RAKHAL CHANDRA SARDAR Vs. TARUBALA DEBI

JUDGEMENT

(1.) This is an appeal from the decision of a Subordinate Judge, Howrah, setting aside the learned Munsif's judgment, and decreeing the Plaintiff's suit for redemption of a mortgage.

(2.) Plaintiff's father-in-law, Sarat Chandra Roy, mortgaged the disputed property on March 16, 1933, for a sum of Rs. 200 to the Defendant Rakhal. Sarat died leaving six sons and the Plaintiff is the widow of one of the sons, Sadhan. Sadhan died leaving his son who inherited him on his death. This son also died and his mother, the present Plaintiff, thus got 1/6th share in the proper ties and also in the equity of redemption. Thereafter, in 1944, the mortgage, who is Defendant-Respondent, got a decree for foreclosure in title suit No. 238 of 1944 and a final decree was passed on August 3, 1946 for a sum of Rs. 50, as the rest of the loan was satisfied by usufructs of the land. The present Plaintiff, however, was not a party in the foreclosure suit. In 1948 the judgment-debtors brought a suit impeaching the decree on the ground of fraud, impleading the present Plaintiff as a pro-forma Defendant but the suit was dismissed. The Plaintiff has now brought this suit for redemption of the entire mortgage claiming that by mutual partition among the co-sharers she got the entire interest in the suit properties.

(3.) The suit was contested by the Defendant mortgagee denying the Plaintiff's right to redeem the entire property and the learned Munsiff dismissed the suit on the finding that the suit was barred by principle of constructive res judicata as she was a party Defendant in the suit of 1948. The learned Subordinate Judge, who heard the appeal, found that the Plaintiff was not a party in the mortgage suit and was entitled to redeem the mortgage and that the suit was not barred by the principles of constructive res judicata. He, however, disbelieved the Plaintiff's plea of having acquired the entire property by mutual partition but held that a mortgage is indivisible and so is a mortgage decree and that, though a co-share to the extent of 1/6th share, she had a right to redeem the entire mortgage by payment of the dues settled in the mortgage decree.