(Kaniyur) Ganapathi Bhatta vs Beeru Bhandary and Others

The plaintiff''s suit is for the redemption of a usufructuary mortgage executed by two brothers, Kesava and Krishna, on 2nd February 1883 for

Rs. 5000. The plaintiff has purchased the equity of redemption from Kesava. The defendants have purchased from Krishna his share of the equity

of redemption in the suit properties. The District Judge has given a decree to the plaintiff for the redemption of half the property and has allowed

the defendant to consolidate the mortgage with a simple mortgage by Kesava. The plaintiff has preferred this second appeal.

The first point raised by Mr. Sitarama Rao for the appellant is that the District Judge should have allowed redemption of the whole of the

property as a partial redemption is opposed to the provisions of the Transfer of Property Act. The finding is that the defendants have acquired the

interest of Krishna in the equity of redemption. This finding is challenged by Mr. Sitarama Rao on the ground that defendants 1 to 3 have acquired

the equity of redemption in respect of one of the properties and defendants 4 to 6 have acquired the equity of redemption in respect of the other

item. The mortgage was with regard to two items of property only.

The question is whether the defendants have acquired the right of one of the mortgagors in all the properties mortgaged. It is immaterial whether

the acquisition of the mortgagor''s right was piecemeal or whether the acquisition was under one document.

If the mortgagee or mortgagees has or have acquired in whole or in part the share of the mortgagor the provisions of the exception to the last

clause of Section 60, Transfer of Property Act, will apply. The clause is in the following terms:

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 the mortgagee, or if there are more mortgagees than one, if such

mertagee or mortgagees has or have acquired in whole or in part the share of the mortgagor.

Defendants 1 to 6 have acquired the interest of the mortgagees. They have also acquired the interest of one of the mortgagors, that is, the

interest of Krishna. The plaintiff is not, therefore, entitled to ask for the redemption of the whole of the mortgaged property seeing that he has

acquired only the interest of Kesava. The facts of this case bring it within the exception already mentioned. But it is urged that the law is against a

partial redemption and, therefore, the plaintiff should be allowed to redeem the whole of the property and .the defendants should bring a suit for

their half-share of the property. This contention is based on the ground that Krishna could not under the Hindu law alienate any specific portion of

the joint family property and, therefore, those who have acquired the right to his share could only bring a suit for partition of the whole of the family

property and in that partition their rights should be worked out. If it were a mere alienation of the family property by one of the members of a joint

Hindu family, no doubt the alienee would not be able to get possession of the specific items alienated to him. But here the question is complicated

by the fact that both the members of the joint family made an alienation by way of mortgage of specific items and one of thorn sold his share of the

equity of redemption. In these circumstances, the question is whether the Court would not be justified in allowing the defendants to retain one-half

of the property and in decreeing the plaintiff only partial redemption of the half-share of Kesava. The plaintiff acquired the right to the equity of

redemption of Kesava knowing full well the facts of the case. There is evidence to show that Kesava knew that the defendants had acquired the

rights of the mortgagee and also the share of Krishna to the equity of redemption. Could the plaintiff, who has only acquired the interest of one of

the members of the joint family have insisted upon being given possession of the specific items? It is difficult to see how the plaintiff stands in a

better position than the alienee from the other brother. If the strict rule of Hindu law is to be applied the plaintiff would have to sue for partition of

the property and in the partition the equities between the parties will have to be adjusted. This argument is met by the contention that Kesava being

the managing member of the family has alienated the whole of the property and, therefore, the plaintiff stands in a better position than the alienee

from Krishna. The contention overlooks the fact that Kesava could not alienate what he did not possess. The right to the share of Krishna having

already been alienated to third persons Kesava could not give a title to the plaintiff in respect of Krishna''s share and, therefore, the plaintiff does

not stand in a better position than the alienees from Krishna. In such a case as this where the circumstances are such that it would lead to

unnecessary litigation by granting the relief asked for by the plaintiff, the Court is not debarred from considering the equities in the case, and in

order to avoid multiplicity of suits and unnecessary litigation, from granting only such relief as the equities of the case would justify without in any

way prejudicing the right of the parties.

Mr. Sitarama Rao relies strongly on Vadalli Beg v. Tukaram A. I. R. 1921 P. C. 125 in support of his contention that the ''District Judge was

wrong in decreeing partial redemption. The facts in that case were: in 1893, A mortgaged 16 fields in Berar to B. In 1896 A conveyed one of the

fields to C and others. In 1899 B brought a suit against A alone to enforce the mortgage and obtained a decree by consent. As A made default in

payment within the time fixed, nine of the fields were foreclosed and possession was handed over to B. C and others, not having been made

parties to the suit were not affected by it, and they brought a suit for the redemption of the items. The Privy Council held that there could be no

partial redemption, and that C and others who had acquired the equity of redemption to one of the fields were entitled to redeem all the nine fields.

Viscount Haldane, in delivering the judgment of their Lordships, observed:

The only question that arises is whether they are entitled to redeem the whole of the nine fields or only the fields conveyed to them subject to the

mortgage of the whole. According to English Law the respondents would have been entitled to redeem the mortgage in its entirety, subject only to

the safe-guarding of the equal title to redeem of any other person who had a right of redemption, a point which has not risen 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 and could not compel the mortgagee to allow them to redeem their part by itself... The

Judge in the original Court thought that the decisions of the Courts in India had established that one of the 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.

This decision does not govern the present case as the defendants have acquired the right of the mortgagors to the mortgaged property. The

decision of the Privy Council case would have been different if the persons who resisted the redemption had acquired in whole or in part the right

to the equity of redemption from the mortgagor.

The decision in Velayudan Chetty Vs. Alangaram Chetty and Others, affirms the principle that there cannot be a partial redemption except in

cases where the mortgagee or mortgagees, where there are more than one, has or have acquired in whole or in part the share of the mortgagor.

Mr. Adiga, for the respondents, relies upon Ratna Mudali v. Perumal Reddi [1912] 38 Mad. 310 in support of his contention that the Court

could decree partial redemption of a mortgage. The learned Judges who decided the case have laid down the principle too broadly. It is not open

in all cases for the Court to decree partial redemption. It is unnecessary to canvass the correctness of this decision in the view we take of the facts

of this case. It was not followed by a Bench of this Court in Deynan Kunhathumma v. P. Avulla A. I. R. 1925 Mad. 351.

In support of the contention that the defendants can only bring a suit for partition in order to enforce their right to the properties, and they are

not entitled to be given half the share of the specific items mentioned in the plaint, Nanjaya Mudali v. Shunmugha [1914] 38 Mad. 684 is relied

upon. In that case Sankaran Nair and Bakewell, JJ., held, after an examination of various cases that

where a co-parcener alienates his share in certain specific family properties the alienee does not acquire any interest in that property, but only an

equity to enforce his rights in a suit for partition to have the property alienated set apart for alienor''s share if possible. And the alienee cannot sue

for partition and allotment to him of his share of the property alienated.

In Balabadra Patro v. Khetra Dass [1917] 31 M. L. J. 275 it was held that an alienee from a member of a joint Hindu family is not entitled to

possession of the alienee''s share as a tenant-in-common. His only right is to obtain by a suit for partition, the share to which his alienor is entitled.

If a member of a joint Hindu family alienates any specific item belonging to the family the alienee is not entitled to possession of that property nor

can he sue for partition of that property alone, A suit for partition must comprise all the property of the family which is capable of division but here

both the brothers alienated by way of mortgage specific items. The mortgagees were entitled to be in possession of those items. One of the

mortgagors afterwards sells his share in those items and the other co-parcenary is aware of such alienation and then alienates his share in favour of

the plaintiff. In such circumstances the alienee from one sharer cannot insist upon his getting possession of the specific items. The law applicable to

mortgages should be applied in cases of this kind and not the strict rule of Hindu law which is against the alienee of a specific item of property from

one co-sharer, claiming to be in possession of that property. The principle of the decision in Subba Rao v. Saravarayudu A. I. R. 1923 Mad. 533

can be applied to this. Though the facts of that case are different from the facts of this, yet the course adopted by the learned Judges in that case

commends itself to us. We hold that the learned District Judge was right in decreeing the plaintiff partial redemption.

The next point urged is that the defendants are not entitled to consolidate the usufructuary mortgage with the simple mortgage executed by

Kesava alone. The rule as to the consolidation is applicable to Indian mortgages provided the mortgagee and mortgagor of both the mortgages

sought to be consolidated are the same and the property mortgaged is also the same. There can be no consolidation of two mortgages if the

properties mortgaged are different. This is clear from the illustration to Section 61, Transfer of Property Act. The mortgagor also should be the

same. If A mortgages his share in one item of property and B mortgages his share of the same items to the same mortgagee, though the mortgagee

may be the same and the property mortgaged may be the same the mortgagee is not entitled to insist upon A paying the whole of the mortgage

amount due on the two mortgages before he can redeem the property. And conversely, if A mortgages the same property to B and then to C,

unless B acquires the rights of C in the second mortgage he cannot insist upon A redeeming both together. The second mortgage was a simple

mortgage by Kesava to defendant 1. Defendants 4 to 6 are not interested in the mortgage. Therefore there can be no consolidation of the

usufructuary mortgage with the simple mortgage. It is unnecessary to refer to any decision on this point as Section 61, Transfer of Property Act, is

quite clear. In the result the decree of the District Judge will be modified by disallowing the claim of the defendants to the consolidation of the

mortgage under Ex. X with the usufructuary mortgage sought to be redeemed. With this modification of the lower Court''s decree I dismiss the

appeal without costs. The memorandum of objections is dismissed without costs.