JUDGMENT
1. The plaintiff is an assignee of a mortgage which was executed by the defendants in favour of one Vedanatha Ramanuja Chariar. The entire amount which was to be advanced under the mort-gage was Rs. 400, but, as a matter of fact, the original mortgagee only advanced Rs. 235, and we may take it that he refused to advance the balance. But it was never pleaded that the defendants cancelled the mortgage on that account and the plaintiff assignee of the mortgage seeks to enforce the mortgage to the extent of Rs. 235 actually advanced. The learned District Judge seems to think that, even if the defendants did not in fact put an end to the mortgage by exercising their rights under section 39 of the.
2. Indian Contract Act, the Court must still treat; the contract as at an end merely by reason of the fact that the mortgagee did not advance the entire amount. Section 39, Indian Contract Act confers on a party to a contract the right to put an end to the contract in case of default on the part of the other party to the contract to perform his promise in its entirety; but the person aggrieved in such a case may choose not to avail himself of the right. But, if he does not avail himself of the right there is nothing in the law which says that the contract must still be treated as having been cancelled. For instance, in a case like this, it would be clearly inequitable to permit the defendants, who never exercised their right under section 39 or intimated to the mortgagee that the mortgage had been put an end to, to turn round and say now that the time for recovering the money as a personal debt has expired, I will put an end to the mortgage. The case in Subba Row v. Devur Chatty 18 M. 126, to which the learned Judge refers, does not lay down any such proposition. On the other hand, the view we have expressed is supported by the decision in Motichand v. Sagun 29 B. 40 at p. 50, Bajangi Sahai v. Udit Narain Singh 10 C. W.N. 932. The learned District Judge has decided against the appellant also on the ground that he did not join his undivided son in the suit, but no such question as to the defect of parties was ever raised by the defendants, and it was not open to the learned District Judge to dismiss the suit on that ground. We must, therefore, reverse the judgments of both the Lower Courts and the plaintiffs will have the usual mortgage-decree as prayed for in the plaint and the costs of the suit in all the Courts. The defendants will be given three months' time for payment of the decree amount.