SHAH RAM CHAND Vs. PANDIT PARBHU DAYAL

JUDGEMENT

(1.) THIS appeal is by the plaintiff in a redemption suit which was brought in the Court of the Subordinate. Judge of Agra in 1924, It has reference to a village called Muthamai in the district of Agra, which at one time belonged to a zemindar called Nawal Singh. In this village the plaintiff inherited the interest of the mortgagee under a mortgage of 1893 granted by Nawal Singh to the plaintiff's grandfather : having brought a suit (No.50 of 1911) to enforce that mortgage the plaintiff purchased Muthumai at the judicial sale in 1923 and thus became vested with the right and title which Nawal Singh had possessed in 1893. The question now raised is as to the amount which he must pay to free Muthamai from the prior charge created by a mortgage granted by Nawal Singh in 1882 over three other villages as well as Muthamai. Is it the whole sum outstanding upon the mortgage of 1882 ? Or is he, in the events which have happened, entitled to redeem Muthamai on payment of a part thereof, and if so how much must he pay ? Both Courts in India have held that he must pay the whole sum outstanding, which is Rs. 30,000.

(2.) SECTION 60 of the Transfer of Property Act (IV of 1882) is a statement of the right to redeem. It requires payment or tender of "the mortgage money" which has been defined by Clause (a) of SECTION 58 as the principal money I and interest of which payment is secured for the time being.'' SECTION 60 as it stood until 1929 concludes as follows : Nothing in this section shall entitle a person interested in a share only of the mortgaged property to redeem his own share only on payment of a proportionate part of the amount remaining due on the mortgage, except where a mortgagee, or if there are more mortgagees than one, all such mortgagees, has or have acquired, in whole or in part, the share of a mortgagor.

(3.) IN 1909 the successors in interest of Ghasi Ram were sued to judgment by certain creditors, and their security upon the villages Muthamai and Phulaechi under the usufructuary mortgage was in 1910 sold in execution to two persons called Panna Lal and Peare Lal (original defendants Nos. 1 and 2 to the present suit). The sale was confirmed in 1911 but no copy of the sale certificate is before the Board. The security upon the villages Undni and Matsena remained with Ghasi Ram's successors and in due course came to Madan Mohan (original defendant No.4) and to a cousin of his called Bhowani Ram (original defendant No.3). On the latter's death, Madan Mohan has become solely entitled.