Mears, C.J and Mukerji, J.:— This appeal is against the judgement of a learned Judge of this Court and raises two points.
It appears that the learned Judge decided a question of fact, viz., whether all the representatives of the original mortgagees together had acquired an interest in a part of the mortgaged property or whether some of the representatives of the original mortgagees had acquired that interest. It has been pointed out to us that this question never arose in this Court and the argument of the appellants seems to be right.
In clause (g), paragraph 2, of the plaint, the plaintiffs stated that the original share mortgaged was a five biswa one, that a portion of it, viz., one biswa, had already been redeemed, that two biswas had been purchased by the mortgagees themselves, that two biswas remained under mortgage, that out of these two biswas an 11/42 share had also been redeemed and that they wanted the redemption of the remaining 31/42 share out of the two biswas. The defendants in their written statement did not contest this statement of facts. Indeed, in paragraph 1 of their additional statements they accepted this statement of facts and raised the plea in law that the integrity of the mortgage having been broken the plaintiffs were not entitled to ask for redemption of more than their legitimate share. It will be noticed, therefore, that on the pleadings no question of fact, as to whether all the representatives of the mortgagees had purchased or not a share of the mortgaged property, arose. As we understand the pleadings and the proceedings, the pleading brought up before this Court was an entirely new pleading and, in our opinion, it should not have been allowed to be urged in second appeal.
The learned Judge of this Court has held that where the integrity of a mortgage is broken a mortgagor is not entitled to recover by way of redemption more than his share in the property. Mr. Aziz has contested this proposition of law and has cited, as an authority, the case of Shiam Saran v. Banarsi Das. In this case the question was never raised very specifically and no authorities were cited. Indeed, the opinion delivered in this judgement is contrary to the opinion expressed in this Court in Kallan Khan v. Mardan Khan, Munshi v. Daulat and Zaib-un-nissa v. Maharaja Parbhu Narain Singh. We are clearly of opinion that the learned Judge from whose judgement this appeal is, was perfectly right in holding that where the integrity of a mortgage is broken a mortgagor is not entitled to claim redemption of more than his own share. Briefly, the reason is this, that the integrity of a mortgage is necessary for the benefit of a mortgagee alone and where that has been broken and a redemption has to be allowed, there is no equity in favour of one of the mortgagors to possess the remaining property, although the same is more than his own legitimate share. If a redemption of a larger share be allowed, the redeeming mortgagor will be in possession of his own share as the owner and will hold the remaining share, as mortgagee, having been subrogated to the position of the original mortgagee. The co-mortgagor, who has so far not redeemed his share, will have to ask for redemption on payment and it is immaterial to him whether he goes to a co-mortgagor who has redeemed or to the original mortgagee. In the circumstances, there is no reason why a co-mortgagor should have more than his own share.
It has been next contended on behalf of the respondents that the fact that the remaining mortgagors are parties as defendants to the suit was a justification for decreeing the redemption of the entire property in favour of the plaintiffs. This proposition of law clearly goes counter to the case of Kallan Khan v. Mardan Khan and Zaib-un-nissa v. Parbhu Narain. In all redemption cases which are properly framed, not only the redeeming co-sharers should be made parties but also the mortgagors who have not so far joined in the suit for redemption. The necessity of impleading co-mortgagors is this that the share and the right to redeem of the plaintiff cannot be determined behind the back of the non-redeeming mortgagors. It follows, therefore, that if the argument for the respondents be sound, in every case of a properly framed redemption suit the plaintiff would be entitled to redeem not only his own share but also the shares of his co-mortgagors whom he has made defendants. This cannot be right.
The result is that the appeal succeeds. We allow the appeal, set aside the decree of this Court and remand the suit through the lower appellate court to the court of first instance for determination, of the share of the plaintiff in the two biswa share in question and the proportionate amount of the mortgage money that they must pay. The plaintiffs will not be allowed to redeem more than their legitimate shares. The appellants will have their costs of the present appeal, but the remaining costs will abide the result.
Appeal allowed.