Ramaswami Reddiar vs Peria Veera Kudumban and Others

The only point argued in this appeal is whether the Subordinate Judge was right in holding that the mortgage, Ex. I-A, had been broken up by the sale under Ex. I. It is urged for the appellant, that as all the sharers were bound by the mortgage u/s 60 of the Transfer of Property Act, the security is not redeemable as to 3/5tbs, as decreed.

The sale has been held valid as to 2/5ths of the property conveyed thereunder and invalid as to 3/5ths. It is urged that notwithstanding this there has bean no extinction of the mortgage security, in the hands of the purchaser (who was also the mortgagee) as to 2/5ths of the security. We have been referred to no authority beyond Section 60 of the Transfer of Property Act, by the appellant; he seeks to distinguish the cases we are about to refer to, by saying that in none of them has there been any assent or conduct on the part of the mortgagee, such as would show his acquiescence in a partial redemption. On the other hand, we have been shown no authority which draws a distinction between the case of a mortgagee, who originally purchases a share only of the mortgaged property and a mortgagee who by some legal proceedings is ultimately declared to have purchased only a share, as in the present case. The point is covered by Ponnambala Pillai v. Annamalai Chettiar (1920) 43 Mad. 372. It is a decision of the Full Bench and decides that the purchase by the mortgagee in Court-auction of the equity of redemption of some only of the mortgaged items discharges the portion of the mortgaged debt which is chargeable on those items. The Full Bench decision in Bisheshur Dial v. Ram Sarup (1900) 22 All. 284 is followed. There Banerji, J, said:

Therefore when the eights of the mortgagee and the mortgagor become vested in the same person, only so much of the debt DM be held to have been discharged as was proportionate to the value of the property, in respect of which the confluence of rights takes place;

and in Hamida Bibi v. Ahmad Husain (1909) 31 All. 335 it was held that:

Where the equity of redemption in respect of a part of the mortgaged property becomes vested in the mortgagee, there is a merger of rights and the integrity of the mortgage is broken up, by reason of the right of redemption and the right of the mortgagee passing to the same person. The mortgagee cannot throw the whole burden of the debt on the remainder of the property and compel the other mortgagors to redeem the whole mortgage. In order to bring about this result, it is not necessary that the fusion of rights should be by act of parties. What is necessary is that the mortgagee should have acquired the share of a mortgagor. Whether he acquires it, by purchase, or by inheritance or otherwise, the result is the same and the mode of acquisition is immaterial.

It appears to us therefore that no distinction is possible, as contended by the learned Vakil, for the appellant. We are, therefore, of opinion that the lower appellate Court was right. This second appeal must be dismissed with costs.