the account hereby directed for redemption of the mortgage. The usual redemption decree is hereby made. In the result both the appeal and cross objection succeed and the judgment and decree of lower Court are reversed. We pass in lieu thereof a decree in terms of the judgment. The appellant is entitled to his costs against the plaintiffs-respondents to be assessed on the valuation of the appeal against which the plaintiffs respondents may set off the costs of their cross-objection which in part succeeds and which costs we assess at Rs. 150 hearing fee and no further costs.

51. As regards respondents 6-9 who were only concerned with the question of apportionment the cross-objection by plaintiffs respondents was not pressed and is dismissed. In respect of them the plaintiffs-respondents will pay to the respondents 69, 5 gold mohurs hearing fee.

52. Appeals allowed.