RAKHAL CHANDRA SARDAR Vs. TARUBALA DEBI

JUDGEMENT

(1.) THIS is an appeal from the decision of a Subordinate Judge, Howrah setting aside the learned munsiffs judgment, and decreeing the plaintiff's suit for redemption of a mortgage. 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 properties and also in the equity of redemption. Thereafter, in 1944 the mortgagee who is defendant-respondent got a decree for foreclosure in title suit no. 235 of 1944 and a final decree was passed on 3. 8. 46 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 imp leading 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.

(2.) THE suit was contested by the defendant mortgagee denying the plaintiff's right to redeem the entire property and the learned Munsif dismissed the suit on the finding that the suit was barred by the principle of constructive resjudicata 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 resjudicata. 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-sharer 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. This appeal is directed against the; order of the learned Subordinate Judge declaring plaintiff's right to redeem the entire property and the short point raised in this appeal is whether the plaintiff-respondent has right to redeem the entire mortgage or any to the extent of her share. The learned advocate for the appellant has challenged the finding of the Subordinate Judge that the mortgage being indivisible, she had a right to redeem the entire property ; although she had only 1/6th share and although the mortgagee had foreclosed the mortgage by a foreclosure decree. Section 60 of the Transfer of Property Act gives a mortgagor the right to redeem and the 5th paragraph of the section reads as follows:-Redemption of portion of mortgaged property 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 only 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. A co-mortgagor therefore is not ordinarily entitled to redeem his own share only of the mortgage on payment of proportionate part of the amount remaining due except only in a case where the mortgagee or a co mortgagee has acquired in whole or in part the share of a mortgagor. In the instant case before us, the co-mortgagee has acquired 5/6th share by a fore closure decree and there is therefore no doubt about the respondent's right to redeem to the extent of her share in any case. The dispute however centers round the claim to redeem the entire mortgage, which has been decreed by the first appellate court. The mortgagee has obtained a final decree in respect of the mortgage debt imp leading 5/6th co-mortgagors and to this extent therefore no debt remains and the co-mortgagor's right of redemption extends only to the residue. The final decree in the foreclosure suit extinguishes the mortgage protanto in respect of that part and what is available for redemption is only the residue, without consent of the mortgagees. This view finds support in a number of decisions of the various High Courts. In a case reported in (1) A. I. R. 1952, Nagpur 341, (F. B.) (Maulabux v. Sardarmal and another) it has been held as follows:

(3.) IT was pointed out that if the co-mortgagor who was not imp leaded in the decree for sale or foreclosure, was permitted to redeem the whole, the mortgagee who purchased the property in execution of the final decree would get back his property on payment of proportionate debt. In another case reported in (2) A. I. R. 1954 Madhya Bharat 67 (Ghasiram Kanhaiyalal v. Hiralal Muhirlal and another) this question as to the co-sharer mortgager's right to redeem the entire property arose and the learned Judges observed as follows: