GANPATIA Vs. CHHOTI

JUDGEMENT

(1.) THIS is a defendant-mortgagee's second appeal arising out of a suit for redemption of mortgage in respect of a house described in para No. 1 of the plaint and situated in the town of Dholpur.

(2.) THE facts not now in dispute are that the house in question was jointly owned by the plaintiff-respondent Smt. Chhoti and respondent-defendant No. 2 Smt. Devalia, whose husbands Lok and Chhitariya respectively were brothers. After their husbands had died Smt. Chhoti and Smt. Devalia, mortgaged the house for a sum of 1000/- in favour of the appellant-Defendant No. 1 Ganpatia by a registered deed dated 5-6-1962 THE mortgagee rented out the mortgaged house to the mortgagors and the rent agreed was equal to the interest on the mortgage money. It further appears that Smt. Devlia sold her undivided half share in the property to the mortgagee Ganpatia. On 23-3-1963 plaintiff Smt. Chhoti filed suit for redemption of the whole house against Ganpatia and impleaded Smt. Devlia also as a proforma-defendant. THE learned trial court held that the plaintiff can claim only partial redemption of the property to the extent of her share on payment of Rs. 500/- and directed a preliminary decree to be drawn in accordance with O. XXXIV, r. 7 C. P. C. On appeal by the plaintiff, the learned Judge No. 1, Bharatpur modified the judgment and decree of the trial court as follows : "this appeal partly succeeds and is hereby allowed to the effect that the plaintiff shall be entitled to redeem her half share in the property on payment of Rs. 500/-as mortgage money. She shall, however, be entitled to recover possession of the whole of the property on payment of the above mortgage debt. On payment of Rs. 500/- by the plaintiff to defendant No. 1, the latter shall recovery half of the property to the plaintiff and shall also hand over possession of the whole of the property to her. In case of default in payment of the mortgage amount by the plaintiff within a period of 3 months, she shall be debarred from redeeming the property in future. " Two points have been submitted for decision : (i) Whether the plaintiff is entitled to redeem the whole mortgage ? (ii) In case the plaintiff is held entitled to redeem only her half share should a decree for partition be granted in this very suit ?

(3.) IT appears to me that the character of indivisibility of the mortgage exists not only with reference to the mortgagee but also with reference to the mortgagor and save by special arrangement between all the parties interested, neither the mortgagor nor the mortgagee, nor persons acquiring a partial interest though either can obtain relief under the mortgage except in consonance with the principle of indivisibility. In the present case there is no controversy that the house is undivided. IT is also not disputed that Smt. Devalia sold her share of the mortgaged property to the mortgagee without the consent and without knowledge of the plaintiff Smt. Chotti. Thus so long as the property is not divided and specific portion allotted between the two mortgagors, the right of Smt. Chotti to redeem the whole mortgage subsists. The mortgagee and the co-mortgagor Smt. Devalia cannot defeat that right. Thus in the present case there being no consent of Smt. Chotti, her right to redeem the entire mortgaged property cannot be refused. 1 am, therefore, of opinion that the plaintiff is entitled to redeem the whole mortgage on payment of Rs. 1000/- being the mortgage money and it will be open to the mortgagee who has purchased the share of Smt Devalia to bring a suit for partition like any other co-sharer. 14. In this view of the matter it is not necessary to examine the second point.