DINANATH MAHISH Vs. NABAKUMAR HAJRA

JUDGEMENT

(1.) This is an appeal by the plaintiffs in a suit instituted by them for declaration, that a mortgage-decree is not fit for execution, for partial redemption by payment of proportionate shares of the mortgage dues and for incidental reliefs, The events which have led up to this litigation are not in controversy and may be briefly stated. On the 9 February 1:907 Rani Mrinalini, wife of Raja Narendra lal Khan of Narajole, obtained a consent decree in a mortgage suit against the plaintiffs. There were various proceedings in execution which need not be recited for our present purpose. On the 15 February 1915 Nagendra Bala Dasi, the second defendant in this suit, applied to the Execution Court to have her name substituted in the place of the decree-holder, on by allegation that she had taken an assignment of the decree on the 7 February 1915. On the 29 February 1915 the original decree-holder intimated to the Court that she had transferred the decree and had no objection to the grant of the application. The judgment-debtors took time to put in objections, but as they did not enter appearance on the day fixed, the name of the assignee was duly substituted and execution was directed to proceed at her instance. Four of the judgment-debtors, who were plaintiffs in the present litigation, subsequently applied to the Court to re-consider the matter, and their application was granted. Thereupon they lodged an objection to the effect that the applicant had not really taken an assignment of the decree, but that her husband, Babu Naba Kumar Hajra, who was the Pleader for the judgment-debtors in the execution case was the purchaser of the decree and had put forward his wife as the ostensible transferee. The Subordinate Judge then proceeded to determine the question, whether Nagendra Bala Dasi or Babu Naba Kumar Hajra had taken an assignment of the decree and came to the conclusion that the Pleader had purchased the decree with his own money. The Subordinate Judge also found that the assignment had been taken for Rs. 11,506 while a much larger sum was due under the decree.

(2.) The Subordinate Judge, however, held that as the Pleader stood in a fiduciary relation to his clients, the purchase of the decree by him operated in equity as a satisfaction of the decree and consequently a discharge of the judgment-debt. Nagendra Bala Dasi thereupon appealed to this Court and assailed the decision of the Subordinate Judge substantially on two grounds, namely, first, that the evidence did not establish that she was not the real purchaser of the decree, assuming that the question could be properly raised in execution proceedings, and, secondly, that the decree could not be treated as completely extinguished even if it should be found that her husband had made the purchase with his own money. Upon the first point, this Court held that as the Pleader was not and could not be a party to the execution proceedings, no question could be decided as between him and his wife as to who was the beneficial owner of the decree. Upon the second point, the Court held that even if it were assumed (though not decided) that the Pleader had taken an assignment of the decree, the decree could not be deemed as entirely extinguished and the judgment-debtors treated as fully discharged: Nagendra Bala DasSi V/s. Debendra Nath 44 Ind. Cas. 13 : 27 C.L.J. 388 : 22 C.W.N. 491. The Court thereuponset aside the order of the Subordinate Judge and declared that the assignee Nagendra Bala Dasi would be competent to proceed with the execution of the decree, the execution proceeding to stand revived for that purpose. The Court however added a direction that no steps be taken in execution till the 1 January 1918, so that the judgment-debtors might have ample time to institute, if they should be so advised, a suit again the assignee of the decree and her husband with a view to obtain a transfer of the decree in their own favour, oh proof of the allegations they had made and upon payment of such sum as the Court might determine, on the principle that the Pleader held the decree assigned to him in trust for his clients and if called upon by his clients to do so, was bound to assign the decree to them upon equitable terms. The litigation which has culminated in this appeal was then commenced on the 22 December, 1917, not with a view to obtain a transfer of the decree upon equitable terms, but for partial redemption upon payment of proportionate amounts to the real assignee of the decree. In view of the frame of the suit it became manifestly impossible for the plaintiffs to obtain a stay of the execution proceedings during the pendency of the litigation. The event which might have been anticipated happened; the mortgaged properties were sold in execution and were purchased by the assignee of the decree or the 18 February 1918; the sale was duly confirmed on the. 28 September 1918, and thereupon possession was delivered on the 28 November 1918. The Subordinate Judge fore to the conclusion on the evidence that the assignment of the decree was taken in reality by the Pleader and not by his wife, both of whom were joined as defendants to the suit. The Subordinate Judge, also; held that the plaintiffs were entitled to take an assignment of the decree on payment of Rs. 13,750, with price of stamps and registration costs within one month from the date of judgment. This decree was made On the 14 July 1919, and it was apparently overlooked that, during the pendency of the suit, the decree had already been executed and the hypothecated properties purchased by the assignee of the decree. On the present appeal by the plaintiffs, four of the judgment-debtors under the decree, it has been argued that they were entitled to redeem on payment of a proportionate of the judgment debt and that in any view the entire amount due under the decree has been over-estimated.

(3.) The claim for partial redemption is based substantially on the ground that the decree under execution makes the judgment-debtors severally liable fox specified sums and constitutes in essence an aggregate of separate decree written on the same sheet of paper. This view of the nature of the decree is clearly erroneous. No doubt, the decree specifies the amount payable by each set of judgment-debtors, which is recoverable in the first instance from their properties granted by way of mortgage; at the same time, the decree provides that if the mortgage-debt is not satisfied in this manner, the balance due is recoverable from the mortgaged properties as a whole Consequently, the joint liability of the mortgagors is not entirely transformed into a several liability. In such circumstances, the principle applies that a mortgage contract is indivisible and it is the right equally of the mortgagor and the mortgagee to keep it indivisible. As pointed out in Debendra Nath Sen V/s. Mirza Abdul Samed 1 Ind. Cas. 264 : 10 C.L.J. 150 the general rule is that a mortgagee cannot be required at the instance of a purchaser of part of the premises to apportion his mortgage-debt among the several parts into which the property has been divided and to look to each only for its proportionate share, unless circumstances have happened the effect of which, in fact or in law, is to create a severance of the security. But an-apportionment will be directed in exceptional cases, such as, where it is necessary for the benefit of one who has taken a part of the property under necessity and for the protection of his own interest, or where the mortgagee himself has been the owner of a part of the equity of redemption, or where by his own conduct, there has been a break up of the entire security. The test to be applied in each case is, whether there has been a severance of, the security at the instance or with the consent of the mortgagee, arid an apportionment will not be forced upon the mortgagee unless special equitable considerations are established. The same principle was affirmed and applied in Midnapur Zemindary Co. V/s. Abinash Chundra Mitra 50 Ind. Cas. 790 : 29 C.L.J. 297 : 23 C.W.N. 308 and Isri Prosad V/s. Rai Gunga Prosad Singh Bahadur 3 Ind. Cas. 311 : 14 C.W.N. 165. Illustrations of cases in which partial redemption was allowed will be found in Ganeshi Lal V/s. Char an Singh 19 Ind. Cas. 614 : 35 A. 247 : 11 A.L.J. 280 and Rathna Mudali V/s. Perumal Reddy 17 Ind. Cas. 837 : 38 M. 310 : 12 M.L.T. 484 : (1912) M.W.N. 1168 : 23 M.L.J. 576. On the other hand, the cases of Sanwale Singh V/s. Ganeshi Lal 20 Ind. Cas. 41 : 35 A. 441 : 11 A.L.J. 630; Venkatasubba Reddy V/s. Bagiammal 29 Ind. Cas. 113 : 30 M. 419 : 2 L.W. 469 : (1915) M.W.N. 339 : 17 M.L.T. 411 : 29 M.L.J. 319 furnish instances where partial redemption was not allowed. We are clearly of opinion that the terms, of, the decree in the present Case, attract the operation of the general rule enunciated in Hara Kumari Chowdhurani V/s. Eastern Mertgage and Agency Co. Ltd. 7 C.L.J. 274 and Hakim Lal V/s. Ram Lal 6 C.L.J. 46 namely, that a mortgagee cannot be required at the instance of a holder of a fragment of the equity of redemption to apportion his mortgage-debt among the several parts Mito which the property is divided and to look to each only for the proportionate share of the debt. This rule has full operation, unless special circumstances have effected a severance of the security. The view we as is supported by the decision of the Judicial Commitee in Yadalli Beg V/s. Tuka Ram 57 Ind. Cas. 535 : 47 I.A. 207 : 25 C.W.N. 241 : (1920) M.W.N. 369 : 28 M.L.T. 95 : 39 M.L.J. 147 : 2 U.P.L.R. (P.C.) 123 : 16 N.L.R. 154 : 12 L.W. 503 : 22 Bom. L.R. 131 : 48 C. 22 (P.C.) where Viscount Haldane observed as follows: The only question that arises is whether they are entitled to redeem the whole of the nine fields, or only the field conveyed to them subject to the mortgage over the whole. According to the English Law the respondents would have been entitled to redeem the mortgage in its entirety, subject only to the safeguarding of the equal title to redeem of any other person who had a right of redemption, a point which has not arisen so far in the present case. The respondents, being transferees of part of the security, by English Law, if it applied would on the one hand be entitled to redeem the entire mortgage on the properties generally and correlatively could not, complete the mortgagee to allow them to redeem their part by itself. This would be so as the result of principle, unless something, had happened which extinguished the mortgage in whole, or in part such as an. exercise of a power of sale originally conferred on the mortgagee by his security, or such conduct on the part of the transferees as would estop them from asserting what normally would have been their right Nothing of this kind is alleged in the case before their Lordships.