AYYAN GOVINDAN Vs. AYYAN KUNJAN

JUDGEMENT

(1.) The suit property which is the subject of the mortgage in suit is the western half of a property, 1 acre and 3 cents in extent. The mortgage was by Kali Aiyan and Chadayan Kunjan, being Ext. G of the year 1093; it was followed by a purakadom by Chadayan Kunjan, being Ext. E of the year 1096. The right under Exts. C and E became vested in one Velu by assignment Ext. I. Velu leased the property to one Kochuraman and afterwards by Ext. A to the first plaintiff with direction to redeem Kochuraman. Kochuraman was redeemed. Velu transferred his mortgage right in the property to the defendant who filed a suit O. S. 569 of 1952 against the first plaintiff for recovery of possession and obtained a decree. That decree was not executed. The four plaintiffs who are the children of Kali Aiyan have instituted the suit out of which this second appeal arises, for redemption of Exts. C and E on payment of the amount due to the defendant. The defendant pleaded that there was a partition between Kali Aiyan's heirs and Chadayan Kunjan under which the mortgaged property fell wholly to the share of the latter, and that therefore the plaintiffs have no right to redeem. The Subordinate Judge has found against the partition so pleaded and has also found that one half of the property belonged to Kali Aiyan in these words:

(2.) As I understand the judgment of the Subordinate Judge, his view seems to be. that without the heirs of the other comortgagor on record no decree for redemption could be passed. Under S.91 of the Transfer of Property Act, a comortgagor is a person entitled to redeem the mortgage, but it is also prescribed by O.34 R.1, C. P. C. that all persons having an interest either in the mortgage security or in the right of redemption shall be joined as parties to any suit relating to the mortgage. In this view, the other comortgagor also is a necessary party to the suit. But the question to determine is whether in his absence, a decree could not be granted to the comortgagor who sues for redemption. In this case learned counsel for the plaintiffs have also taken the point, that the objection as to non joinder is not now open to the defendant, not having set up the objection at an early stage as laid down by O.1 R.9, C. P. C., his case being only that the plaintiffs have no right to redeem. However that be, it has been held in Bansidhar Pandey v. Masudan Singh (AIR 1962 Patna 191), that the true test for deciding the point is, whether the rights of the parties on the record can be fully determined in the absence of the other comortgagor and whether that determination can be made so as not to affect the rights of the absent party. Following an earlier decision of the same court in Mt. Raj Mohni Debi v. Harihar Mahton (AIR 1958 Patna 67) it was held, that one of the fractional owners of the equity or redemption may sue to redeem the whole mortgage and the suit is not liable to be dismissed for non joinder of the other comortgagors. In the present case, as the owner of the half share of the equity of redemption, the plaintiffs can be allowed to redeem the mortgage by payment to the defendant of whatever is found due to him on settlement of accounts. This will effectually dispose of the case as between the plaintiffs and the defendant and will in no way affect or prejudice the rights of the heirs of Chadayan Kunjan. So I think, this is a case in which the ratio of the decision cited may be applied.

(3.) It has been concurrently found, that Chadayan Kunjan had left heirs and this will stand. In the result, in reversal of the decree of the lower court dismissing the suit, a decree is given to the plaintiffs for redemption as aforesaid, and the case will go back to the first court for settlement of the amount payable to the defendant for redemption. The parties shall bear their costs throughout.