VENKATARAMANI AYYAR Vs. RANGASWAMI CHETTY

JUDGEMENT

(1.) The plaintiff effected a mortgage of his property in favour of the 1 defendant and the father of Defendants 2 and 3. The 4 defendant, who got a transfer of the mortgage, and his brother mortgaged their properties, along with the mortgagee right over the plaintiff's property, to the 5 defendant. Plaintiff has brought this suit for redemption and the first Court granted a decree for redemption against all the defendants. On appeal the Subordinate Judge exonerated the 5 defendant and granted a decree for redemption against the 4th defendant. The plaintiff has preferred this second appeal.

(2.) It is contended by Mr. Narasimbachari for the appellant that the decree against the 4th defendant alone is not correct, and that he is entitled to a decree against the 5 defendant who has got only an encumbrancer's right over the mortgage right of the 4 defendant.

(3.) In a redemption suit the mortgagor is entitled to make, not only the mortgagee, but all the persons who have derived title from the mortgagee, as parties to his action and the Court is not debarred from granting relief to the mortgagor against the mortgagee as well as the persons who have derived title from the mortgagee. The contention of Mr. Muthiah Mudaliar for the respondent is that he has taken a mortgage of several items of property belonging to the 4 defendant and his brother and this mortgage right is only one of the items mortgaged to him and that the plaintiff cannot have a decree against him, as he is not in the position of an ordinary submortgagee and he relies upon Secs.60 and 62 of the Transfer of Property Act as supporting his contention. Section 60 provides for redemption of a mortgage and Section 62 provides for the redemption of a usufructuary mortgage. He relies on the wording of C1. (b) and contends that by the term "mortgagee," only the mortgagee is intended and not any one who derives title from the mortgagee. Section 62 does not limit the right of the mortgagor to proceed only against the mortgagee in a redemption suit. In order to avoid multiplicity of proceedings the Court is not debarred from giving a decree in a redemption suit against the persons who have derived title from the mortgagee.