Mir Wajid Ali and Another vs Alidad Khan and Others

Chatterji, J.—These two appeals arise out of a suit for redemption of four annas share in certain properties described in Schedules 1 and 2 of the plaint. The entire sixteen annas belonged in equal shares to four persons, Eshan Ali, Junab Ali, Kurban Ali and Imdad Ali, of whom the first three were brothers and the fourth was their nephew. These four persons executed an usufructuary mortgage on 26th August 1875 in respect of Schedule 1 properties in favour of Maddey Khan, father of defendants 1 to 4. Again, on 30th June 1877, the same four persons executed another usufructuary mortgage in respect of schedule 2 properties in favour of Maddey Khan. Later in 1877 Kurban Ali''s 1/4th share was released and again in 1907 Imdad Ali''s 1/4th share was released on payment of their respective quotas of the mortgage debt. Similarly, Junab Ali''s 1/4th share was also released and it was subsequently purchased by the mortgagee.

Thus the mortgage was left only with respect to the four annas share of Eshan Ali. After Eshan Ali''s death, some of his sons dispossessed the mortgagee from some of the mortgaged plots. The mortgagee then brought a suit for recovery of possession against those sons and obtained a decree with costs. The decree for costs was put in execution in Execution Case No. 80 of 1881 in which the mortgagee purchased the entire four annas share of Eshan Ali in April 1881. On 10th April 1920 the plaintiffs of whom No. 1 is a grandson and No. 2 is a great-grandson of Eshan Ali deposited 4th share of the mortgage money under the provisions of Section 83, T.P. Act; but the mortgagee appeared and denied the right of the plaintiffs with the result that the case was struck off. The plaintiffs brought the present suit for redemption on 9th April 1936. As between them No. 1 claims three annas and No. 2 one anna.

The suit was contested on various grounds but those with which we are concerned in these appeals are that Maddey Khan had purchased the entire share of Eshan Ali in 1881 in execution of his decree for costs and therefore the plaintiffs have no subsisting interest and are not entitled to redeem and that Maddey Khan since his purchase was in possession of the purchased share as a full owner adversely to the heirs of Eshan Ali and therefore acquired a title by adverse possession. There was some dispute with regard to the share of Eshan Ali, but the finding of fact is that he had four annas. It has also been found by the Courts below that Mardan Ali, grandfather of plaintiff 2, was a surviving son of Eshan Ali but he was not a party to the decree in execution of which Maddey Khan purchased the four annas share in 1881 and therefore his interest was not affected by the decree or the execution sale. It has been further found that his interest was one anna which now belongs to plaintiff 2. As regards the remaining three annas share which is claimed by plaintiff 1, the learned Munsif, for reasons which need not be stated, held that the auction-purchase of Maddey Khan was inoperative. In this view he decreed the suit and allowed redemption in respect of the entire four annas. On appeal the learned District Judge, taking a contrary view as to the effect of Maddey Khan''s auction-purchase of the three annas share claimed by plaintiff 1, has held that plaintiff 2 alone is entitled to redeem his one anna share. He has made a decree accordingly. Against that decree these two appeals have been preferred, Appeal No. 5 by the plaintiffs and Appeal No. 17 by defendants 1 to 3.

In the plaintiffs'' appeal No. 5 the only substantial point urged by Mr. Chatterji is that plaintiff 2 not being bound by the proceedings as the result of which Maddey Khan purchased the four annas share in claim, his right as a co-mortgagor to redeem the entire four annas remained unaffected as the mortgage was indivisible. In support of this contention reliance is placed on the decision of this Court in Promotha Nath Mitter v. Ram Kishun Singh AIR (1927) Pat 25 and the decision of the Privy Council in Yadalli Beg v. Tukaram AIR (1921) PC 125. What was held in both these cases was that where a mortgagee obtained a mortgage decree without impleading the purchaser of a portion of the mortgaged properties and in execution of such decree purchased the mortgaged properties, it was open to the purchaser who was omitted from the mortgage suit to sue for redemption of the entire mortgage. The principle underlying these decisions is well settled.

Where the mortgagee brings a suit omitting a necessary party and obtained a decree and purchases the mortgaged property in execution thereof, the mortgage decree and the execution sale are of no effect as against the person who was not impleaded in the mortgage suit, and he is entitled to treat the entire-mortgage as subsisting and can therefore ask for its redemption in its entirety. The position is quite different where the equity of redemption of some of the mortgagors has been effectively sold and purchased by the mortgagee himself, at a private sale or in execution of a money decree.

In the present case the mortgagee in execution of a money decree validly purchased the equity of redemption with respect to a three annas share out of the four annas in question. Plaintiff 2 can on no account object to the decree or the execution sale so far as the three annas share is concerned. It is not open to him to contend that he is entitled to treat the entire mortgage of the four annas as still subsisting. The effect of the mortgagee''s purchase of the three annas, share was to wipe out the equity of redemption in respect of that share. The mortgage cannot be said to be subsisting so far as that share is concerned.

In the Privy Council case in Khiarajmal v. Daim (1905) 32 Cal 296 though the facts were peculiar and somewhat different, their Lordship held that where the shares of some of the mortgagors were effectively sold and purchased by the mortgagee in execution of decrees the equity of redemption with respect to those shares was extinguished and redemption of those shares could not be claimed by the other mortgagors whose interests were unaffected by the decrees or the execution proceedings.

In that case the plaintiffs sued for redemption of two usufructuary mortgages of 1878. The defence inter alia was that the mortgagees had purchased the mortgaged properties in execution of two decrees and therefore the plaintiffs had no subsisting right of redemption. One of the decrees was a simple money-decree and the other was obtained by one of three mortgagees under an earlier mort-gage of 1874 in a suit for recovery of his share of the earlier mortgage debt. It is not clear whether the latter decree was regarded as a mortgage decree or was enforced as such.

It was found as a fact that some of the mortgagors or their representatives were not parties to the decrees or the execution proceedings in which the mortgagees'' purchased the properties and therefore their interests were not affected by the execution sales. The first Appellate Court allowed redemption of the entire mortgages though the plaintiffs, rather some of them, were found to be interested in certain shares only of the mortgaged properties. Their Lordships of the Judicial Committee reversed that decree holding that the plaintiffs were not entitled to redeem the shares of those persons who were parties to the decrees or the execution proceedings and accordingly their Lordships allowed redemption only in respect of those shares which were found not to have passed by the execution sales. Though the question of indivisibility of a mortgage was not expressly raised in the case, the principle on which the decision was based, I think, can be equally applied in the present case. In my opinion therefore the learned District Judge was quite right in holding that plaintiff 2 was entitled to redeem his one anna share only.

I may observe that it is open to question whether the principle of indivisibility of a mortgage can apply in the present case because the integrity of the mortgage was already broken when the respective shares of Junab, Kurban and Imdad were separately released.

Another small point has been urged on behalf of the appellants which relates to the form of the decrees. It appears that in the decree which has been passed by the learned District Judge it has been ordered that plaintiff''s right to redeem will be barred in case he fails to deposit the amount found due within the time allowed; but Order 34, Rule 7 provides that in default of payment within the time specified, the defendant will be entitled to apply for a final decree of the kind mentioned in Sub-rule (1), Clause (c)(2), Sub-clauses (a) and (b). The decree must be in accordance with these provisions.

Coming now to the defendants'' appeal No. 17, the only point urged is that the mortgagee acquired a title by adverse possession to the one anna share of plaintiff 2. It is urged that since his purchase in April 1881, Maddey Khan asserted his rights as a full owner and he was recorded as such in the Record of Rights finally published on 26th July 1921, the entry being made after contest. The simple answer is that a mortgagee who enters into possession of the mortgaged property in his capacity as a mortgagee can never during the continuance of the mortgage assert any adverse possession against the mortgagor. The mortgagor''s right to redeem remains alive for sixty years and no question of adverse possession arises until after the expiration of that period.

Mr. Yunus had relied upon a decision of the. Bombay High Court in Ibrahim Ghulamhusain v. Mohiuddin Balku AIR (1922) Bom 1 and a decision of the Madras High Court in Omayurupagam Mutt (through its Atheena Karthar Umamaheswarar Sivachariar Vs. Sivasooria Thevan and Others, . Indeed the Bombay case does support his contention, but it stands by itself and does not refer to any. reported decision. The trend of decisions however goes the other way. In the Privy Council case, Khiarajmal v. Daim (1905) 32 Cal 296 cited above, the question of adverse possession was raised but their Lordships held that as between the mortgagor and mortgagee exclusive possession by the mortgagee for any length, of time short of the statutory period of 60 years will be no bar or defence to a suit for redemption if the party is otherwise entitled to redeem. I may also refer to the decision of the Allahabad High Court in Bakha Singh and Others Vs. Ram Narain Singh and Others, which is to the same effect. The facts of the Madras case, Omayurupagam Mutt v. Sivasooria Thevan AIR (1922) Mad 407, were quite different because in that case there was a previous decision of a Courts inter partes that the relationship of mortgagee and mortgagor never in fact existed. In my opinion there is no merit in the defendants'' appeal which must be dismissed with costs.

Subject to the modification in the form of the decree mentioned above, I would also dismiss the plaintiffs'' appeal with costs.

Rowland, J.

I agree.