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Judgment
Iqbal Ahmad, J.—This is a defendant''s appeal and arises out of a suit for sale on a mortgage, dated the 7th of October, 1911. It appears that the plaintiff-respondent held a prior usufructuary mortgage over the property which was mortgaged under the mortgage-deed in suit. One of the pleas taken in defence was that as the plaintiff held a prior usufructuary mortgage with respect to the property mortgaged under the deed of simple mortgage now put into suit "the suit for the sale of the equity of redemption was not maintainable".
This plea found favour with the trial Court and it accordingly dismissed the plaintiff''s suit. On appeal by the plaintiff the lower appellate Court has overruled the defendants plea noted above and has passed a decree in the plaintiff''s favour.
The sole ground taken in appeal before me is that the lower appellate Court was wrong in granting a decree to the plaintiff-respondent for sale of the mortgaged property subject to the usufructuary mortgage of the plaintiff herself. In my judgment there is no force in the contention advanced on behalf of the defendant-appellant.
A usufructuary mortgagee cannot in view of the provisions of Section 67(a) of the Transfer of Property Act, institute a suit for sale on the basis of a usufructuary mortgage, and as such obviously the plaintiff could not join a claim on the basis of the usufructuary mortgage with a claim for sale on the basis of a subsequent simple mortgage. By the simple mortgage all that was mortgaged to the plaintiff was the equity of redemption vested in the mortgagor. That equity of redemption is saleable has now been definitely settled by this Court by the decision in Ram Shanker Lal v. Ganesh Prasad [1907] 29 All. 385. The facts of the present case are in all respects similar to the case of Udai Chand v. Nagina Singh [1919] 50 I.C. 40 and in that case it has been held that
a person having a usufructuary mortgage and a subsequent simple mortgage on the same property can maintain a suit for sale of the property on the basis of his simple mortgage subject to his prior usufructuary mortgage.
In view of these decisions the plea taken in the memorandum of appeal is untenable and I dismiss the appeal with costs.