SHAH RAM CHAND Vs. PANDIT PARBHU DAYAL

JUDGEMENT

(1.) This appeal is by the plaintiff in a redemption suit which was brought in the Court of the Subordinate Judge of Agra in 1924. It has reference to a village called Muthamai in the District of Agra, which at one time belonged to a zemindar called Nawal Singh. In this village the plaintiff inherited the interest of the mortgagee under a mortgage of 1893 granted by Nawal Singh to the plaintiff's grandfather: having brought a suit (No. 50 of 1911) to enforce that mortgage the plaintiff purchased Muthumai at the judicial sale in 1923 and thus became vested with the right and title which Nawal Singh had possessed in 1893. The question now raised is as to the amount which he must pay to free Muthamai from the prior charge created by a mortgage granted by Nawal Singh in 1882 over three other villages as well as Muthamai. Is it the whole sum outstanding upon the mortgage of 1882? Or is he, in the events which have happened, entitled to redeem Muthamai on payment of a part thereof, and if so how much must he pay ? Both Courts in India have held that he must pay the whole sum outstanding, which is Rs. 30,000. Section 60, T. P. Act (4 of 1882), is a statement of the right to redeem. It requires payment or tender of "the mortgage money" which has been defined by cl. (a) of S. 58 as "the principal money and interest of which payment is secured for the time being." Section 60 as it stood until 1929 concludes as follows: "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 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."

(2.) Four mortgages are involved in the case-the first three being granted by Nawal Singh in his lifetime and the fourth after his widow's death by his reversionary heirs, (a) 6 January 1882: to Bast Ram and Ram Kishen: for Rs. 25,000 with interest at 6 3/4 per cent. with yearly rests : a simple mortgage of four villages - Muthamai, Phulaechi, Sherpur and Salempur. (b) 13 January 1893: to plaintiff's grandfather Shah Bhagirath: for rupees 10,000: of two villages- Muthamai and Larhipur. (c) 24 June 1893: to Bast Ram and Ghasi Ram, son of Ram Kishen: for Rs. 40,000 with interest at 6 per cent. with half-yearly rests: a simple mortgage of five villages-Muthamai, Phulaechi, Sherpur, Salempur and Undni. The first four of these villages had been comprised in mortgage (a) and Rs. 27,000 out of this mortgage money went to pay off mortgage (a), (d) 31 March 1905: usufructuary mortgage: to Ghasi Ram successor of Bast Ram and Ram Kishen: for Rs. 1,03,200: of four villages- viz., Muthamai, Undni, Phulaechi and Matsena. Rs. 68,097 of this mortgage money went to pay off mortgage (c). It was stipulated that Phulaechi and Matsena might be first redeemed for Rs. 43,700 and Muthamai and Undni thereafter for Rs. 59,500. In his mortgage suit of 1911 it was determined against the plaintiff that the mortgage of 1882 is extant as a charge for the original advance having priority to the plaintiff's interest in Muthamai and this is the basis of his present claim to redeem. Their Lordships will accept the plaintiff's view that the amount due thereon at 31 March 1905, when the usufructuary mortgage was executed, was Rs. 45,967. No question of subsequent interest arises: since that date the profits of the property have been enjoyed by way of interest as provided in the usufructuary mortgage. But the plaintiff relies upon certain transactions which have since taken place with reference to that mortgage and which may now be stated.

(3.) In 1909 the successors in interest of Ghasi Ram were sued to judgment by certain creditors, and their security upon the villages Muthamai and Phulaechi under the usufructuary mortgage was in 1910 sold in execution to two persons called Panna Lal and Peare Lal (original defendants 1 and 2 to the present suit). The sale was confirmed in 1911 but no copy of the sale certificate is before the Board. The security upon the villages Undni and Matsena remained with Ghasi Ram's successors and in due course came to Madan Mohan (original defendant 4) and to a cousin of his called Bhowani Ram (original defendant 3). On the latter's death, Madan Mohan has become solely entitled. After the present suit had been filed, namely on 30 June 1925, Madan Mohan and his cousin accepted the sum of Rs. 29,500 from one Laik Singh who had purchased in execution the interest in village Undni of the mortgagors, under the usufructuary mortgage, and who desired to redeem it. Possession was given to him of this village and it was released from the mortgage. In 1924 one Ram Chand (not the plaintiff) purchased in execution the mortgagors' rights in Phulaechi and Matsena and in 1925 he applied for redemption of these villages under S. 83, T. P. Act, against both sets of mortgagees. By their consent he obtained possession of these two villages and their release from the usufructuary mortgage upon payment of Rs. 21,500 to Panna Lal and Peare Lal and Rs. 22,200 to Madan Mohan and his cousin. Thus of the principal sum due upon the usufructuary mortgage-viz., Rs. 1,03,200-sums appropriated to the release of three villages other than Muthamai were paid to the amount of Rs. 73,200. Rs. 30,000 is the amount outstanding and is in respect of principal alone. There having been no appropriation of any payment to the original advance of 1882 or in relief of Muthamai, the High Court held that as the sum of Rs. 45,967 which in 1905 was due upon the mortgage of 1882 could have been realised out of village Muthamai, any lesser sum now outstanding must be paid by the plaintiff in order to redeem that village.