KUNJAN GOVINDAN Vs. BHAGAVATHI LEKSHMI

JUDGEMENT

(1.) The suit which has given rise to this Second Appeal was one for redemption of a mortgage. The plaintiffs deceased father Mathevan Kunchan was the mortgagor. He died leaving a widow and five children including the plaintiff. Alleging that the equity of redemption belonged to the sub tarwad consisting of the widow and children of the deceased, the plaintiff instituted this suit on behalf of the sub tarwad seeking redemption of the whole property. The defendant mortgagee contended that the widow and children got specific shares on his death, that he had purchased the 1/6th share of one of the children and that the plaintiff was entitled to redeem only his 1/6th share. Although the Trial Court found that the plaintiff was entitled only to 1/6th of the property, it allowed the plaintiff to redeem the whole property. On appeal the Trial Courts decree was modified and the decree for redemption was limited to the plaintiffs 1/6th share. The plaintiff has preferred this Second Appeal claiming redemption of the whole mortgage.

(2.) The only point for decision is whether the plaintiff can be allowed to redeem more than 1/6th of the property. It was not disputed that the heirs of the mortgagor became entitled to the property as tenants-in-common, each getting 1/6th share and that the defendants had purchased the share of one of the heirs. The suit was brought on behalf of the sub tarwad and it was found by the Trial Court that the heirs of the mortgagor did not obtain the property as a sub tarwad. Redemption cannot therefore be allowed on that basis.

(3.) Learned counsel for the appellant did not contend that the plaintiff was entitled to redeem the 1/6th share acquired by the defendant by purchase. The argument advanced was that the mortgage should be deemed to be extinguished to the extent of the 1/6th share purchased by the defendant and that the plaintiff should be allowed to redeem the remaining 5/6th. Apart from the fact that the plaintiff did not choose to make the other heirs of the mortgagor parties to the suit, his prayer cannot be allowed as the integrity of the mortgage became broken when the defendant purchased the share of one of the heirs. According to the appellant, he is entitled as part owner of the equity of redemption to redeem the whole of the residue which includes the share of the other coowners who are not parties to the suit. Reliance was placed on the decision of the Privy Council in Mirza Yadali Beg v. Thukaram and another ( AIR 1921 PC 125 ) in support of this argument. It was contended that the Privy Council in effect overruled the earlier decision in Azimut Ali v. Jowahir Singh (13 M. I. Appeals 404) which held that when the integrity of a mortgage was broken by the mortgagee acquiring a share in the equity of redemption, the plaintiff who owned only a share was entitled to redeem only his share and no more. Some reported decisions such as Pala Singh v. Attar Singh (AIR 1954 Punjab 81) and Ghasiram v. Hiralal (AIR 1954 Madya Bharat 67) have taken the view that the earlier decision has been overruled by the decision in Mirza Yadali Beg v. Thukaram and another. With great respect I am unable to accept this view because Mirza Yadali Beg v. Thukaram was a case in which the integrity of the mortgage was not broken at all. The plaintiff in that suit was purchaser of one of 16 villages mortgaged and he sued for redemption of 9 villages which had been foreclosed by the mortgagee. The plaintiff had not been made a party to the foreclosure proceedings. The Judicial Commissioner held that the plaintiff was entitled to redeem the 9 villages on payment of the whole mortgage money after debiting the mortgagee with a fair occupation rent for the 9 villages during the period of his possession. The Privy Council also came to the conclusion that the mortgagee did not obtain perfect title to the 9 villages by foreclosure as the plaintiff was not made a party to the foreclosure proceedings. Since the mortgagee got only an imperfect title to the 9 villages, the integrity of the mortgage did not become broken up. After holding that the plaintiffs were not affected by the foreclosure proceedings, Viscount Haldane who delivered the judgment held: