Tarkeshwar vs Kalka Pathak and Others

Daniels, J.—This appeal involves one short point. The suit was one for redemption of a mortgage of 7th May 1876. The defendants asserted that it could not be redeemed without the plaintiffs redeeming at the same time a tacking mortgage of 12th August 1891, which contained a condition that the Mortgagor would not redeem it without at the same time redeeming the earlier mortgage. The trial Court gave effect to this defence. The lower appellate Court has rejected it on the ground that whereas the original mortgage was executed by two persons Kalka and Lokhai the mortgage of 1891 was executed by Kalka alone. This view has the support of the Bench ruling in Muhammad Husain v. Sheodarshan Das [1907] 4 A.L.J. 176. The principle is that one mortgager by executing a tacking bond cannot affect the rights of his co-mortgagors to redeem the original mortgage. The appellant seeks to distinguish this ruling on the ground that the co-mortgagor Lokhai was dead when the second mortgage was executed, but this distinction does not really affect the matter as the plaint itself shows that Lokhai had left a son who is a party to this suit. The decision of the Court below is, therefore, correct and I dismiss the appeal with costs including fees on the higher scale.