PRANBALLAV SAHA Vs. BHAGBAN CHANDRA SEAL

JUDGEMENT

(1.) This appeal has been preferred by the plaintiffs under Section 15 of the Letters Patent from a decision of my learned brother Mukerji, J., and arises in an action commenced by the appellants for enforcing a mortgage security. It is not necessary to restate the facts as they have been stated with sufficient fulness by my learned brother Mukerji, J. The question of law which falls for determination in this appeal is whether defendant 8 who is a purchaser of a portion of the equity of redemption is entitled to redeem his property only when subsequent to his purchase, the plaintiffs without the knowledge, of the said purchase released from the mortgage some other of the mortgaged properties. The contention of the plaintiffs-appellants before us is that it is only when the mortgagee grants a partial release with the knowledge of change of ownership of a part or the whole of the mortgaged properties that a partial redemption is to be allowed and that where he does so without any such knowledge the transferee has no equities in his favour on which he can rely for claiming such partial redemption. The learned Judge points out that he has not been able to discover any authority bearing on the question, and he has come to the conclusion that where the transferee could never have the knowledge of release, as in the present case where a release took place after the transfer, partial redemption can be insisted on. In coming to this conclusion Mukerji, J., has relied on certain equitable grounds and it is best to reproduce what he has said in this connexion: An innocent transferee of a parti of the equity of redemption too has his rights protected on equitable considerations. In my judgment, such a transferee is entitled to urge on equitable grounds that when he took the transfer there was one indivisible mortgage, and when after he acquired an interest in the equity of redemption, the integrity of the mortgage was broken by the mortgagee and the mortgagor behind his back, he is entitled to claim a partial redemption, the mortgagee himself being no longer competent to rely on the integrity of the mortgage.

(2.) In considering this question we must first turn to the legislative provision for partial redemption in the transfer of Property Act. This is contained in Section 60 of the Act as it stood before its amendment by the Transfer of Property Amendment Act of 1929, the suit having been commenced in 1928. Section 60 of far as is material ran 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.

(3.) This Section would seem to suggest that a part of the mortgaged property is not to be redeemed except on the payment of the mortgage money, the only exception to the rule being the case of the mortgagee having himself acquired part of the mortgaged property. On a strict construction of this section it has been recently held by a Full Bench of the Madras High Court in the case of 1918 Mad. 1030 Peru Mal V/s. Raman, 1918 Mad 1030, in which the judgment was delivered by Sir John Wallis, 0. J., as he then was, that a mortgagee voluntarily releasing from the suit a portion of the mortgaged property is not bound to abate a proportionate part of the debt and is entitled to recover the whole of the mortgage amount from any portion of the mortgaged property. This view is clearly opposed to the view of this Court in the ease of 1 C. L. J. 337 Surjiram Marwari V/s. Brahamdeo Prasad, (1905) 1 CLJ 337. The general rule deducible from the authorities of this Court is stated in Sir Rash Behari Ghose's classic book on the Law of Mortgages in the following words: The general rule on the subject is that the rights of persons who have acquired an interest in the mortgaged estate since the making of the mortgage, of which the mortgagee has notice, cannot be defeated or impaired by any subsequent arrangement to which they are not parties. If therefore a mortgagee with notice that the equity of redemption in a part of the mortgaged property has been conveyed, releases any part of the mortgaged estate, he must abate a proportionate part of the mortgage debt as against such purchaser. In other words a mortgagee cannot release a part of the mortgaged land, and then seek to enforce his entire claim upon another portion in which third parties have become to his knowledge interested as assignees of the equity of redemption!" See Ghose's Law of Mortgages, Edn. 5, p. 336.