Mirza Yadalli Beg vs Tukaram and another

Viscount Haldane, J.

The relevant facts in this case can be briefly stated. In 1893 the owner of sixteen fields in Berar mortgaged them to the appellant. In 1896 the mortgagor conveyed one of these fields to the respondents. In 1899 the appellant brought a suit against the original mortgagor alone to enforce the mortgage, and obtained a decree by consent. Under this decree (which was afterwards made absolute) in default of payment within a definite time, nine of the mortgaged fields, including that conveyed to the respondents, were to be foreclosed and to be handed over in possession to the appellant. The respondents not having been made parties to the suit were not affected by it. The appellant went into possession. He kept no accounts. The Officiating Judicial Commissioner in the Central Provinces, Berar Jurisdiction, has decided that the respondents as owners of an interest in the equity of redemption as it originally stood, an interest which although only fractional remains undisturbed, are entitled to redeem the mortgage on the footing of paying the balance left of the mortgage debt after debiting the mortgagee with a fair occupation rent during the period of his possession, and crediting him with simple interest on the debt due to him under the mortgage deed. If the respondents have the right to redeem the entirety, their Lordships think that this direction as to the form of account was right. 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 mortgage 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.

The Judge in the original Court thought that the decisions of the Courts in India had established that one of several mortgagors cannot redeem more than his share unless the owners of the other shares consent or do not object. Subject to proper safeguarding of the rights to redeem, which these owners may possess, their Lordships are of opinion that this is not so in India any more than in England. The decisions referred to, when scrutinised, turn out to be based not on any general principle different from that adverted to, but on the special circumstances of the transactions to which they related, circumstances which have nothing analogous to them in the facts now under review. It need only be added on this point that the right to redeem in the present case is not affected, as was suggested, by the concluding part of section 60 of the Transfer of Property Act 1882, which is as follows :-

"Nothing in this section shall entitle a person interested in a share only of the mortgaged property to redeem his own share only, on payment of a proportionate part of the amount remaining due on the mortgage, except 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."

This did not apply to Berar at the time the foreclosure decree was made in 1900, and moreover, if it had applied, it would have done no more than declare applicable what is just the law as established in England. Their Lordships agree with the view taken by the Officiating Judicial Commissioner on appeal, and they see no reason to alter the decree which he has made.

They will humbly advise His Majesty that this appeal should be dismissed.