Raghunath Prasad Singh vs Sadhu Saran Prasad Singh and Another

Das, J.—This is an application by Respondent No. 6, the purchaser of one of several properties mortgaged by one Brahamdeo Prasad Singh, on the 24th July 1904 for amendment of a decree passed on appeal in the High Court in a suit on the mortgage. It appears that two of the mortgaged properties had been purchased by the mortgagee himself. The relevant portion of the judgment of the Court is as follows:

It appears that Chota Narain, one of the mortgagees, purchased two of mortgaged properties, namely, 3 annas 8 pies share in Mauzah Chakia, and 4 pies 3 Karants share in Mauzah Nawada Kapur. It is argued on behalf of the defendants that the integrity of the mortgage having been destroyed by the action of the mortgagee the mortgage debt must be apportioned as between them in proportion to the value of the properties. The learned Subordinate Judge has dealt with the evidence and has recorded a finding that the contention of the defendants is entitled to succeed but that the plaintiffs have failed to put sufficient material before the Court for ascertaining the value of the various mortgage shares. Now the learned Subordinate Judge concedes that there was evidence before him but he thought that the evidence was not sufficient. In my opinion he should have decided the point on the evidence, good, bad or indifferent, that was placed before him by the parties. We direct, by the consent of the parties, that the learned Deputy Registrar of this Court when drawing up the decree do make the apportionment on the basis of the khewats that I understand are on the record. Let the decree be drawn up accordingly.

The decree as drawn up contains the following Clause 3:

There shall be an apportionment on the basis of the khewat as between the mortgagors and the mortgagees for the properties purchased by Chota Narain, the original mortgagee.

In making this apportionment 3 annas 8 pies share of Chakia have been valued at Rs. 67-13 and 4 pies 3 karants of Nawada Kapur at Rs. 320-3-0 a total of Rs. 388. The contention on behalf of the Respondent No. 6 who is the purchaser of 3 annas 8 pies share of Mauzah Assoya, one of the mortgaged properties, is that under the terms of the judgment of this Court each of the mortgaged properties has to be valued and the mortgage-debt apportioned among them according to their respective values. It is argued on his behalf that as the mortgagee himself split up the mortgage he is no longer entitled to claim that the mortgage should be redeemed in its entirety.

The application is contested by the mortgagee who claims to be entitled to all the remaining properties for the whole of the mortgage-debt except as reduced in proportion to the value of the properties that he himself has purchased.

It seems to me that on the language of the judgment the applicant is entitled to have the mortgage-debt apportioned between the defendants in proportion to the values of the several properties, if there is otherwise no objection to this course.

Section 60 of the Transfer of Property Act, dealing with the right of the mortgagor to redeem, contains the following provision:

Nothing in this section shall entitle a person interested in a share only of the mortgaged property to redeem his one share only, on payment of a proportionate part of the amount remaining due on the mortgage, except where a mortgagee, or if there are more mortgagees than one, all such mortgagees, has or have acquired in whole or in part the share of a mortgagor.

This section seems to imply that where the mortgagee by his own act in acquiring one of the mortgaged properties has split up the integrity of the mortgage any person interested in a share of the mortgaged properties may redeem that share on payment of the proportionate amount of the balance of the mortgage-debt. The principle has been recognized in Debendra Nath Sen v. Mirza Abdul Samad Soroji [1909] 10 C.L.J. 150 where at page 175 their Lordships observe as follows:

"As illustrations of exceptions to the general rule, it may be mentioned that an apportionment will be directed ... where the mortgagee himself has become the owner of a part of the equity of redemption or where by his own conduct there has been a break-up of the entire security. Thus an apportionment has been directed where, as in Surjiram Marwari v. Brahmdeo Prasad [1905] 2 C.L.J. 202, a mortgagee has acquired in whole or in part the share of the mortgagor in the equity of redemption or where, as in Nawab Azimut Ali Khan v. Jowahir Singh [1870] 13 M.I.A. 404, a mortgagee has purchased the equity of redemption in one out of several properties comprised in the mortgage security ... The test to be applied in each is, whether there has been a severance of the ''security at the instance or with the consent of the mortgagee, and an apportionment will not be enforced upon the mortgagee unless special equitable considerations are established.

In the case of Nawab Azimat Ali Khan v. Jowahir Singh [1870] 13 M.I.A. 404 an estate was subject to a mortgage in satisfaction of decrees against the original mortgagor or his representatives, in different parcels. One parcel was purchased by the plaintiffs and another parcel by the mortgagee. In a suit by the plaintiffs as owners of the equity of redemption in the parcel which they had purchased for redemption on payment of their rateable share of the mortgage-debt, the following observations were made by the Judicial Committee:

"The appellant (that is, the mortgagee) does not, as their Lordships understand, contest the proposition that the plaintiffs, as purchasers of that equity of redemption in a portion of the mortgaged premises, are entitled to redeem that portion on payment of some proportion of the mortgage debt:" see also the decisions in Hari Kissen Bhagat v. Veliat Hossein [1903] 30 Cal. 755 and Surya Bibi v. Monindra Nath Roy 4 C.W.N. 507.

In view of these authorities and of the actual language of the judgment, it seems to me that the contention of the petitioner is well founded.

The decree must be amended by apportioning the mortgage debt between the defendants in proportion to the values of the properties held by each.

The petitioner is entitled to the costs of this application. Hearing fee two gold mohurs.

Ross, J.

I agree.