Musammat Hira Kuer vs Palku Singh and Others

In this case the plaintiffs were co-mortgagors with the defendants in a transaction with the late Babu Salig Ram Singh. Babu Salig Ram Singh obtained a decree upon the mortgage-bond on the 6th of February 1902 and between that date and the 19th November 1905, several payments were made by one or other of the co-mortgagors in order to avert the sale of the property u/s 89 of the Transfer of Property Act. On the 19th November 1905 the balance of the decretal amount of debt not paid was Rs. 20,940-12-0, and it is not disputed that the whole of this sum was paid into Court by the plaintiff only, nor is it disputed that in consequence of this payment no further action has been taken by the mortgagee-decree-holder or that by the payment made the plaintiff finally released the property. The plaintiff now sues for contribution from his co-mortgagors and seeks to bring his suit within the period of limitation on the basis of Section 95 of the Transfer of Property Act, by which he may be said to have acquired a charge upon the property mortgaged. The suit being then a suit upon a lien or charge would be covered by Article 182 of the Limitation Schedule. The learned Subordinate Judge was of opinion that inasmuch as the co mortgagors had jointly made payments earlier in the history of this mortgage, the payment by the plaintiff of the sum outstanding in November 1905 was not a redemption within the meaning of Section 95. He, therefore, dismissed the plaintiff''s suit as barred by limitation. Against this decision the plaintiff appeals.

We are not in sympathy with the reasons given by the learned Subordinate Judge for his dismissal of the suit. u/s 95 of the Transfer of Property Act, where one of several mortgagors redeems the mortgaged property and obtains possession thereof, he has a charge on the share of each of the other co-mortgagors in the property for his proportion of the expenses properly incurred in so redeeming and obtaining possession.

Without doubt in the ordinary sense of the word redeem" the payment of the balance due upon the mortgage is as much a redemption as the payment of the whole sum due in a case in which there has been no previous part-payment. The points for consideration and argued before us by the learned Rai Bahadur have been, firstly, that within the terms of the argument at the Bar by Mr. Mahendra Nath Ray and Mr. Digambar Chatterjee in the case of Bibijan Bibi v. Sachi Bewah 31 C. 863 : 8 C.W.N. 684 the right to pay into Court the amount due under a mortgage decree is not a true right to redeem, but a right to pay up the decretal amount u/s 291 of the Code of Civil Procedure, which does not involve a delivery of the mortgage-deed. And it is urged that the decision, in the case did not constitute in the judgment-debtor a right to redeem in the sense contemplated by Sections 60 and 95 but merely a right to satisfy the decree made and that both in this case and in the case of Kedar Nath Raut v. Kali Churn Ram 25 C. 703 : 2 C.W.N. 353 (F.B.) : 13 IND. DEC.460 the learned Judges used the words right to redeem" in a loose sense and not in the strict sense. Granting for the sake of the argument that the learned Judges did intend to say no more than that the judgment-debtor had a right to pay up the mortgage-debt, we are required to consider whether u/s 60 of the Transfer of Property Act the right to redeem is limited to the right to take back the mortgage document. In our view this would be putting a far too narrow construction upon the section. In the ordinary sense the word "redeem" means to buy back or set free by payment. The property is bound by the mortgage, and any action taken to cut the bond by payment of money is a redemption. It is immaterial whether the mortgagor so far trusts the mortgagee as to leave the document in his possession or whether he insists upon the return of it and its cancellation. Redemption is effected by the releasing of the security and this is clear from the use in Section 89 of the terms "the right to redeem" and "the security" in conjunction. The clause runs: "And thereupon the defendant''s right to redeem and the security shall both be extinguished." We hold that where the security is extinguished the property is redeemed by the act which extinguished it. Upon this conclusion there is no further defence to the suits except upon equitable grounds, for the Full Bench decision which we have quoted is authority for the proposition that the right to redeem exists up to the time of the confirmation of the sale and the decision of the Judicial Committee in the case of Ahmad Wali Khan v. Shamsh-ul-Jahan Begam 28 A. 482 : 10 C.W.N. 626 : 3 C.L.J. 481 : 8 Bom. L.R. 397) : 3 A.L.J. 360 : (sic). M.L.T. 143 : 16 M.L.J. 269 : 33 I.A. 81 : 8 P.C.J. 918 (P. C) is authority for the proposition that Section 95 is not limited in its scope to cases in which delivery of possession of the property itself is rendered possible by the fact that the mortgage was a usufructuary mortgage. It is also applicable to cases of simple mortgage where the property, not being in the possession of the mortgagee, cannot be transferred to the party releasing the security. We are, therefore, of opinion that the suit was wrongly dismissed on the preliminary point. We set aside the order by which it was dismissed and remand the case that it may be now heard upon the merits. The costs of this hearing will follow the final result of the suit. The appellant is entitled, to a certificate entitling him to refund of the Court-fees paid on this appeal.