FAKIR CHAND Vs. BABU LAL

JUDGEMENT

(1.) THE main point for determination in this second appeal is a simple question of law. THEre was a mortgage in favour of the plaintiff appellant of a certain house, by two joint owners of the same, the aforesaid owners being, according to the recital in the mortgage deed, owners of equal shares and each of them in possession of his own share. One of these mortgagors subsequently sold his one- half share to the present respondent, Musammat Lachmi Kunwar. THE latter thereupon deposited in court, for payment to the mortgages,, under Section 83 of the Transfer of Property Act (No. IV of 1882), what has been found to have been the full amount due on the mortgage, both principal and interest. THE mortgagee refused to accept this deposit, although he suggested that he would have no objection to allowing Musammat Lachmi Kunwar to redeem one-half of the house upon payment of one-half of the mortgage debt.

(2.) THE deposit having been refused by the mortgagee, the court could take no further action, pending the institution either of a suit for redemption or of a suit for sale on the mortgage. Musammat Lachmi Kunwar subsequently acquired the remainder of the equity of redemption and this suit has been brought against her for sale on the mortgage. THE courts below have decreed the claim, subject, however, to the enforcement of the penalty imposed on the mortgagee by Section 84 of the Transfer of Property Act. THE real question is whether Musammat Lachmi Kunwar, as owner of one-half of the mortgaged property, was not merely compellable at the option of the mortgagee to redeem the entire mortgage, but was entitled to do so, whether the mortgagee liked it or not. THEre is authority for the appellant in a decision of the Calcutta High Court, Girish Chunder Dey v. Juraimoni De (1900) 5 C.W.N. 83. That decision purports to found itself upon a pronouncement of their Lordships of the Privy Council in a case reported in 13 Moor s Indian Appeals at page 415. We have examined that report and it does not seem to us to bear the construction put upon it by the learned Judges of the Calcutta High Court. On the other hand, in the case of Norender Narain Singh v. Dwarka Lal Mundur (1877) L.R. 5 I.A. 18 (27), their Lordships have laid down in unqualified terms that each and every one of the mortgagors who owned separate shares in certain mortgaged property was not merely interested in the payment of the mortgage money and the redemption of the estate, but "had a right by payment) of the money to redeem the estate, seeking his contribution from the others." THE Madras High Court has interpreted and applied this dictum in cases very similar to the present, in which the owner of a portion only of the equity of redemption has been permitted to maintain a suit for redemption of the entire mortgage even against the will of the mortgagee; vide I.L.R. 22 Mad. p. 209 and 15 Indian Cases, page 605, THE same view has been taken by the court in Oudh; vide Mustafa Khan v. Shadi Lall 1907 10 Oudh Cases 81 (84) : and 21 Indian Cases 251. In our opinion the balance of authority is in favour of the view taken by the courts below, and on the wording of Sections 83 and 84 of the Transfer of Property Act itself this would seem to be the effect of the statute construed according to its plain meaning. THE only other question raised in this appeal is as to costs. On this point we think it sufficient to say that the orders of the courts below were within their discretion and that we are not satisfied that good cause is shown for interference. THE result is that the appeal fails and is dismissed with costs.