[566] Spankie, J.:— The judgment of the lower appellate Court appears, I think, open to the objection taken. The pleader for the appellants refers to a decision of the Privy Council which, however, he did not cite in support of his arguments. The precedent of the Court, Mahtab Singh v. Misree Lal (1), to which we were referred, does not affect the case before us in any direct way. I was at first disposed to consider that the decision in Nawab Azimut Ali Khan v. Jowahir Singh (2) was one which applied injuriously to the appellant's case. But on looking into the case, in which I was a party to the judgment, I find that the decision of the Judicial Committee of the Privy Council overruled the latter part of the judgment. It further appears that the decision of the Privy Council to which appellants refer is that in the case of Nawab Azimut Ali Khan v. Jowahir Singh (3) which is the very case to which I have alluded above.
I gather from the judgment of the Privy Council on the point now at issue that in respect to shares in which a mortgagee under a joint mortgage has not himself bought the equity of redemption, he retains his character as mortgagee, though he has purchased the equity of redemption in other shares. Thus the plaintiff here, who has become the representative of a mortgagor of a particular share, is entitled to redeem his own particular share in the joint mortgage, of which the joint character has been broken up, but he [567] cannot redeem, against the will of the mortgagee, the share of Badipan, another shareholder. I would therefore decree the appeal and reverse the decision of the lower appellate Court in so far as it relates to the share of Badipah, and I would modify the decree accordingly with costs in proportion to decree and dismissal.
Oldfield, J.:— I concur in the order proposed by Mr. Justice Spankie. The right of one mortgagor to redeem the whole mortgage rests on the joint character of the mortgage, and when that has been broken, the right ceases, and he cannot redeem more than his share against the will of the mortgagee.