Amirchand and Others vs Moti Pande and Others

Wort, J.—This case comes before me after remand. The action was an action for possession and the real controversy in the case was whether a subsequent mortgage which was dated 24th July 1915 with regard to a part only of the property was a genuine transaction or not. I should say that by a mortgage dated 14th January 1909 in favour of the plaintiffs the whole of the property had been mortgaged to the plaintiffs and subsequently, after a mortgage suit, they had purchased the property, that is to say, on 9th June 1924. It is unnecessary to state what the case was before this Court when it came on appeal and it is sufficient to observe that by my order of remand I stated that if it were found that the rehan transaction, that is the transaction of 24th July 1915, was a genuine one the defendants would have a right to redeem but I further stated that this question would also be determined by the Subordinate Judge. I do not think that there can be any doubt that in stating that the defendants would have a right to redeem I was not stating more than the bare rights of the defendants and I was not attempting to set out in detail exactly what the rights of the two parties were with regard to the matter of redemption and indeed, as I have already pointed out, I stated that that was a matter which also had to be settled by the Subordinate Judge.

The plaintiffs came in appeal and their contention is, in the result at any rate, that the defendants have a right to redeem their portion only of the mortgaged property. The case relied upon are Yadalli Beg v. Tuka Ram AIR 1921 P.C. 125. Lord Haldane in delivering the opinion of the Judicial Committee of the Privy Council had stated that as general principle of law a person in the position of the defendant in this action had a right to redeem but he could not force the mortgagee to allow him to redeem his portion only. But it was pointed out that the exception to that was where the integrity of the mortgage security had been broken up. It is contended by Mr. Sushil Madhav Mullick in this case that that is exactly what has happened. The position is this. The defendants were the mortgagees, as I have already pointed out, under a rehan bond the genuineness of which has now been established. The mortgagor as regards that rehan bond had a right to redeem that portion of the mortgaged property. As regards the mortgage of the plaintiffs they undoubtedly had a right to redeem the whole of the property. Now the plaintiffs come along and say that what they purchased was all the rights which their mortgagor had in respect of the property. They are (1) the right to redeem as against themselves the plaintiffs; and (2) the right to redeem as against the defendants. It is contended by Mr. Sinha who appears on behalf of the respondents that when Lord Haldane was expressing the opinion of the Judicial Committee of the Privy Council and using the expression "any other person" that he meant the parties other than the parties to the suit. The statement to which I refer is this:

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.

It is contended by Mr. Sinha as I have just stated that when Lord Haldane used the expression "any other person" he meant a person other than those who were parties to the action; but in the light of the authorities in this Court it seems difficult to construe the judgment in these terms. I need only refer to three cases. One is the case of Promotha Nath Mitter and Others Vs. Ram Kishan Singh, , Mt. Azizunnissa Vs. Komal Singh and Others, and Sheo Narain Sahu v. Ram Nirekhan Ojha [1919] 52 I.C. 512. The last, it is true, is a decision of a Judge sitting singly but there the circumstances were almost precisely the same as in the case before me, the only difference being that whereas in this case it is a question of two mortgages in that case it was a mortgage on the one hand and a purchase on the other but in principle of course no difference is made. The learned Judge however in deciding that case has treated it as an exception to the general rule that a person in the position of the defendant in this case had a right to redeem the whole and no right to redeem, as against the mortgagor, his part only on the ground that the integrity of the mortgage security had been broken up. It is contended in this case, as I have already pointed out, by Mr. Mullick that the integrity of the mortgage security is broken up.

The most important of the three cases to which I have referred other than that before the Judicial Committee of the Privy Council is the case of Mt. Azizunnissa Vs. Komal Singh and Others, in which the respective rights of the purchaser and the mortgagees'' rights on the one hand and the mortgagee on the other was worked out in the way I shall indicate. In indicating that way I shall refer to the respective rights of the parties. In the first place the plaintiffs undoubtedly had a right to redeem. In the second place the defendants in this action also had a right to redeem. According to the judgment of my learned brother Kulwant Sahay in the case to which I have referred the defendants in this case before me would have a right to redeem only that portion of the property which was the subject-matter of their mortgage.

It is contended by Mr. Sinha on behalf of the defendants that as the real issue in the case was the genuineness of their rehan bond and the case depended on that only and that it was a case for possession and that only, that the least that ought to happen in the case is that the action should be dismissed. Technically I think Mr. Sinha is right but this has to be noticed that, as I have already pointed out, it was the contention of nobody in the trial Court that anybody had a right to redeem. It was an order made by me in order to do justice between the parties and in order to prevent further litigation, I think the respective rights of the parties should be worked out in this action, it once having been determined what are the actual facts of the case. This has been determined and no question arises thereon.

In the result the defendants will have a right to redeem their portion of the mortgaged property only and the case must go back through the Subordinate Judge to the trial Court to work out the account and to pass the usual decree for redemption. There will be no costs of this appeal by reason of the fact that this question of redemption was not raised originally in the suit. Leave to appeal is not granted.