JAUHARI Vs. TUNDAY

JUDGEMENT

(1.) The facts are fully stated in the judgment of my learned brother. So far _as the question whether after the integrity of the mortgage has been broken a co- mortgagor can, as of right, claim redemption of his share only, is concerned, I have no doubt that he cannot claim more. He is not entitled to take possession of the share of the other co-mortgagors against the will of the mortgagee. When the mortgagee has acquired a part of the mortgaged property, he is on the same footing as the other co-mortgagors. He cannot be compelled to hand over possession of the shares which do not belong to the plaintiffs. I do not think that any of the cases referred to by my learned brother is an authority for the proposition that if the mortgagee submits to the redemption of the whole property on payment of the whole amount due, the taking over possession of the other co- mortgagors shares is unlawful and the redeeming co-mortgagor enters into adverse possession of those shares immediately.

(2.) In Kuray Mal V/s. Puran Mal [1878] 2 All 565. Spankie, J., merely held that the representative of a mortgagor of a particular share is entitled to redeem his own particular share in the joint mort-gage of which the joint character has been broken up,but-he cannot redeem, against the will of the mortgagee, the share of another share-holder. Oldfield. J., also emphasised that when the joint character of the mortgage has been broken the right to redeem the whole mortgage resting on the joint character of the mortgage ceases, and he cannot redeem more than his share against the will of the mortgagee. In the case of Fakir Baksh V/s. Sadat Ali [1885] 7 All 376, the mortgage debt had been satisfied from the usufruct and therefore the mortgage no longer existed. Gobardhan V/s. Sujan [1894] 16 All 254 was also a case where the amount of the mortgage had been satisfied out of the usufruct, and, as the learned Judges put it, the mortgage had become extinct and the parties were relegated to the position in which they were before the mortgage. They accordingly held that one of the mortgagors could only claim from the mortgagee his own individual share, as he had no right to take possession of the share of the others. But the learned Judges also observed that there can be no doubt that when one of several mortgagors redeems the mortgage by payment of the mortgage money and takes possession of the mortgage property, he steps into the shoes of the mortgagee as regards the shares of his co-mortgagors, and his possession over those shares can only be regarded as the possession of the mortgagee. In Kalian Khan V/s. Mardan Khan [1906] 28 All 155 Banerji, J., relied on Kuray Mal's case [1878] 2 All 565, and quoted the obsarvation that the person interested in a part of the mortgaged property after the joint character had been broken up, was not entitled to redeem anything beyond his own share against the will of the mortgagee. He laid down the principle that such a mortgagor "may" redeem his own share only on payment of a proportionate part of the mortgage money, but he "cannot compel" the mortgagee to allow him to redeem the shares of the other persons in which he is not interested.

(3.) The case of Ahmad Husain V/s. Muhammad Qasim Khan is an authority only for the proposition that one mortgagor after the integrity of the mortgage has been destroyed, cannot as of right claim redemption of more than his own share when the mortgagee objects to it. In that case the mortgagee was resisting the claim and was objecting to any greater share being allowed to be redeemed. The same remarks apply to Zaib-un-nissa Bibi V/s. Parbhu Narain 1917 39 All 618. On the other hand a Bench of this Court in Shiam Saran V/s. Banarsi Das AIR 1922 All 192 allowed a part owner of the mortgaged property to redeem just as much of it as did not belong to the mortgagees themselves, on payment of a proportionate share of the mortgage debt, possible. The learned Judges were influenced by the circumstance that the majority of the pro-forma defendants had supported the plaintiff's claim and had asked that his suit might be decreed as brought. I am not prepared to go to the length to which the Bench in Shiam Saran's case AIR 1922 All 192 did, but I would certainly say that none of the cases referred to above is any authority for the proposition that when the mortgagee himself does not object and submits to the redemption of the share of all the co-mortgagors other than that which he himself has acquired, on receipt of the proportionate amount of the mortgage money, the possession of the redeeming co-mortgagor at once becomes adverse as against the other co-mortgagors.