Birinchi Singh vs Sarado Prasad Mukherji and Others

Facts.--The plaintiff brought an action to recover possession of the property in dispute on the strength of his purchase at an auction-sale in 1917.

One Ramal Misser had 10 kathas of land within the Municipality of Bhagalpore. He and his sons are defendants second party in this case. He mortgaged the property to Sarado Prasad, the defendant first party, on the 8th January, 1900. This mortgage was satisfied and we are no longer concerned with it.

Ramlal mortgaged the said property again to Sarado Prasad on the 14th December, 1902. In 1912 Ramlal sold 4 kathas out of the aforesaid 10 kathas to Sarado Prasad for Rs. 400 which was found due to him upon his mortgage-bond. In the sale-deed his right under the mortgage of the 14th December, 1902, was kept alive and was not extinguished. In the meantime, on the 20th June, 1907, Ramlal mortgaged his entire 10 kathas to Chunilal Marwari and Chunilal obtained a mortgage decree and put the property to sale. The plaintiff Birinchi Singh purchased this property at the auction-sale held in execution of the aforesaid mortgage. He, therefore, could not obtain possession of the property on account of an objection having been raised by Sarado Prasad. He, therefore, instituted the present suit for recovery of possession.

Jwala Prasad, J.

[His Lordship after stalling facts as set out above proceeded.]

His contention now is that he has a right to redeem the mortgage of Sarado Prasad, dated the 14th December, 1902. The Courts below have held that Chunilal knew of the mortgage of Sarado Prasad, dated the 14th December, 1902, inasmuch as he was a party to the suit on the mortgage of Sarado Prasad for the enforcement of his mortgage of the 8th June, 1907, and in that suit it was stated that Sarado Prasad had a second mortgage of the 14th December, 1902. Sarado Prasad should, therefore, have been made a party in the mortgage suit brought by Chunilal. His rights, therefore, under the mortgage of the 14th December, 1902, were not affected. He occupied two positions, first, that of a mortgagee under his mortgage of the 14th December, 1902, which was prior to the mortgage of Chunilal in the enforcement of which the plaintiff purchased the property in question, and, secondly, he was purchaser of the 4 kathas out of the 10 kathas under his kabala of 1912. His right to redeem the mortgage of Chunilal with respect to the 4 kathas purchased by him was, therefore, not extinguished. Ghunilal had made Ramlal a party to his suit, but Ramlal had lost all interest in the 4 kathas inasmuch as he had disposed of it in favour of Sarado Prasad. With respect to 4 kathas, therefore, Sarado Prasad was the owner thereof at the time when the mortgage suit of Chunilal was brought. He was, therefore, interested in the redemption of Chunilal''s mortgage and, not having been made a party, no opportunity was given to him to redeem. This view is supported by the oases of Hassanbhai v. Umaji (1903) 28 Bom. 153, Umes Chunder Sarkar v. Zahur Fatima (1890) 18 Cal. 164, Het Ram v. Shadi Ram (1918) 40 All. 407, and Parasram Singh v. Pandohi 1922 All. 135. The last mentioned case is the latest case on the subject being of February, 1922.

Mr. Jha on behalf of the appellant relies on the Privy Council decision of the case of Ganpat Lal v. Bindbasini Prashad Narayan Singh (1920) 47 Cal. 924. Upon this decision he contends that the right of redemption, if any, possessed by Sarado Prasad defendant first party, was extinguished after the sale of the property in execution of which the plaintiff had purchased it. In that case the mortgage-decree was obtained on foot of a mortgage executed by the father of a joint Mitakshara family, his sons having not been made parties. The mortgage-debt was admitted to be for family necessity and in fact the sons never disputed their liability either under the mortgage or the decree.

The question, therefore, for determination in that ease was whether the interest of the sons in the family property passed by the sale in execution of the mortgage-decree obtained against the father alone. In the circumstances of that case referred to above it was held that the sale of the property passed the interest of the sons also. That case was decided upon the principle of representation and it was upon that principle held that the son''s right of redemption was extinguished with the extinction of the father''s right and that, unless the sale was set aside upon fresh grounds, the sons could not resist the possession of the purchaser in execution of the mortgage-decree.

Now, in the present case Sarado Prasad, defendant first party, is an out and out purchaser of the interest of Ramlal in the 4 kathas of the land in dispute. Sarado Prasad, therefore, could not represent him in the mortgage-suit brought by Chunilal. There was no question of representation and Sarado Prasad was, therefore, entitled to be made a party and thus to be given an opportunity to redeem the mortgage of Chunilal.

The sale in the present case has not the affect of extinguishing the right of redemption of Sarado Prasad. His mortgage of 1902 must remain alive until it is redeemed, for once a mortgage always a mortgage.

In the case cited above, Parasram Singh v. Pandohi 1922 All. 135, it is said that

all that the plaintiffs (as in the present case) are entitled to is to get back their mortgage-money. After all, they are merely mortgagees and as such are liable to be redeemed by the owner of the property, that is, the mortgagor or whoever represents him. In this case the prior mortgagees, the defendants, having acquired the equity of redemption, stand in the shoes of the mortgagor and are the owners of the property.

This observation exactly applies to the present case where Sarado Prasad, being the prior mortgagee, purchased privately the equity of redemption of Ramlal with respect to 4 kathas of the land in dispute and became the owner thereof.

Dr. Rashbehari Ghosh, in his book on the Law of Mortgage, at page 625, quotes from Jones in support of the proposition that it is obligatory on the part of the mortgagee to implead all persons interested in the equity of redemption in a suit based on his mortgage. The important passage in the quotation from Jones is as follows:

The sale vests the estate in the purchaser subject to redemption by the person interested in it, who was not made a party to the proceedings. His only remedy, however, is to redeem. He cannot maintain ejectment against the purchaser. He cannot have the sale set aside by intervening by petition in the foreclosure suit. His only right is the right of redemption.

This is a complete answer to the contention of Mr. Jha that the auction-sale in favour of the plaintiff vested the property in him freed from the mortgage in question and that Sarado Prasad ought to have brought a suit against the plaintiff and to have the sale pet aside. Sarado Prasad need not have done any of these things. He is in possession of the property as owner thereof and his right of redemption is not lost and in spite of the purchase made by the plaintiff in execution of the mortgage-decree of Chunilal the right of redemption of Sarado Prasad is not lost. I, however, agree with Mr. Jha that Sarado Prasad has only a right of redemption and cannot resist the possession of the plaintiff unless be redeems the property. Therefore, in the present case it is necessary to declare that the plaintiff will be entitled to get possession of the property unless the defendant first party redeems the plaintiff''s mortgage within three months of the date when the amount due to the plaintiff on his mortgage, in respect of the 4 kathas which was purchased by the defendant first party under his private kabala, is ascertained in the Court below. It must be mentioned that the defendant first party''s prior mortgage of 1902 subsists only as a lien over the 4 kathas and with respect to the 6 kathas it has absolutely no effect, and that the defendant first party has no right to redeem the entire mortgage of the plaintiff so as to be subrogated to his position as mortgagee of the 10 kathas. The defendant first party''s right is confined only to 4 kathas both as prior mortgagee under his mortgage of 1902 and as purchaser under the private kabala, and he has, therefore, to redeem a proportionate share of the mortgage-money due for the 4 kathas. He will, therefore, remain in possession of 4 kathas, the remaining 6 kathas being in the possession of the plaintiff.

With these remarks the appeal is dismissed and the ease will be sent back to the Munsif in order that he may determine the amount due to the plaintiff which the defendant first party has to pay in order to redeem his mortgage.

In the circumstances of the case, each party will bear his own costs.

Ross, J.

I agree.