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Judgment
Venkataramana Rao, J.—This is an appeal from the decree of the learned Sub-ordinate Judge of Tellicherry dismissing the plaintiff''s suit for
redemption of three mortgages in favour of defendant 1. The mortgages are described in para. 5 of the plaint as follows: (1) an othi dated 14th
February 1863 for a sum of Rs. 3000, (2) a kanom dated 17th April 1871 for a sum of Rs. 350 and (3) a kanom dated 2nd February 1889 for a
sum of Rs. 400. The properties secured under these mortgages originally belonged to Etakkalavan tarwad which became divided into two tavazhi
tarwads known as Thekkinakoor and Patinhattakoor. This division is admitted by all the parties to the suit. The case of the plaintiff is this. Items 1
to 16 of the plaint schedule, which have been described as certain specific halves of certain hills, fell to the share of Patinhattakoottil tarwad and
they were mortgaged on 7th September 1883 by the then karnavan in favour of one Koroth Veettil Krishnan. The said Krishnan filed a suit O.S.
No. 467 of 1889 on the file of the District Munsif''s Court at Kavvai on the said mortgage, obtained a decree and in execution thereof brought the
properties to sale and purchased them himself. Subsequent to the said purchase, he assigned the said properties to a pre-decessor-in-title of the
plaintiff by a deed dated 8th June 1892. On the basis of that assignment, the plaintiff filed a suit for recovery of possession but he was met by the
plea taken on behalf of the defendant 1 that he should sue for redemption before asking for possession. He had therefore to abandon the said suit
and this suit has been subsequently filed. It may be noticed that the othi and the two kanoms referred to above were executed in favour of
defendant 1 by the Patinhattakoottil tarwad. Excepting items 1 and 16, the. remaining items 2 to 15 appear to be the subject-matter of one or
other of the mortgages in favour of defendant 1 along with certain other items in the plaint schedule which did not form the subject-matter of the
deed of assignment in favour of the plaintiff''s predecessor-in-title.
Defendant 1, while alleging that the othi and the two kanoms in his favour do subsist and that they are liable to be redeemed, pleads that the
properties mortgaged Under these three deeds were not specific items with specific boundaries but undivided halves owned and possessed by the
Patinhattakoor tarwad in the items which from the subject-matter of the said mortgages and therefore the suit for redemption without a partition of
the said items is not sustainable. He also alleged that there was a Purankadom dated 3rd December 1887 in and by which a sum of Rs. 410 was
due and payable and according to the stipulation in that deed the amount was payable at the time of the redemption of the kanom dated 2nd
February 1889. The plaintiff denies his liability to redeem the said mortgage and this is also one of the subject-matters in issue between the parties.
Defendant 2 inter alia pleaded that items 1 and 16 were never owned either by Patinhattakoottil tarwad or Thekkinakoor tarwad, that one half of
the hills referred to in items 2 to 10, 13, and 15 out of the properties mentioned in the plaint schedule were owned by Thekkinakoottil tarwad
which is now vested in him, that he is not willing that the suit property should be partitioned but should the Court be of opinion that the plaintiff''s
suit is sustainable, relief can be granted without partitioning the properties. He also owns Jenmi interest in items 17 to 23. Defendant 4 opposed the
claim for redemption of item 1 on the ground that there was an othi in favour of his tarwad created by the original Etakkalavam tarwad in or about
1883 and the suit for redemption of that othi is time barred and the plaintiff has no cause of action to sustain the suit. Defendant 5 set up an
independent title in respect of items 16.
The learned Subordinate Judge on a consideration of the oral and documentary evidence in the case came to the conclusion that items 1 and 16
did not form part of the subject-matter of the mortgages in favour of defendant 1, that the defendant 4''s claim in respect of item 1 should be
allowed, as also the claim of defendant 5 in respect of item 16. In regard to the other items, his finding was that there was division of the original
Etakkalavan tarwad into two tarwads, Patinhattakoottil and Thekkinakoottil, that each possessed an undivided moiety in the properties which
formed the subject-matter of the mortgages and that each separately mortgaged its undivided half to defendant 1. He therefore thought that the
plaintiff had misconceived his remedy and that he ought to have sued for partition and redemption of one half of the properties and that he not
having chosen to do so, this suit was liable to be dismissed and he accordingly dismissed the suit. The learned Subordinate Judge also ascertained
the amount found due and payable including the Purankarlom amount as Rs. 6183-13-11 and this finding has not been challenged in this appeal
subject to the appellant''s liability or the Purankadom amount. Plaintiff 2 preferred this appeal and he having died during its pendency, his legal
representative, who has been brought on record, continues the same.
So far as items 1 and 16 are concerned, the finding of the learned Subordinate Judge cannot be disputed and it is supported by the documentary
evidence in the case. The principal attack of Mr. Govinda Menon is as regards the dismissal of the suit by the learned Subordinate Judge. His
argument is that the learned Subordinate Judge should on the evidence on record have held that there was a division by metes and bounds between
the two tarwads Pattinhattakoor and Thekkinakoor and even assuming his finding that only an undivided half was mortgaged in favour of defendant
1 by the Patinhattakoor tarwad to be correct, the suit is not liable to be dismissed but the learned Judge should have at least permitted an
amendment of the plaint and given the appropriate relief on the result of the finding arrived at by him. He also attacked the finding of the learned
Subordinate Judge in regard to the declaration of the plaintiff''s liability to pay the Purankadom amount. This second contention can be disposed of
briefly. The deed dated 3rd December 1887 distinctly provides that the amount borrowed thereunder should be paid at the time of the redemption
of the prior kanom and when there is a stipulation in the deed to the said effect, the mortgagor is not entitled to redemption unless he offers to
redeem both the mortgages. The law certainly is that he is bound to redeem: vide AIR 1927 32 (Privy Council) . We think the learned Subordinate
Judge is right in the view he has taken. Therefore the finding in regard to the amount declared to be due by the learned Subordinate Judge including
the amount due under purankadom must therefore be confirmed.
In regard to the question whether there was a division by metes and bounds of the various properties possessed by Ettakalavan tarwad between
the two tarwads Patinhattakoottil and Thekkinakoottil, at any rate regarding the properties which form the subject-matter of the suit, the learned
Subordinate Judge based his conclusion that there was no such division mainly on the documentary evidence in the case. On a consideration
thereof, it seems to us that the learned Subordinate Judge''s finding in regard thereto is correct. He has very fully discussed the matter and it is
unnecessary for us to deal with it at length. Exs. 3, 4, 7 and 8 seem to point to the fact that on the dates of those documents the properties dealt
with under these deeds were held in joint right. The inference therefrom seems to be reasonable that what was mortgaged to defendant 1 must
have been the undivided half possessed by the respective tarwads. On that finding the question is, is the plaintiff''s suit liable to be dismissed? The
relief which the plaintiff sought is in substance a relief of the redemption of the three mortgages mentioned in the plaint. No doubt he stated that the
properties mortgaged thereunder were specific halves of the malas, miloms and forests referred to in the plaint. But the plaintiff does not appear to
be responsible for this misdescription because he claimed under the assignment deed which purported to describe the properties in the manner he
chose to describe them in the plaint. What was sought in the plaint was a redemption of the three specific mortgages and by reason of a mere
misdescription, the Court should not have visited the plaintiff with the extreme penalty of dismissal and we think the learned Subordinate Judge
would not have done so if he had not misdirected himself as to the law. His view seems to be that where there is a mortgage of an undivided half of
a property, a suit for redemption of that half cannot be sustained without partition. This view is certainly wrong. A tenant-in-common can mortgage
his undivided interest in a property.
In this case defendant 1 has chosen to take mortgages of undivided halves of the property separately from each of the respective tarwads. u/s
60, T.P. Act, as soon as the mortgage amount has become due, the mortgagor has a right of redemption subject to the condition specified in the
section. Where an undivided half is mortgaged by a person who owns that undivided half, it is not open to the mortgagee to resist redemption and
he is bound to deliver, on tender of the mortgage amount, the title deeds relating to the mortgaged property and such possession as he took from
the mortgagor in respect of the undivided half. No doubt, defendant 1 being the mortgagee of the other undivided half and defendant 2 being also
the owner of that undivided half it would be convenient if both partition and redemption could be directed, but the partition cannot be had unless
with the consent of the owner of the other half who is riot interested in the mortgages sought to be redeemed by the plaintiff. Defendant 2 is
resisting the partition. The only course therefore is to direct redemption of the undivided half mortgaged under the othi and the kanoms in favour of
defendant 1.
In this case, when defendant 1 took separate mortgages from the respective tarwads of the undivided halves possessed by each, it must be
taken that he got into possession of the undivided halves possessed by each. On tender of the mortgage amount therefore defendant 1 is bound to
deliver the plaintiff possession, if any, of the undivided half owned by him in the properties mortgaged. A tenant-in-common is entitled to joint
possession. Here the said joint possession was and must be deemed to have been enjoyed by the mortgagor at the dates of the mortgages. There
can be no objection to the plaintiff being awarded this relief, he having succeeded to the rights of the original mortgagor. Of course, as mortgagee
under the law defendant 1 is entitled to the value of improvements effected by him in the property. We understand that a Commissioner has been
appointed to take the value of improvements effected by defendant 1 in the properties mortgaged to him. So far as the plaintiff is concerned, he is
bound to pay half the value of the improvements in the properties sought to be redeemed and joint possession whereof is directed to be given by
this decree.
We therefore allow this appeal, reverse the decree of the learned Subordinate Judge save in regard to Items 1 and 16 of the plaint schedule and
direct the lower Court to ascertain the amount of the improvements pertaining to the half share of the properties mortgaged under Exs. 3, 4, 7 and
8 and pass a decree for redemption in favour of the plaintiff in respect of the half share of the properties specified in the said deeds by decreeing
that on payment of the amount due and payable under the said deeds together with the value of improvements ascertained as aforesaid that
defendant 1 do deliver and the plaintiff do have joint possession of the half share of the properties mortgaged Under the said deeds, that is, the
plaintiff be permitted to take possession of the entirety of the said properties as tenant-in-common with defendant 1: vide Rathna Mudali v.
Perumal Reddi (1916) 3 AIR Mad 863 . As the plaintiff persisted in contesting the case on the footing of a division between the two tarwads in
spite of the objection of defendant 1 and failed to claim an alternative relief on the basis of an undivided half in the said properties having been
mortgaged* and failed in his contentions, we direct that each party do bear his own costs in the appeal.