GANGA DEVI Vs. BHERUJI

JUDGEMENT

(1.) THE Appellant's suit for redemption was dismissed by the Civil Judge, Agar and that decision has been affirmed by the learned Additional District Judge, Shajapur holding that the Plaintiff had no right to sue for redemption.

(2.) THE material facts of the case are that one Mahant Haripuri was the owner of a house called Babawal Nohra. He mortgaged this house in favour of the father of Badrulhasan in the year 1921. Badrulhasan sold the Nohra to Amra Defendant No. 1 and Onkarlal father of Khayalilal Defendant No. 2, by a sale -deed dated March 27, 1933. On the other hand, by a mortgage -deed dated October 13, 1950 Mahant Haripuri Defendant No. 4 mortgaged his right of redemption in favour of Smt. Gangadevi, the Plaintiff.

(3.) IN my judgment, the first ground stated above is not only contrary to the provisions of law but it is also in complete disregard to the elementary principles and incidents of mortgage. The right of redemption is itself a property which the mortgagor is entitled to sell, mortgage or otherwise transfer. It does not appear from the judgment of the learned Additional District Judge from where he gets the law that a mortgagor cannot create a mortgage of his right of redemption without first redeeming the earlier mortgage. It is a fundamental concept of mortgage that it splits, so to say the ownership rights into two - -one parcel (called the "mortgagee's rights") goes to the mortgagee while the other piece which still remains with the mortgagor is the equity of redemption. Both these rights are heritable and alienable properties. When subsequently the mortgagor creates a mortgage of his right of redemption, that right again gets broken up into two fragments. This mortgagee gets the mortgagee rights of the equity of redemption while the mortgagor now retains with him the right to redeem the equity of redemption. Hence the mortgage of 1950 in favour of the Plaintiff was that of the equity of redemption and the Plaintiff could as such bring a suit for redemption against the mortgagee of 1921 or his representative in interest, I, therefore, hold that the present suit for redemption was maintainable. If the possession was not with the mortgagee at that time, the deed of 1950 created only a simple mortgage in favour of the Plaintiff. That too does not render the suit incompetent. If any reference to law is needed it is sufficient to refer to Section 91 of the Transfer of Property Act.