Bose, J.:— This is a defendant's appeal in suit for redemption and the simple question for decision is whether an occupancy tenant who was created after the mortgage by the mortgagor-malguzar has a right of redemption.

2. One Gangadhar was the sole owner of the property in suit, namely, patti no. 2 of mouza Achhola. He mortgaged it to the defendant's father on 2-6-1932. After the mortgage, Gangadhar issued leases to the three plaintiffs, as follows: On 29-1-1933 to plaintiff 1, on 3-6-1932 to plaintiff 2, and on 3-9-1934 to plaintiff 3. These leases were unregistered and so are inadmissible in evidence; equally, they passed no title. But under the tenancy law of this Province occupancy tenants can be created in other ways, for example, by acceptance of rent and so forth. Accordingly the action of Gangadhar in placing these persons on the land and accepting rent from them had the effect of making them occupancy tenants. That is not denied, and both sides are agreed that the plaintiffs are occupancy tenants. In the year 1939 the defendant sued Gangadhar's sons under the mortgage and foreclosed on 4-4-1939. So far as the fields in suit are concerned he foreclosed only the proprietary interests and made no attempt to disturb the plaintiffs' possession or to question their right as occupancy tenants. In this suit also he admits, and has admitted all through, that they are the occupancy tenants of the plaint property and have the right to remain on the land in that capacity.

3. The plaintiffs were not joined in the mortgage suit, and claim that as they had an interest in the mortgaged property they have a right to redeem, and not having been joined they are not affected by the suit and can exercise their right of redemption in the present suit.

4. Now I have no doubt that ordinarily the mortgagor in possession has a right to make leases which will bind the mortgagee provided they are made in the ordinary course of village management and otherwise conform to Section 65-A of the Transfer of Property Act; nor indeed was that disputed. What was said was that power did not exist in the present case because it had been expressly abrogated by the terms of the mortgage. It was said that S. 65A(3) provides for this and makes the provisions of sub-section (1) applicable, “only if and as far as a contrary intention is not expressed in the mortgage deed.”

5. That brings me to a construction of the document. But before proceeding to that I will pause to observe that when the law fastens terms of its own on to a contract those terms must be read into the deed as if they formed part and parcel of the agreement. It is not necessary for parties to a deed to produce in it terms and conditions which the law imposes upon them. Also, if, as here, a statute imposes conditions which are to apply unless expressly abrogated those conditions will clearly apply whether they are inserted in the deed or not unless and except in so far as, they are expressly abrogated. The relevance of this will be apparent when I deal with a decision of the Judicial Committee in 57 Cal. 11761 at p. 1180.

6. The mortgage is Ex. P-5-A. The relevant passages are these—

“I have mortgaged…. without possession…. my family malguzari milkiyat of mouza Achhola, Patti No. 2… together with all rights and privileges and the khudkasht land to the extent of which it—consisting of the old khudkasht land and that received through surrender and ejectment of tenants of the village—is in my holding and possession in the year 1931–1932.”

7. It was argued as regards this clause that two kinds of property were mortgaged, first the malguzari milkiyat and second the khudkasht, that is to say whatever was khudkasht at the date of the mortgage. With that I have no quarrel, nor was this contested. What was objected to was the inference sought to be drawn from this when read along with the next relevant clause which I now reproduce. It runs:

“I will not transfer the above mortgaged property to any other person by mortgage, sale, etc., and if I do that, then that action also shall be treated as false. Whatever improvements I effect in the aforesaid property, that is, whatever land I acquire from the tenants of the village, shall all be included in this deed of mortgage. At present the aforesaid property does not stand transferred to any other person by mortgage, sale or gift and is not subject to any debt of bank or taccavi, etc. and is free from all encumbrances.”

8. It was argued that this clause contains an express prohibition on transfer and, therefore, on creation of tenancies because a lease is a species of transfer.

9. That a lease is a transfer cannot be disputed, but the deed does not contain a prohibition on all transfers otherwise the words “by mortgage, sale etc.” would be unnecessary and redundant. The whole point of inserting those words was to show that only particular kinds of transfer were prohibited, namely those enumerated. The next question, therefore, is whether the particular kind of transfer which occurs when a malguzar creates an occupancy tenant in the ordinary course of village management, can be said to fall within the scope of the word “etc.”. I am clear it cannot.

10. Now, in the first place, as a pure matter of construction, I am clear that there is here no general prohibition on transfer. It is not all transfers which are prohibited but only those of a particular kind, namely—“by mortgage, sale, etc.” Had the intention been otherwise, the words of limitation “by mortgage, sale, etc.” would not have been there. There would instead have been a simple prohibition on transfer and nothing more. Therefore, I gather that certain kinds of transfer are contemplated, though of course mortgage and sale do not cover the whole field otherwise the word “etc.” would be redundant. The question consequently is, what kinds of transfer must be taken to have been in the contemplation of the parties as permissible and what not.

11. Now as to this the ejusdem generies rule must be applied to the word “etc.” What is that rule? When applied to mortgages it must be taken to mean transfers of the kind which one ordinarily finds in mortgage deeds, that is to say transfers likely to affect those interests which a mortgagee has a right to expect shall not be jeopardised. Transfer by gift is one of these and is expressly mentioned a few lines later. On the other hand, there being no express prohibition on the creation of tenancies, it would be proper to assume that tenancies created in the ordinary course of village management and falling within the scope of S. 65A are among the permissible class of transfers. Other tenancies falling outside this are not. This is particularly so when a statute says that this class of transfer is to be within the competence of a mortgagor unless expressly abrogated in the deed. There is no express abrogation here. If there is any, it has to be read into the word “etc.” and so left to inference. I am not prepared to construe the word “etc.” in this way, the statute being what it is, and also for more general reasons.

12. As I have said, in the usual way a mortgagee seeks to safeguard his interests by providing for transfers which are likely to jeopardise his rights. Tenancies granted in the ordinary course of village management do not jeopardise a mortgagee's position. On the contrary, unless such tenancies are granted and the village managed in a right and proper way his security will diminish. It is impossible to contemplate right and proper management of a malguzari village in this Province without the creation of tenancies as the old ones fall in, and I can hardly think the idea was otherwise in this deed. It is true the mortgage was repayable in 12 months, but the deed contemplates and makes provision for the more usual case in which the matter drags on for years. It speaks of the payment of interest “year by year” in the event of default. It refers to litigation, and that, as we all know, is normally of a protracted nature in mortgage cases. Accordingly, I cannot construe the clause under consideration to mean that the parties intended to hold up the usual course of village management for years on end and thus jeopardise the security. The clause, in my judgment, means no more than this. Khudkasht is a fluctuating quantity because of tenancies falling in and new ones being made. All that the parties wanted to make clear was that the mortgagee would, on foreclosure, obtain all the normal proprietary rights in this class of land as it stands at the date of foreclosure.

13. That brings me to the Privy Council decision in 57 Cal. 1176. The facts there were as follows. In the year 1910 a leased to for a term of 61 years. The terms of the lease permitted the lessee to underlet the premises, but not to “assign, transfer or, in any way, to alienate their right, title and interest upon the demised land.” Breach of this condition was to entail forefeiture.

14. In 1923 the lessee mortgaged his leasehold interest in the property and sub-let the premises to the mortgagees for the whole of the unexpired residue of the term of 61 years.

15. Now, in England, there is distinction between an assignment of the unexpired portion of a lease and a sub-letting, and, owing to the rules of conveyancing special to that country, an underletting for the whole of the unexpired portion of a lease amounts to an assignment and is not a mere sub-letting. In order that a conveyance should operate as a lease, or as a sub-lease, the owner, or the lessor, as the case may be, must reserve a reversion to himself so that the property will revert to him, for however short a time, at the end of the lease. Unless that is done the transaction is viewed as an assignment out and out and not as a lease.

16. Now, it is patent that if a lessee underlets for the whole of the unexpired portion of his lease the property will not revert to him. It will go back to the lessor. That, in England, will amount to an assignment because the lessee has, in that event, parted with the whole of his interest in the property. It was, therefore, contended in that case that as the sub-lease was of the whole of the unexpired term it amounted to an assignment and was not a mere sub-letting. Accordingly, it offended the covenant not to assign and so attracted the clause of forefeiture.

17. Their Lordships held that the English law had no application and that under the Transfer of Property Act, which contemplates even a perpetual lease where no reversion is reserved to the lessor, a transaction of this kind would be a sub-lease. They also held that under S. 108(j) of the Act a lessee had power to transfer by sub-lease the whole of his interest in the property “in the absence of a contract to the contrary.”

18. They next proceeded to consider whether there was any contract to the contrary and held that there was not because, though a sub-lease amounted to a transfer, sub-letting was expressly permitted in one part of the deed and therefore the covenant against assignment and transfer which I have reproduced above was “clearly subject to the express power to underlet”. It is this part of the judgment which, in my opinion, is relevant here.

19. It will be observed that the provisions of the Act in that case were similar to the provisions which obtain here. Under S. 108(j) a sub-letting is expressly stated to be permissible “subject to a contract to the contrary.” In our case S. 65A empowers a mortgagor to lease so long as “a contrary intention is not expressed in the mortgage deed”. Therefore, in both cases it is necessary to look to the deed to see whether a contrary intention is expressed.

20. Similarly, in both cases we find, in the deed, an express prohibition on transfer, which, in the Privy Council case would, standing by itself, have covered a sub-letting, and here, would, if there had been nothing further, have covered a lease. In both cases, we find there was something further. In the Privy Council case the prohibition clause, which standing by itself, was absolute, was qualified by an express permission to sub-let. Here, the matter is qualified by words of limitation which when read along with S. 65A(a) must, in my judgment, be taken to permit a letting because S. 65A(1) not having been expressly abrogated, and the prohibition on transfer having been qualified in the manner shown above, must be taken to be a term of the contract and must, therefore, be given the same force as the term on which their Lordships acted in the case before them. This is particularly so as, in my judgment, general terms in a deed must be construed with reference to the nature of the transaction and the surrounding circumstances which the parties are likely to have had in mind. The most important circumstance here is that a malguzari village in this Province cannot be properly and efficiently managed without the creation of tenancies and so would deteriorate in value unless run along normal and proper lines. A mortgagee cannot be taken to have contemplated a possible diminution in the value of his security. Had his ideas been otherwise, and had he novel and startling notions in his mind, he would have taken care to express them clearly and place the matter beyond doubt. He would hardly have left a matter of this kind, so contrary to accepted practice and notions, to mere inference. My conclusion is that the terms of the mortgage (Ex. P-5-A) do not prohibit a leasing of the property. Consequently the tenancy created was not in breach of any covenant in the deed.

21. It was assumed in the argument that concludes the matter, but I do not think it does. It merely shows that the mortgagee is bound by the lease. It does not help us to decide whether the lessee, or the tenant, has a right to redeem.

22. The right of redemption is governed in India by Section 91 of the Transfer of Property Act. Under it a number of persons, besides the mortgagor, are given the right. Among them are

“any person (other than the mortgagee of the interest sought to be redeemed) who has any interest in…… the property mortgaged.”

23. Now, I need not stop to consider here whether the word “interest” as used here is to be construed in its popular and more extended sense, or has to be given a more restricted meaning because of the contrasting senses in which the Act speaks of the transfer of ownership in S. 54 dealing with sales, the transfer of an interest in S. 58 dealing with mortgagees, and the transfer of a “right to enjoy” in S. 105 relating to leases, because whatever the force of such a view, it is, I think, possible to decide this case on a narrower ground. All I will say here is that the possibility of such a construction was adumbrated by Stone, C.J and myself in I.L.R (1942) Nag. 1452 at p. 155. However, we recognised that the matter was debatable and left it at that. Here also I say no more than that. But whatever the right view may be as to that, I am clear that we cannot swing to the other extreme and hold that the word has no technical significance and that it must be taken to cover any sort or kind of interest however negligible and however remote, judicial utterances to the contrary not-withstanding. In the realm of insurance, insurances are limited to persons who have what is called an “insurable interest” in the subject-matter of the insursance. Here also I am clear that the word must be construed in a technical sense. The scope of its technical significanse may be a matter of debate, but that limitations are intended, and indeed must be placed upon the word, is, I think, hardly open to doubt. A few examples will suffice.

24. A bankrupt cannot redeem because he has no legal interest in the property; but it can hardly be contended that he is not interested. If then we are justified in qualifying “interest” by restricting it, as we must, to “a legal interest”, at once we concede a technical, as opposed to a popular, significance to the term, and thereafter the only difficulty lies in defining the ambit of its operation.

25. I will cite three more instances of persons who have an “interest”, and who were once recognised as having an interest by the Legislature itself, but who can no longer redeem. They are the persons enumerated in cls. (d), (e) and (f) of old S. 91. The amended section has dropped those clauses and so there can be no doubt that they are not now included among the persons who can claim an “interest” within the meaning of the section. But it can hardly be denied that they have an interest in the popular sense, and more, that they have valuable rights which they might easily lose on foreclosure or sale. Consider for instance the case of the judgment-creditor of the mortgagor mentioned in old sub-cl. (f) who has obtained execution by attachment of the mortgagor's interest in the property. He has no “right, title or interest” in the sense that he is not the owner, or even anything analogous to an owner—he has not even a charge. But it can scarcely be contended that he has no interest in the wider sense and that he has no rights which he can possibly wish to protect. Therefore, it is abundantly evident to me that the word has a technical significance, and in the absence of a statutory definition, the only alternative is to view the matter in its historical setting and apply the rules of “justice, equity and good conscience.”

26. Now if a person like the judgment-creditor in old sub-cl. (f), who undoubtedly has an interest in the popular sense which is likely to be affected by the mortgage, is not allowed to redeem under the present law, how much more should persons who cannot be affected by the mortgage be excluded. One class of persons is already excluded—those with paramount titles—why not all such persons? The rule is grounded in sound sense and was enunciated as far back as 1901 by the Calcutta High Court in 5 C.W.N 833 at p. 85. It was later incorporated in Ghose's Law of Mortgage, vol. 1, Edn. 4 page 238 in the year 1911, and was cited with approval in this Provinces by Mittra, A.J.C in 14 N.L.R 1174 at pp. 119, 121. That was in 1916. I am not aware of the rule ever having been doubted.

27. Now in construing Section 60 of the Transfer of Property Act, their Lordships of the Privy Council said in I.L.R (1942) ALL. 6085 at p. 623:

“It is not unreasonable to suppose that in 1882 the Legislature and its draftsmen were aware of the rule of law obtaining in these provinces and aware also of the existence of some opinion in favour of a wider right of redemption.”

28. In support of the rule of law their Lordships cited decisions of the Calcutta and other High Courts, and in support of the wider opinion they referred to Rashbehari Ghose's opinion in his book on the Law of Mortgage. If it was legitimate to do that in order to determine how far the scope of redemption can be widened, it is, I think, equally legitimate to apply the same logic and the same rule when considering how far it must be narrowed. It is, I think, in the language of their Lordships, not unreasonable to suppose that the draftsmen who amended and redrafted S. 91 in the year 1929 were aware of the views of the Calcutta High Court and of the Judicial Commissioner's Court of this Province, as also that of Rashbehari Ghose in 1911. It is, I think, not reasonable to suppose that they took into consideration the fact that these views expressed in 1901, 1916 and 1911 respectively had never been judicially doubted or dissented from and therefore, when redrafting S. 91, left the portion relating to persons having “any interest in or charge upon the property” as it was. I conclude, therefore, that this is still the law and that consequently persons whose interests are not affected by the mortgage and who are not likely to be affected by foreclosure or sale cannot be permitted to redeem.

29. A large number of cases were cited in which lessees have been permitted to redeem both in England and here. I do not intend to examine them in detail because, in every case, it was held that the persons had an interest which was likely to be jeopardised by the mortgage. Among these cases are 14 N.L.R 117, 16 N.L.R 180,6 19 N.L.R 187 and 23 N.L.R 1288 from this Province and a number of cases from other Provinces which will be found collected in Mulla's Transfer of Property Act, Edn. 2, p. 608. Most of them are based on (1888) 39 Ch. D. 4569 from England. But even there the tenant for years cannot redeem unless the mortgagee refuses to confirm the lease: see Halsbury's Laws of England, Hailsham Edition, vol. 23, p. 302? I remark in passing that the English law is not always a safe guide because we are governed here by the Transfer of Property Act and must first look to its terms and construe its language. It is true Viscount Haldane remarked in 48 Cal. 2210 at p. 29 that section does no more “than declare applicable what is just the law as established in England;” but, on the other hand, in 37 Cal. 1176 their Lordships censured the Courts in India for having resorted to English decisions before examining the terms of S. 60 (see p. 1180), and in I.L.R (1942) ALL. 608 the Judicial Committee confined themselves to an exhaustive scrutiny of the same section without reference to a single English decision. What applies to S. 60 applies equally, I think, to S. 91.

30. If then the rule is, as I conceive it to be, that no person whose interests are not likely to be affected by the mortgage can redeem, then I am clear that the plaintiffs have no right. In the first place, the defendant has accepted the tenancy and has never questioned it; therefore, even on the English view he would appear to have no right, but that apart, even if the defendant wanted to object he would have no power to do so. As I have just held, the mortgage deed here does not abrogate the mortgagor's right, therefore, Section 65-A applies and of the C.P Tenancy Act, having fastened on the contract between the mortgagor and the plaintiffs, has made the position of the plaintiffs more than ever secure. They have nothing to fear from the mortgagee, and their rights are wholly unaffected by the foreclosure both, because in fact the mortgagees have accepted the tenancy and because in law they are bound by it. In my judgment, the plaintiffs have no right to redeem and I would dismiss their suit with costs.

31. It is unnecessary on this view to discuss the question of partial redemption, but as the matter is to go to a third Judge, I will give my views briefly for his benefit.

32. Both sides are agreed that the matter is governed by Section 60 of the Transfer of Property Act, and after the decisions of the Privy Council in 57 Cal. 1176 and I.L.R (1942) ALL. 608 at p. 623 it could hardly be contended otherwise. The only question, therefore, is whether the mortgagee can be said to have acquired in part the share of a mortgagor. In view of the foreclosure, I find it difficult to see how it can be contended otherwise, and on principle I can find no prohibition in S. 60 which can preclude a mortgagee from acquiring a share in this way.

33. In I.L.R (1942) Nag. 145 at p. 146 Stone, C.J and I allowed partial redemption after considering at p. 154 whether defendant 15 in that case should be allowed to redeem the whole or only the property in which he was interested. In I.L.R (1942) ALL. 608 the Privy Council held that the integrity of the mortgage is broken under S. 60 when the mortgagee has “purchased or otherwise acquired” as proprietor a portion of the property mortgaged. There can be no question that foreclosure is one of the methods of acquiring title, and as their Lordships made no reservation on the “otherwise acquired”, and as the section itself imposes no limitations, I fail to see how acquisition by foreclosure can be less effective than acquisition by purchase. It is not as if the mortgagee is prohibited from acquiring the rights of a mortgagor against the wishes and behind the backs of other mortgagors. He is allowed to do so by purchase. If by purchase then why not by foreclosure? After all, the only object of the rule is to protect the interests of the mortgagor and mortgagee and prevent multiplicity of suits. As their Lordships observe at p. 621 of I.L.R (1942) ALL. 608 “Circuity of action is thought to be avoided if partial redemption be permitted.”

34. It was argued that the plaintiffs would have been entitled to redeem the whole had they been joined in the mortgage suit and so they are now being deprived of a valuable right. But is that really so? Of course, they could have redeemed the whole in the mortgage suit, but only to protect their interests. That would not have made them owners of the property. They would have been subrogated to the mortgagee's right and in the end would have been entitled to no more than their present rights on receipt of their share of the contribution.

35. Next consider the position of the mortgagee vis a vis the persons he has foreclosed. As against them the decree stands. They cannot get back the property. They cannot redeem again. As between him and them he is the owner:, see 59 Mad. 31211 at p. 333. Say then the plaintiffs here are allowed to redeem the whole. What next? They will be subrogated to the mortgagee's position in the mortgage suit. The owners of the rest of the property will then be allowed to redeem the plaintiffs. But as between the owners and the mortgagee the mortgagee is now the owner. The decree has settled their rights inter se. Therefore, the plaintiffs will be entitled to redeem the shares of the other mortgagees on payment of their share of the debt. What else is that but a splitting up of the mortgage and reaching by that “circuity of action” which S. 60 is designed to obviate the very position for which Ihe section legislates. Sir Dinshah Mulla says as to this in his Transfer of Property Act, Edn. 2, p. 395:

“The part purchased by the mortgagee cannot of course be redeemed. This is either because the mortgage as to that part has been extinguished by merger or because the mortgagee if redeemed would immediately reclaim it.”

36. The learned author is speaking of an acquisition by purchase, but it seems to me that the same result must follow if the foreclosure as against the other mortgagors is binding as between the mortgagee and these mortgagors.

37. If, therefore, the plaintiffs have a right to redeem I am of opinion that it is limited to their interest in the property. They are occupancy tenants. It will, therefore, he necessary first to determine the value of the land as if it had been khudkasht, next to carve out of that the value of the occupancy rights. This latter figure will, in my opinion, be the criterion for determining the price of redemption.

Hemeon, J.:— I agree with my learned brother that the mortgagor has power to lease within the ambit of Section 65-A of the Transfer of Property Act unless that power is expressly abrogated and that the mortgagor's power to lease was not abrogated in the mortgage deed.

38. I am also of the opinion that the lessee of a mortgagor is under Section 91(a) of the Transfer of Property Act, entitled to redeem a mortgage. The authorities ad rem are 19 Mad. 151;12 (1888) 39 Ch. D. 456; 14 N.L.R 117; 19 N.L.R 18; 23 N.L.R 128; 29 N.L.R 77;13 and I.L.R (1939) Bom. 713.14 In I.L.R (1942) Nag. 145 Stone, C.J and my learned brother did not hold to the contrary, although they envisaged a position in which a lessee would not be entitled to redeem. Here too my learned brother has not gone further than that and is of the view that the lessees in question are not entitled to redeem as their interests cannot be jeopardised by the mortgage.

39. While agreeing with him that their interests cannot be so jeopardised in this case, I am unable to hold that this would deprive them of the right of redemption. Section 91(a) of the Transfer of Property Act, clearly confers the right of redemption on any other person than the mortgagee who has an interest in the mortgaged property and there is nothing in that clause to indicate that the right can only be exercised where the interest is likely to be or can be affected by the mortgage. No fetters have been imposed in the clause as it stands on the right of redemption by a person “who has any interest in the property mortgaged” and the words “any interest” are in my view wide enough to cover an interest however exiguous and remote it may be.

40. I also am of the opinion that the right of the plaintiffs is to entire and not to partial redemption. In 68 Bom. 35315 it was held that under Section 91 of the Transfer of Property Act, the smallest interest in the equity of redemption will entitle a person to redeem and it is impossible to hold that he would be entitled to redeem part of the property and not the other part. In 39 ALL. 71916 the view taken in 5 C.W.N 83 was dissented from and it was held that the owner of a portion only of the equity of redemption is competent to maintain a suit for redemption of the entire mortgage even against the will of the mortgagee. It is true that in 28 ALL. 27917 the sons of a purchaser of some sir land were held to be entitled to redeem that portion of the mortgaged property in which their father had acquired an interest and not to redeem the whole mortgage, but this view, as Chitaley remarks at page 1065 of Vol. 2, Edn. 2, of his “The Transfer of Property Act”, cannot be considered to be good law in face of the decision of their Lordships of the Judicial Committee of the Privy Council in 16 N.L.R 154.

41. That was a case in which L mortgaged several fields to in and subsequently sold one of them to T.M filed a suit on his mortgage for foreclosure without impleading T, obtained a decree and in execution thereof went into possession of 9 of the fields including that sold to T. T's suit for redemption of the entire mortgage succeeded in appeal and their Lordships in dismissing M's appeal observed:

“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 corelatively 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 mortgage 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.”

42. Their Lordships further observed that the concluding part of Section 60 of the Transfer of Property Act, 1882, did no more than declare applicable what was just the law as established in England.

43. My learned brother has made the cogent point that as the last part of Section 60 of the Transfer of Property Act, placed no restriction on the mortgagee's power of acquisition, acquisition by foreclosure was included and such acquisition broke the integrity of the mortgage. The Privy Council case to which I have referred was, however, one in which a mortgagee had secured a foreclosure decree against a mortgagor and had, after it had been made final, gone into possession. This would necessarily seem to imply that their Lordships considered that acquisition in that manner was not contemplated by the last part of Section 60 of the Transfer of Property Act. In I.L.R (1942) ALL. 608 it was no doubt laid down that the integrity of a mortgage is not broken except when the mortgagee has purchased or otherwise acquired as proprietor a certain portion of the property mortgaged, but the decision in that case rested on the fact that no part of the mortgaged property had been acquired by the mortgagees or their successors and it was not held that the words “acquired as proprietor” included acquisition by foreclosure. I am aware that Stone, C.J and my learned brother allowed partial redemption in I.L.R (1942) Nag. 145 cit. sup. but that case is distinguishable on the facts from the case now before us and the ratio decidendi was limited to the facts which surrounded it.

44. By the Court.— [45] In view of the difference of opinion between us we formulate the following points for the opinion of a third Judge:

(1) Is a mortgagor's lessee whose interests cannot be or are not likely to be jeopardised by the mortgage entitled to redeem the mortgage under Section 91(a) of the Transfer of Property Act, 1882 (4[iv] of 1882)?

(2) If yes, is he entitled to redeem the mortgage in full or in part?

45. The papers will be placed before the Honourable the Chief Justice under High Court Rule 11.

Hidayatullah, J.:— Two questions have been referred to me for my opinion. They are:

1. Is a mortgagor's lessee whose interests cannot be or are not likely to be jeopardised by the mortgage entitled to redeem the mortgage under Section 91(a) of the Transfer of Property Act, 1882 (IV of 1882)? and 2. If yes, is he entitled to redeem the mortgage in full or part?

46. The first question really involves two questions because it covers the cases of lessees whose leases are indefeasible and lessees who are not so fortunately placed. My learned brothers Bose, J. and Hemeon, J. are in agreement that the leases in this case are binding upon the mortgagee and he cannot evict the lessees except in accordance with law. I, therefore, start with the assumption that the lessees in this case possess indefeasible rights and that unless they are guilty of an infringement of the Tenancy laws of this Province their rights, created by the mortgagor under statutory powers given by Section 65-A of the Transfer of Property Act, cannot be terminated by the mortgagee. This case properly falls, therefore, in the first part of the first question and there is no need to answer the second part. Besides the words ‘are not likely to’ presuppose a variety of circumstances which it is not possible either to visualise or to comprehend in the opinion which I am about to deliver. Hence I confine myself to those cases where the lease is binding upon the mortgagee.

47. There is no doubt that the mortgagee is not bound by the action of the mortgagor subsequent to the mortgage unless the mortgagee either consents to such action or is bound by an express provision in the mortgage bond or by some statute. This is true not only of leases but also of other transfers. Thus in general a lease which comes into existence after the date of the mortgage does not bind the mortgagee, in the absence of a contract to the contrary, unless the same can be said to fall within Section 65-A or may be justified under Section 66 of the Transfer of Property Act. The application of Section 66 of the Transfer of Property Act is itself open to some doubt.

48. Before considering the broad question whether a lessee is interested in the property mortgaged or in the right of redemption it is necessary to examine the English law and some English cases which have largely influenced decisions in India on which my learned brother Hemeon, J. has relied. Chief among these English cases are (1778) 1 Doug. 21,18 (1870) 5 Ch. 22719 and (1888) 39 Ch. D. 456.

49. My learned brother Bose, J. has pointed out in his lucid opinion that their Lordships of the Privy Council have deprecated the application of English cases to Indian conditions and I agree with him that the matter must finally turn upon a true interpretation of the Indian Statute. At the same time it must not be forgotten that the Indian Statute was drafted in England and the English law must have considerably influenced the formulation of some of the principles incorporated in the Indian Statute. So long as the necessity of expounding the words of the Indian Statute is kept in mind there can be no harm in examining the English decisions.

50. All the three English cases cited by me above were prior to the passing of the Conveyancing and Law of Property Act, 1881 (44 and 45 Vict., C. 41) which came into force on 1-1-1882. According to English law prior to the Property Act of 1925, the mortgage of any property vested the legal estate in the mortgagee leaving what has been vulgarly called the equity of redemption in the mortgagor. Since at law, this did not amount to an estate the holder of the equity could not create a term of years effecting the legal estate vested in the mortgagee. Though leases granted by the mortgagor before the mortgage were held valid against the mortgagee, the mortgagee, being entitled only to a reversion on the expiry of the term, the same result did not obtain after the creation of the mortgage. The common law rule, therefore, was that neither the mortgagor nor the mortgagee acting alone could give a valid lease. If made by the mortgagor alone the mortgagee could evict the lessee as a trespasser (1778) 1 Doug. 21, (1803) 3 East 449,20 and if the mortgagee alone created the lease, the lease was bad against the holder of the equity of redemption who could by redeeming the property avoid the lease. (1864) 33 Beav. 560.21 It was, therefore, necessary to make the two agree. A joint lease operated as a lease by the mortgagee and an equitable affirmation by the mortgagor who was regarded as a stranger to the estate. It was usual, however, to provide for powers of leasing in favour of one or the other or both in the deeds of mortgages. If the mortgage bond made such a special reservation, a valid and binding lease could be granted by the person possessing that right. Cases, therefore, of lessees coming forward to redeem must necessarily have been few because no person would have taken a lease which was defeasible at the instance of the mortgagee. If the mortgagor, while in possession of the property, granted a lease without the concurrence of the mortgagee, the latter could adopt the lease; and by accepting the lessee as a tenant, the mortgagee made him a tenant from year to year and not for a term of years. This he would usually do if the lease was at a rack-rent but if the lease was beneficial the mortgagee could turn the lessee out. If the mortgagee did not concur then till he gave notice, the lease operated between the mortgagor and the lessee by way of estoppel and the mortgagor could claim rent and even distrain for it but only on an implied authority from the mortgagee though after the Judicature Act, 1873, he could bring a suit in his own name.

51. In view of this summary of the common law, the three cases which were referred to earlier, fall properly in their places. In (1778) 1 Doug. 21, Lord Mansfield said:

“No case has been cited, where this question has been agitated, much less decided. The only case at all like the present, is one that was tried before me on the home circuit (Belchier v. Collins); but, there, the mortgagee was privy to the lease, and, afterwards by a knavish trick, wanted to turn the tenant out. I do not wonder that such a case has not occurred before. Where the lease is not a beneficial lease, it is for the interest of the mortgagee to continue the tenant; and where it is, the tenant may put himself in the place of the mortgagor, and either redeem himself, or get a friend to do it.”

52. The lessee who was granted a lease by the mortgagor only, was deemed in law as a sharer of the equity of redemption inasmuch as (subject to the rights of the mortgagee) the mortgagor was bound to allow the lessee the use of his full term of years. This dictum of Lord Mansfield was cited with approval by Kekewich, J. and later in the same case, by the Court of appeal in (1888) 39 Ch. D. 456, in spite of the argument of Barber Q.C that Lord Mansfield was not very conversant with equity jurisprudence. In (1888) 39 Ch. D. 456 Kekewich, J. considered (though grudgingly for reasons well-known) a statement in the argument of Mr. Jessel (later Sir George Jessel) in (1870) 5 Ch. 227 and adopted by Lord Heatherley with a slight modification in the case. The words of Mr. Jessel were “any person who is entitled to an interest in any part of the land” may redeem. In explaining these words Kekewich, J. said:

“To my mind it is by no means the worst or the least important part of the statement that the word ‘any’ is repeated twice. Mr. Deane pointed out that the words are ‘in any part of the land’ but the real point is that however small the interest is he is entitled to redeem, and in that sense Lord Heatherley accepts it when he says that ‘any person interested in the equity of redemption is entitled to redeem.’”

53. It was not a small difference that Lord Heatherley made. All reference to interest in the land was dropped and this betokened as closer appreciation of the nature of a mortgagor's right in those days and consequently the nature of the interest possessed by the lessee. The mortgagor could not demise the land or any interest in it without the concurrence of the mortgagee and all that he could transfer was a portion of or an interest in the equity of redemption. Kekewich, J. applied the principle not only to a permanent tenant but also to a tenant for years. Kekewich, J.'s decision was upheld in the Court of Appeal by Cotton, Fry and Lopes LLJ. see, (1888) 39 Ch. D. 456. This was a case of an agreement for a lease which the mortgagor made without the consent of the mortgagee. The mortgagee refused to confirm the agreement for lease and it was held that the agreement being a valid demise of the equity of redemption, the lessee could redeem the mortgage.

54. All this was prior to the Conveyancing and Law of Property Act of 1881. This is indeed obvious from the headnote of the case in (1888) 39 Ch. D. 456 and the facts given therein. After the Conveyancing and Law of Property Act of 1881, the power to create leases unilaterally was granted by section 18 to the mortgagor and mortgagee in possession. The result of S. 18 is best stated in the words of Ashburner on Mortgages, p. 228 (Indian Edn., 1912):

“The Conveyancing Act, 1881, S. 18, gives a mortgagor of land while in possession power, as against every incumbrancer, to make, from time to time, an agricultural or occupation lease for any term not exceeding twenty-one years, and a building lease for any term not exceeding ninety-nine years of the mortgaged land, or any part thereof.

This power may be excluded or restricted by the mortgage deed or by a written contract; it may be extended by the mortgage deed; and it applies only in case of a mortgage made after 31-12-1881; but it may be applied by agreement to mortgages made before that date.

A lease by a mortgagor under this section has the same effect as if the mortgagee had joined in it.”

55. There is no doubt that the Conveyancing and Law of Property Act, 1881, gave to the mortgagor something which he did not possess. It enabled him to bind the estate of the mortgagee by a unilateral act. This legal position was discussed in three cases viz., (1889) 22 Q.B.D 70;22 (1906) 1 K.B 12523 and (1891) 3 Ch. 522.24 It is necessary to mention only the first two here. In the first case the effect of S. 18 was discussed and to quote the words of Fry L.J:—

“The statute in fact gives the mortgagor power to create a term out of the estate of the mortgagee, and so to convert that estate into one expectant on the term granted by the lease.”

56. This dictum of Fry L.J (and this is also the view of Lord Esher M.R and Lopes L.J) was further explained and applied in the second case by Warrington, J. in the following words:

“Now what is the effect of Section 18, sub-Section (1) of the Conveyancing Act, 1881, construing it by itself and applying to it certain well-known principles of law relating to the subject-matter with which it deals? After the execution of a mortgage a mortgagor, as is well-known, had no estate in the land, only a right to redeem it, called an equity of redemption, the legal estate being vested in the mortgagee. Before the Conveyancing Act, 1881, the mortgagor after the execution of the mortgage had no power to grant a lease, that is to say, he had no power to carve out of the estate of his mortgagee a lease for a term of years or any other estate. If he executed a lease it operated only by way of estoppel as between himself and his lessee, and the mortgagee might at any time repudiate it, or he might elect to be bound by it, but apart from that the lease had no effect as against him. Now in this state of things, what is the meaning S. 18, sub-s. (1), which says, the mortgagor when in possession shall have power to make a lease? In my opinion the effect of this is to give the mortgagor something that he had not before, that is, a power to carve out of the estate of the mortgagee a term of years which he can grant to his lessee; or, in other words, to make the fee simple which is at the time vested in the mortgagee, a reversion expectant on the determination of the term of years just created by the lease. This, in my opinion, and independently of authority, is the true view to be taken of the effect of this section; and that is the view which I should take. But I think there is authority directly relevant to the point I have to decide, that is the case in (1889) 22 Q.B.D 70. The facts of that case are entirely different from the facts of this case, but in the course of their judgments it was necessary for the members of the Appeal Court to express their opinion as to the legal effect of S. 18, sub-s. (1). I prefer to take what was said by Fry L.J on this point, not because the result of what he says is not also contained in the judgments of the other members of the Court, but because he seems to me to put the case in language which is most useful for my purpose. At p. 72 Fry L.J says: “The question turns on the Conveyancing Act, 1881, and the effect of section 18 is that Davis, while in possession as mortgagor, had power to make this lease and to bind the plaintiffs. The statute in fact gives the mortgagor power to create a term out of the estate of the mortgagee, and so to convert that estate into one expectant on the term granted by the lease. That would seem to shew that it was intended that the mortgagee should have the rights of a lessor under the lease. If this were not so it would follow that the mortgagee's estate would be diminished and he be turned into a reversioner, but without any compensating rights. I find, however, in the same section evidence confirmatory of the conclusion I have arrived at, for by sub-S. (11) it appears that the mortgagor is to deliver to the mortgagee a counterpart of the lease, which would be useless unless the latter has some rights under it.”

57. This summarises the law on the subject and it is interesting to note that the point involved in this case was whether a mortgagor in possession who had granted a lease under the statutory power conferred by Section 18 of the Conveyancing and Law of Property Act, 1881, had power also to accept a surrender of such lease without the concurrence of the mortgagee. This point was answered in the negative. But, in 1911, a statute was passed which gave this express power. The passing of the law of Property Act 1925 made radical changes in the Law relating to mortgages. This main difference is that a mortgagor, under the old law, creating a legal mortgage conditionally assured to the mortgagee, his general property in the real estate but now he does so for a term of years. But the resulting position is not different so far as the statutory powers are concerned. Section 99 of the Act, re-enacts Section 18 of the Conveyancing and Law of Property Act, 1881.

58. The common law right of a mortgagor to give a lease is still there and even if there be an express provision in the mortgage bond, this power can be exercised by the mortgagor subject, of course, to the mortgagee refusing to recognise the lease thus created. Recently in (1937) 1 ALL E.R 48125 Farwell, J. restated the English law on the subject in the following words:

“In order to determine this question, I think it is necessary to consider quite briefly the position between mortgagors and mortgagees before either the Act of 1925 or the earlier Act of 1881. Under the law as it was before the Act of 1881 came into existence, the position was that, where there was a legal mortgage, the mortgagor, although in possession, had no power to grant a lease which could be binding on the mortgagee. Any lease be might attempt to grant to some third party would be in no way binding on the mortgagee, and as between the lessee and the mortgagee would create no estate or interest other than that which I will mention in a moment. So far as the mortgagor was concerned, it would be binding upon him, and against the lessee he would be estopped from denying the existence of the lease or that he had granted it. Except against the mortgagee or against any person having a title paramount to the mortgagee, such a lease would be good and the lessee would be entitled to the benefit conferred thereby; but as against the mortgagee the lessee would have no estate or interest under the lease except that he had a right to redeem in the event of the mortgagee taking steps to evict him from possession or the property. That position was altered by the Conveyancing Act of 1881, because by that Act express power was given to the mortgagor in possession to grant leases on certain terms and subject to certain conditions. In my judgment, the effect of that statutory power would enable the mortgagor for the first time to do something which hitherto it had not been possible for him to do, namely, to grant a lease during the continuance of the charge which would be binding on the mortgagee. The fact that power was given to the mortgagor does not, and did not, in my judgment, deprive the mortgagor of the right which he had apart from the Act altogether, namely, to grant a lease to a third party without the consent of the mortgagee which would not be binding on the mortgagee, but would be binding as between the lessor and the lessee. I cannot find that the power which the mortgagor had in that regard was taken away by the Act. What the Conveyancing Act, 1881, did was to make the position one which is perhaps more satisfactory as between the mortgagor and mortgagee by enabling the mortgagor, subject to the conditions and provisions of the Act itself, to grant a lease which was binding on the mortgagee. That, in my judgment, was the position, at any rate, up to the coming into force of the Law of Property Act, 1925. The right in a tenant who was in under a lease granted by the mortgagor, which was not binding on the mortgagee to redeem, was in existence until 1925, and it existed by reason of the fact that the power of the mortgagor to grant such a lease was not affected by the Act of 1881. Then the question arose: Did the Act of 1925 alter the position prior to the passing of that Act in this respect?”

59. It is not necessary to quote further from the report. It is sufficient to say that Farwell, J. answered the question in the negative.

60. I have discussed the English law at some length but in my opinion it was absolutely necessary because the Indian decisions which have allowed redemption rely on (1888) 39 Ch. D. 456 without making any attempt to find out the reasons for that decision. My learned brother Bose, J. refrained from discussing this subject but in my opinion (and I say it respectfully) he reached the correct conclusion that (1888) 39 Ch. D. 456 was decided as it was, because the mortgagee was likely to evict the lessee or refuse to consent to the agreement to lease. There does not appear to be any case in which the lessee has either claimed or has been allowed redemption when the lease itself was binding on the mortgagee. The effect of such a lease is either to carve out an estate from that which belongs to the mortgagee or to superimpose the lease upon his rights. The interest which entitles a lessee to claim redemption must be an interest which he holds perilously. Before I pass on to a discussion of the Indian Law, I must point out that this qualification has been well recognised in England. In Jones on Mortgages (vol. II, Sixth Edn paragraph 1055) the learned author, relying on English decisions says:

“It is not necessary that he should be interested in the whole of; the mortgaged premises; if he own the equity of redemption of a portion of them only, he may redeem the entire premises. Neither is it necessary to entitle one to redeem that he should have an interest in fee in the premises; the right may be exercised by a tenant for years. In general any one who has an interest in the land, and would be a loser by a foreclosure, is entitled to redeem.” (The underlining (here italicized) is mine.)

61. A qualification that the person must be a loser before he is entitled to redeem excludes those lessees whose leases are binding on the mortgagee either because he has consented to the lease or such consent is unnecessary by reason of some statute. Robbins in his Law of Mortgages states the true position admirably where he says:

“So it has been held that a tenant for years in occupation under an agreement for a lease made prior to 1882 by a mortgagor without the consent of his mortgagee was entitled to redeem, the mortgagee having refused to adopt the agreement.”

62. This in my opinion summaries the distinction between leases which are binding on the mortgagee and leases which are not so binding. To the same effect is the observation of Shell in his Equity (22nd Edn p. 822) that among persons entitled to redeem is:

“A subsequent purchaser or lessee including lessees whose leases are bad as against the mortgages.” (The underlining (here italicized) is mine).

63. In my opinion Snell has stated the law somewhat widely. Similarly, Strahan in his Law of Mortgages (2nd Edn. P. 138) speaking of parties to an action for redemption says that among persons who can bring such action—

“Is the lessee of the mortgagor where the lease was made after the mortgage and is not binding on the mortgagee.” (The underlining (here italicized) is mine).

64. My learned brother Bose, J. has already quoted Halsbury's Laws of England Vols. 23 page 302. In my opinion (1888) 39 Ch. D. 456 did not decide that any lessee had a right of redemption and looking to the English Law of Mortgages the decision could not lay down any such wide proposition.

65. Now in India a similar view was expressed in 5 C.W.N 83 by Rampini and Sale, JJ. in the following words:

“The learned pleader for the respondent cites sub-S. (a) of Section 91 of the Transfer of Property Act, in which it is said that ‘any person (other than the mortgagee of the interest sought to be redeemed) having any interest in or charge upon the property, can redeem.’ But we think that this must mean any person having an interest in or charge upon the property which is affected by the mortgage.”

66. Their Lordships, thereafter, went on to consider whether a raiyat interest was such an interest and held that it was not. Relying on this dictum in 5 C.W.N 83 Sir Rashbehari Ghose in his learned treatise on the Law of Mortgages states (vol I, 5th Edn p.’ 255):

“But the interest which entitles a person to redeem must be deprived directly or indirectly from the mortgagor since the making of the mortgage. In other words, a person may redeem only if he is affected by the mortgage; if he is not affected by it, there is no occasion for his redeeming and he is not permitted to do so.”

67. The Law in India is contained in Section 91 of the Transfer of Property Act. Clause (a) of that section says that among other persons the right to redeem belongs to:

“Any person (other than the mortgagee of the interest sought to be redeemed) who has any interest in or charge upon, the property mortgaged or in or upon the right to redeem the same.”

68. Formerly this clause was split into two parts. This was criticized by text-book writers (see e.g, Macpherson on the Law of Mortgages p. 700, 7th Edn.) and by an amendment the two clauses were combined together into one. The amendment has not changed the law and the position is still the same that before a person can come forward and say that he has a right to redeem, he must make out a case that he has an interest in the property or the right to redeem.

69. I propose now to deal with those Indian eases in which the right of redemption is allowed. These cases must necessarily be divided up into two classes, the first class dealing with leases prior to the enactment of S. 65A and the second class with those that came after. The first case is 19 Mad. 151 in which Shepherd and Best, JJ. following (1888) 39 Ch. D. 456 held that the word ‘interest’ was not necessarily confined to the right of ownership but must be taken to be sufficiently wide to include any minor interest such as that of a tenant. It was held that a varumpattam tenant in Malabar claiming under a lease executed by the ottidar was entitled to redeem the prior kanom. This case clearly was prior to the enactment of Section 65-A of the Transfer of Property Act and only follows (1888) 39 Ch. D. 456.

70. A similar view was expressed in 12 Luck. 16126 but there again the lease was prior to the enactment of S. 65A and Ziaul Hasan, J. held that though qua lessee the respondent was a person interested within the meaning of Section 91 of the Transfer of Property Act, it was necessary to see if the lease could be enforced against the mortgagee. The case does not discuss the matter at all but merely follows a ruling of this Court reported in 23 N.L.R 128. In 29 ALL. 67927 a perpetual tenant was entitled to redeem. In I.L.R (1939) Bom. 713 Lokur, J. following (1888) 39 Ch. D. 456. held that a lessee was entitled to redeem. In the same case the learned Judge said that a tenant-at-will and a tenant on sufferance are not entitled to redeem. The case in 5 C.W.N 83 was distinguished on the ground that the nature of the tenancies in those cases was not known. In 23 Pat. 64828 Chatterji and Reuben, JJ. held that a lessee is always entitled to redeem the mortgage as a person interested. In A.I.R 1925 Oudh 27029 redemption was not allowed when the lease was binding upon the mortgagee. The extreme view on the side of redemption is expressed in 40 C.W.N 5730 where a person whose lease was void was allowed to redeem but (I say it with due respect) it is difficult to see how such a lease could confer any right at all. See in this connection A.I.R 1940 Mad. 669.31

71. In this Court conflicting opinions have been expressed. In 4 N.L.R 932 Stanyon Second A.J.C said:

“In the first place it is manifest, though the wording of Section 91, clause (a) of the Transfer of Property Act, is very general, that redemption can only be claimed by a person whose interest has been mortgaged by a mortgagor authorised to impose the mortgage upon it. Every other clause of S. 91, except cl. (a), contemplates an interest arising in one way or another out of the mortgagor himself. Redemption is primarily an incident of the contract of mortgage, and as such the right to it can only exist in such persons as are reached and bound by the contract.”

72. After giving examples the learned Judge said:

“Therefore I think that no person who is not affected by the contract of mortgage can sue to redeem such mortgage. If he has any interest in the property covered by the mortgage, his suit would be one, not to enforce but to avoid the contract.”

73. In 14 N.L.R 117 to which Bose and Hemeon, JJ. refer, Mitra A.J.C held the same view as in 5 C.W.N 83 and in 23 N.L.R 128 Kinkhede, A.J.C also expressed himself in a similar strain though he allowed redemption on the facts of the case. In I.L.R (1942) Nag. 1452 at p. 155 doubts were expressed by Bose, J. which he has now stated in his opinion in this case.

74. Now there is a difference of vital nature between an English mortgage and a simple mortgage. This difference was pointed out by Sir Lawrence Jenkins in 20 C.W.N 35033 but the question that arises here is whether this difference is vital to matter under discussion. If a mortgagor, after his mortgage, grants a lease which is to endure beyond the date of repayment of the loan, the mortgagee is not bound by the lease. This is clearly the result of Section 48 of the Transfer of Property Act. The older view that S. 66 of the Act allowed such leases is open to much doubt. Where the lessee is liable to eviction he is interested at least in the equity of redemption for whatever interest is held by him is derived only from the mortgagor and to the extent that his rights subsist they are a part of the right of redemption. Is he interested in this right when his lease is binding upon the mortgagee? My answer is that the law in India is not different from the law in England on this point in spite of the differences in the law of mortgages in the two countries. The position of a lessee in such circumstances is the same and the lessee enjoys the right of redemption vis-a-vis the mortgagee to the same extent as in England, and the observation of Sir Rashbehari Ghose on this subject referred to above lay down a correct proposition of law.

75. My learned brother Bose 3, has indicated the reasons for holding that the word ‘interest’ in S. 91 conveys something more than a mere ‘interest’ in the popular sense. While it is true that the words ‘any interest’ are of such generality that any interest however small is comprehended, the interest that enables a person to claim redemption must be an interest in ‘the property mortgaged’ or the ‘right of redemption.’ I do not consider that the matter is to be judged by referring to O. 34, R. of the CPC. That provision is merely procedural and does not create substantive rights. In my opinion, the matter is to be determined on a true construction of Section 91(a) of the Transfer of Property Act. As pointed out in Chitaley's Transfer of Property Act p. 1372, the two phrases in S. 91(a) refer to different stages. The words ‘property mortgaged’ indicate the rights existing prior to the mortgage and the words, “the right to redeem” indicate the rights left in the mortgagor subsequent to the mortgage. The passage in Chitaley can be quoted with advantage here:

“The ‘property mortgaged’ is not the same thing as “the right to redeem the same.” The former has reference to a state before the mortgage was executed and comprises the entire interest of the mortgagor which was offered as security under the mortgage. The latter has reference to a stage after the mortgage is executed and comprises the mortgagor's interest which remains after deducting the mortgagee-interest.”

76. The case of a lessee whose lease comes into being after the mortgage is not one governed by the first phrase at all and one naturally recalls the words of Mr. Jessel during the course of arguments in (1870) 5 Ch. 227 quoted by me in an earlier portion of this opinion. If the case of a lessee falls within the second part of S. 91(a), it is easy to see that by virtue of S. 65-A his lease gets superimposed “upon the rights of the mortgagee and he is not, therefore, interested in the right of redemption.”

77. My brother Bose, J. has referred to other clauses of S. 91 as illustrations of the fact that some interests have been deliberately left out. He particularly refers to the interest of a judgment-creditor who till 1929 was entitled to redeem. I do not enter into this subject which in England necessitated the passing of the Judge ments Act 1864 (27 and 28 Vict., C. 112). Since then a judgment-creditor of the mortgagor is not allowed to redeem unless execution has actually issued and the judgment has been registered. I do not also think that the opinion of Sir Rashbehari Ghose or the decisions reported in 5 C.W.N 83 or 14 N.L.R 117 must be deemed to have been expressly approved by legislature. In my opinion the decision in this case can be rested on well recognised principles both in England and here. I, therefore, agree respectfully with the conclusion reached by my learned brother Bose, J. on the first question.

78. In view of what I have held in answer to the first question it is really not necessary to answer the? second question. However, as the matter is of frequent occurrence in various con-texts, I answer that question also.

79. This question depends upon a true interpretation of Section 60 of the Transfer of Property Act particularly para. 6. It is elementaty that a mortgage must be redeemed in its entirety and a mortgagor is not permitted to redeem the mortgage property piecemeal even where the mortgaged property consists of several parcels of property or there are more than one mortgagor. The reason for this is stated by their Lordships of the Privy Council in 12 Cal. 414.34 Para. 5 of S. 60, however, lays down that where the mortgagee acquires a portion of the mortgaged property any person who owns a share in the right of redemption is entitled to redeem his share on payment of a proportionate part of the amount remaining due on the mortgage. The integrity of the mortgage is broken by the act of the mortgagee and he cannot thereafter object to a piecemeal redemption. Prior to the amendment of the Code of Civil Procedure, the matter was complicated inasmuch as the mortgagor was required to bring into Court the amount due on his mortgage before claiming redemption but now the law allows an account to be made and the payment to be tendered afterwards. There is no difference, therefore, between the law on the subject in England and the law as laid down in S. 60. This was held by their Lordships of the Privy Council in 16 N.L.R 154. The words “has or have acquired” in para. 5 of S. 60 have not been defined and in principle I do not see any difference between an acquisition by way of purchase or other transfer and an acquisition by way of foreclosure decree. All that para. 5 contemplates is that the acquisition in whatever form it may be, must be of a portion of the mortgaged property. Where, there, fore, a mortgagee sues only some of the persons interested in the right of redemption and leaves out others whose share in the equity of redemption is not represented in the suit he must be deemed to have acquired by foreclosure only a portion of the mortgaged property. That the rights of these mortgagors disappear for ever cannot be gainsaid and my learned brother Bose, J. has given adequate reasons for holding that foreclosure is one of the means of acquiring the interest in the mortgaged property. I concur with him on this point. That being so, para. 5 of S. 60 is attracted.

80. What then is a right of a person whose interest in the equity of redemption has not been foreclosed? Where the mortgagee acquires a portion of the mortgaged property the mortgage in respect of that portion is extinguished and all that remains to redeem is the mortgage on the rest of the property. A person who holds an interest in this remaining portion has a right of redemption. Is he entitled to redeem the whole of the rest of the property or is he compelled to do so? In either case, the right of the opposite party has to be taken into consideration. The mortgagee may claim that the remaining mortgage must be redeemed in its entirety and the mortgagor may insist upon a partial redemption of his own share. In this clash of interests, we have to turn to the statute and we find that there is nothing in the statute which compels the mortgagor to redeem the whole of this property. The words of para. 5 merely entitled the mortgagor to redeem his share of the mortgaged property. This right, it is obvious, can be exercised without his being compelled to redeem the entire remaining property. In his suit for redemption, the mortgagor may offer to redeem the entire property or he may ask for a redemption only of his own share. In the latter case he must join all the other mortgagors so that accounts can be taken and the suit made into one for redemption and contribution. Conversely the mortgagee cannot compel the mortgagor to redeem the entire property because if that were so, S. 60 para-graph 5 would be rendered nugatory. This, as I read it, is the gist of the decision of their Lordships of the Privy Council in 13 M.I.A 40435 at pp. 415, 416. The passage reads as follows:

“The appellant now complains that the plaintiffs have been allowed to redeem as against him the villages other than their own village of Hosseinpore, i.e, to put themselves in his shoes as mortgagee in respect of these villages; and further, that the decree was wrong in refusing to treat him as the owner under a subsequent purchase of three-fourths of Rookunpore.

The first objection does not come with a good grace from the appellant, who defeated the plaintiffs' former suit on the ground that they had not offered to redeem the villages in question, and who in this very suit has included in his calculation of the amount which, as he alleged, ought to have been brought into Courts the shares of the mortgage debt which he said were chargeable on those villages. The Courts below, however, seem to their Lordships to have mistaken the effect of the former decision of the Sudder Court. It merely ruled that the plaintiffs were bound to offer to redeem the villages in question, it did not rule that they were entitled to do so, or to acquire the interest of the mortgagee in them against his will. It is unnecessary to determine in this suit, whether in the peculiar circumstances of this case the former proposition is correct. Their Lordships are of opinion, that the latter cannot be supported. They think that appellant, if desirous of retaining possession of these villages as mortgagee, is entitled to do so against the plaintiffs, whose right in that case is limited to the redemption and recovery of their village of Hosseinpore, upon payment of so much of the sum deposited in Court as represents the portion of the mortgaged debt chargeable on that Village.”

81. My learned brother Hemeon, J. relies up on two cases of the Privy Council, namely, 16 N.L.R 154 and I.L.R (1942) All. 608, for a pro-position that a foreclosure is not one of the means of acquiring mortgaged property and further that the mortgagor who has been left out must redeem the entire mortgaged property. There is an apparent conflict between 13 M.I.A 404, and 16 N.L.R 154 and Mulla is of opinion that the former case is practically overruled by the latter. In the latter case their Lordships said:

“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 respondent, 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 corelatively 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 has happened which extinguished the mortgage in the 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.”

82. Beading the two cases together, I am of opinion, that the mortgagor may offer to redeem the entire remaining mortgage property or alternatively his own portion. He must, however, join all the remaining interests so that an account may be taken and the mortgagee may not be exposed to a large number of suits. This is what has been laid down in 13 M.I.A 404. It is to be noticed that this case was considered again in 12 Cal. 414. but was not doubted by their Lordships.

83. The later case in 16 N.L.R 154 did not specifically consider whether a foreclosure decree is not the means of acquiring mortgaged property because their Lordships of the Privy Council held that para. 5 of Section 60 of the Transfer of Property Act, was not applicable to the facts of the case not because the acquisition was by way of a mortgage but because Section 60 of the Transfer of Property Act, did not apply to Berar at the time the foreclosure decree was made in 1900. Their observations on this point are as follows:

“It need only be added on this point that the right to redeem in the present case is not affected, as was suggested by the concluding part of Section 60 of the Transfer of Property Act, 1882, which is as follows:

(Here their Lordships quoted para. 5 of S. 60 of the Act).

This did not apply to Berar at the time the foreclosure decree was made in 1900, and moreover if it had applied, it would have done no more than declare applicable what is just the law as established in England.”

84. Mr. Chitaley in his Transfer of Property Act vol. 2, p. 1065, says that “the contrary view expressed in 28 ALL. 279 cannot be considered to be good law.” My learned brother Hemeon, J. has referred to this foot-note in 4 Para, of his opinion. With all due respect I must say that the question of a foreclosure was not considered. The point urged in the case was that one of several mortgagors cannot redeem more than his share unless the owners of other shares consent or did not object. This their Lordships declare was not the law in India. Such an owner can redeem the entire mortgage subsisting on that date provided the rights of other owners of the right of redemption are safeguarded. Their Lordships' last observation towards the end of their Lordships' judgment which I have quoted elsewhere merely goes to show that para. 5 of Section 60 of the Transfer of Property Act (which does no more than declare applicable what is just the law applicable in England) does not limit the rights of redemption of one of several mortgagors to his own share. What he is entitled to do is indicated in 13 M.I.A 404 which in my humble opinion has not been affected by the later decision.

85. Answered accordingly.