DELANSINGH GANPATSINGH Vs. DARBARILAL MOOLCHAND

JUDGEMENT

(1.) ONE Mulchand, the predecessor. In-title of respondents 1 to 4, namely Darbarilal, Nanhelal, Hiralal and Kanhaiyalal, had obtain, ed a preliminary decree for foreclosure against defendant-appellant 1 Delansigh in respect of -/1/- anna village share of Bhajia, Thereafter Delansingh sold half of his share, i.e. -/-/6 pies share, in the hypothecated property to one Pulandarsingh, and on the application of respondents 1 to 4 the purcharser Pulandarsingh was brought on record as defendant 2. They later on released the share purchased by Pulandar singh on receipt of Rs. 50 in all from him and subsequently obtained a final decree for foreclosure for the decretal amount against the remaining half share in the possession of Delansingh. Delansingh, therefore, filed an appeal before the Additional District Judge, Saugor, contending that the act of release of the share sold to Pulandarsingh would justify partial redemption as to the rest, and as the decree-holders had already received payment of the decretal amount proportionate to the remaining share no foreclosure decree ought to have been passed against him so far as the half share in his possession was concerned.

(2.) THE last paragraph of Section 60, T.P. Act is, however, a complete answer to his objection. That paragraph lays down that it is only where a mortgagee has acquired, in whole or in part, the share of the mortgagor that a person interested in a share only of the mortgaged property would be entitled to redeem his share only on payment of a proportionate part of the amount remaining due on the mortgage. Mulla in his Transfer of Property Act (2nd Edn. 1936 at page 866) remarked: In the last paragraph the word 'only' has been inserted to overrule cases which have erroneously held that a surrender by a mortgagee of a part of his security destroys the integrity of the mortgage, and justifies partial redemption. Dr. Gour in his Law of Transfer (7th Edn. Vol 2 at page 995 in paragraph 1591) says: The addition of the word 'only' in the last paragraph was added (made) to overrule a Bombay decision in which the Court, in spite of the provisions of this section construed as in exhaustive, had permitted piecemeal redemption merely because the mortgagee had released some of the mortgaged properties from his mortgage. The amendment makes it clear that the indivisibility of a mortgage cannot be broken except only in the case when a mortgagee acquires a share in the mortgaged property. Even before this insertion of the word 'only' in the last paragraph the Full Bench of the Madras High Court in Perumal Pillai v. Raman Chettiar A.I.R. (5) 1918 Mad. 1030, had held 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.

(3.) THE learned Counsel for the appellant then complained that his right to claim contribution from the purchaser Pulandarsingh under Section 82, T.P. Act would be prejudiced by this act of the respondents of releasing the share of the property sold to him. The sale deed is not on record and the terms of the sale are not known. So the purchaser Pulandarsingh's liability to contribute cannot be determined, nor is it necessary for me to do so in this case. I may only quote here what the learned author Mulla has observed on the point in his Transfer of Property Act (2nd Edn. 1936 at page 490): If the mortgagor sells part of the mortgaged property and retains part, and the mortgage debt is realized by the sale of the part retained by the mortgagor, the mortgagor's share cannot claim contribution. The reason for this is clear, for the mortgagor who has sold shares to others cannot derogate from his grant by calling upon the others to contribute to the discharge of the mortgage. But if the mortgagor has sold only the equity of redemption of part of the property, his vendee is in the position of a co-mortgagor and the mortgagor can claim contribution against him. This question of contribution would be, however, a matter between the appellant Delansingh and the purchaser Pulandarsingh and it has nothing to do with respondents 1 to 4. The cause of action being different the appellant Delansingh will have to file a separate suit for it.