PERIAKARUPPA PILLAI Vs. (MINOR) SATYANARAYANAMOORTHI

JUDGEMENT

(1.) This is a suit for redemption of a mortgage. One Muthayya Thevar mortgaged items 1 to 6 of the plaint schedule with one Krishna Iyengar who in his turn mortgaged items 1 to 7 in respect whereof he had the mortgage right and item 7 which belonged to him absolutely to the defendant under a deed of mortgage dated 7 June 1904. At a rent sale the plaintiff purchased a portion of item 3 and took symbolical delivery of the same subject to the mortgage in favour of the defendant. Then the plaintiff called upon the defendant to take a proportionate amount of the mortgage or allow him to redeem the entire mortgage (by payment of the entire mortgage amount). The defendant declined to accede to either of the courses suggested by the plaintiff. Then the plaintiff filed O.P. No. 28 of 1927 on the file of the District Munsif's Court of Ramnad and deposited a sum of Rs. 600, the amount which according to him was payable under the deed of mortgage in favour of the defendant and asked for delivery of possession of the properties but the defendant declined to receive the amount deposited in Court and the said amount still remains in the Court. One of the defences raised by the defendant was that on 10 June 1912, eight years subsequent to the mortgage in his favour, item 7 was purchased by him from Krishna Iyengar under a sale deed dated 10 June 1912 and the plaintiff cannot claim redemption of it. In pursuance of this objection the plaintiff expressed his willingness to give up his claim in respect of item 7. The defendant filed an application to implead Krishna Iyengar's widow Lakshmi Ammal as party defendant being the person interested in the other items of the mortgaged property. But the Court dismissed the application on the opposition of the plaintiff.

(2.) The main defences of the defendant are that the plaintiff is not entitled to redeem all the items even on payment of the entire mortgage amount and that Lakshmi Ammal and her son are necessary parties to the suit. The learned District Munsif negatived both the contentions and held that the plaintiff would be entitled to redeem items 1 to 6 upon payment of the proportionate share of the mortgage amount chargeable thereon, and that Lakshmi Ammal and her son were not necessary parties to the suit. This decision was confirmed on appeal by the learned Subordinate Judge. Mr. Bhashyam Iyengar on behalf of the defendant has raised two contentions before me: (1) the integrity of the mortgage having been broken by the defendant having purchased item 7, the plaintiff is not entitled to redeem the entire mortgage property on payment of the mortgage amount but is entitled to redeem the item purchased by him on payment of a proportionate part of the mortgage amount, and (2) the suit is bad for non-joinder of Lakshmi Ammal and her son, the representatives of the mortgagor Krishna Iyengar. In regard to the first contention Mr. Bhashyam Iyengar relied on Section 60, T.P. Act, and on the decision of this High Court in Ganapathi Bhatta V/s. Beeru Bhandary . The general rule is that a mortgage is indivisible and that where more than one person is interested in the mortgaged property or where more properties than one are comprised in the mortgage, the mortgagee is entitled to insist on redemption of the entire mortgage and neither the mortgagor nor any one of the mortgagors is entitled to redeem his share or a portion of the mortgaged property on payment of a proportionate amount. Section 60 engrafts an exception in cases, 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.) But that section does not say that if the mortgagor desires to redeem the entire mortgaged property he will be precluded from doing so. The recent decision of the Privy Council in Yadalli Beg V/s. Tukaram AIR 1921 PC 125 makes this position clear. In that case 16 fields were mortgaged in 1893. In 1896 the mortgagor sold one of the fields. Then in 1899 the mortgagee brought a suit to foreclose the mortgage without making the vendees of the one field sold by the mortgagor parties. A compromise decree was arrived at in that suit in and by which it was agreed that the mortgagor should pay certain amount within a particular period and in default nine fields of the mortgaged property including the field sold away by the mortgagor in 1896 should be foreclosed and the mortgagee should be put in possession; and the decree ran "that the defendant mortgagor should stand absolutely debarred and foreclosed and from all equity of redemption in and to the mortgaged premises." The vendees of the field sold in 1896 brought a suit claiming to redeem the nine fields which had been foreclosed. The Subordinate Judge was of opinion that the vendees were not entitled to redeem the whole property but only the field purchased by them on payment of the proportionate amount of the mortgage amount but this decree was reversed by the Judicial Commissioner who held that the vendees were entitled on payment of the entire mortgage amount to redeem the nine fields and accordingly directed the necessary amounts to be taken. This decision was confirmed in appeal by their Lordships of the Privy Council. Dealing with the argument regarding partial redemption their Lordships observe as follows: The only question that arises is whether they are entitled to redeem the whole of the nine fields, or only the field conveyed to them subject to the mortgage over the whole. According to English Law the respondents would have been entitled to redeem the mortgage in its entirety subject only to the safeguarding of the equal title to redeem of any other person who had a right of redemption, a point which has not arisen so far in the present case. The respondents, being transferees of part of the security, by English Law, if it applied, would on the one hand be entitled to redeem the entire mortgage on the properties generally, and correlatively could not compel the mortgagee to allow them to redeem their part by itself. This would be so as the result of principle unless something had happened which extinguished the mortgage in whole or in part, such as an exercise of a power of sale originally conferred on the mortgagee by his security or such conduct on the part of the transferees as would estop them from asserting what normally would have been their right. Nothing of this kind is alleged in the case before their Lordships.