CHANDI CHARAN ROY Vs. SIRAJ MIA

JUDGEMENT

(1.) This is an appeal by the mortgagees-defendants in a suit for redemption of the mortgage. At the trial the defendants had alleged that there had been a sale to them and not a mortgage but that contention of theirs has been given up. The suit was dismissed in the first Court, which found that there had been a sale. The Court of appeal found that the transaction was a usufructuary mortgage the principal amount borrowed being Rs. 25 and the intention being that the usufruct of the land should be enjoyed in lieu of interest. That Court further found that the plaintiff had tendered the amount of the mortgage-debt to the defendant in Pous 1329, and that tender had been refused by the defendants. It accordingly gave a decree for redemption of the mortgage on deposit of Rs. 25 by the plaintiff within two months of the date of the decree and ordered that an account be taken of the usufruct enjoyed by the defendants from the date of the tender up to the date of recovery of possession by the plaintiff.

(2.) In appeal before me various objections have been taken to the decree of the Subordinate Judge. The first is that only one of the mortgagors has appealed and, therefore, it is contended that he is only entitled to redeem his share of the mortgaged property. The second objection taken to the decree is that the appeal should have failed because the other mortgagors were not brought on the record either as co-appellants or as respondents and lastly an objection has been taken to the order for taking accounts on the ground that the person who was the appellant before the Subordinate Judge was not entitled to the whole of the usufruct derived from the property.

(3.) The first objection is supported by the case of Nawab Azimat Ali Khan V/s. Jowahir Singh [1869] 132 M.I.A. 404. That decision does not help the appellants. In that case the mortgagee had acquired a fractional interest in the equity of redemption and what their Lordships of the Privy Council held was that the mortgagee could not be compelled to permit redemption of the portion acquired by him. A case decided in this Court, namely, Grish Chander Dey V/s. Juramoni De [1901] 5 C.W.N. 83 has also been cited. In that case the ruling in Nawab Azimat Ali Khan's case (1869) 13 M.I.A. 404, was construed as prohibiting a joint mortgagor from claiming to redeem an entire mortgage. That ruling, however, has been dissented from in two subsequent rulings of this Court, namely, Baikantha Nath Dey V/s. Mohesh Chandra Dey [1918] 22 C.W.N. 128 and Protap Chandra Dhar V/s. Peary Mohun Dhar [1918] 22 C.W.N. 800, where it is pointed out that in Azimat Ali Khan's case (1869) 13 M.I.A. 404, the mortgagee had acquired an interest in the equity of redemption and it was only in respect of that interest that the mortgagors prayer for redemption would be refused. In a subsequent Privy Council decision Norender Narain Singh V/s. Dwarka Lal Munder [1877] 3 Cal. 395, it has also been ruled that a person who has a fractional interest in the equity of redemption is entitled to redeem the whole mortgage. So the first objection fails.