Thiagasambandham Pillai and Another vs Savithiri Ammal and Another

A. Raman, J.—At the request of the counsel, both these appeals were heard together.

S.A.No. 2303 of 1983: The defendants are the appellants. The plaintiffs case is as follows:

The property is a house situate in Vanakkara St., Mannargudi Town, and it is the ancestral property of the 1st plaintiff and his elder brother

Thangavelu. They mortgaged the said property usufractuarily in favour of one K.R. Manian, under a registered othi dated 4.2.1959, and received a

loan of Rs. 1,750.00 and in lieu of interest the said Manian was put in possession thereof. The period fixed for redemption was to expire on

4.2.1968. The said K.N. Manian, whom as in possession as a mortgagee, had assigned the said mortgage to the first defendant under a registered

othi on 29.7.1960. The first defendant in collusion with the first plaintiff''s brother Thangavelu, got up a document styled as a sale deed in the name

of the 2nd defendant as though there was a petition of the suit property between the first plaintiff and his brother Thangavelu and as though the said

Thangavelu was allotted the portion on the road side. The said mortgage and the recitals in the sale deed are absolutely false. The first plaintiff,

therefore, issued a notice to both the defendants on 17.6.1974, offering to pay his half share of othi amount. The defendants sent a reply on

3.7.1974. They further claimed a sum of Rs. 8,000 for having effected improvements in the suit house. As per Tamil Nadu Act 88 of 1972, the

mortgagor is entitled to a proportionate reduction in the mortgage amount. Therefore, for the further remaining period, the amount payable to the

mortgagee on the mortgage is only Rs. 773 which is payable in equal morties. The 1st plaintiff is entitled to the benefits of the Tamil Nadu Debt

Relief Act 31 of 1976. As Thangavelu was not willing to cooperate with the 1st plaintiff, it has become necessary for the plaintiff as a co-

mortgagor to redeem the entire mortgage. The first plaintiff deposited Rs. 773.00 into court and filed O.P.No. 25 of 1975 for redemption. The

defendants who appeared through their counsel refused to receive the said amount and to delivery back the suit property. Hence, the first plaintiff

was referred to a suit and thus the suit is filed.

The defendants plead thus:

The house and the premises originally belonged to the 1st plaintiff and his brother Thangavelu Naicker. It is true that both of them jointly executed

a registered othi deed on 4.2.1959 in favour of one Manian for Rs. 1,750.00. It is also true that while the othidar was in possession, he executed a

registered assignment in favour of the 1st defendant on 29.7.1960. The first defendant, as the assignee of the othi rights, was enjoying the same.

While he was in possession, an oral partition was entered into between the 1st plaintiff and his brother Thangavelu Naicker, whereby the property

was divided into two equal portions and subsequently, the 1st plaintiff''s brother Thangavelu Naicker and his sons conveyed the portion obtained

by them in the said partition in favour of the second defendant by a registered sale deed dated 17.8.1964 for Rs. 2,000. Since then the second

defendant has been in possession of half of the suit property as absolute owner. On account of subsequent misunderstanding between the first

plaintiff and his brother Thangavelu, the suit has been filed falsely. The plaintiff and his brother have chosen to suppress the fact that there was a

partition, taking advantage of the fact that there was no document available to evidence the partition. The first plaintiff is aware of the conveyance

made by his brother in favour of the second defendant, and he also promised to convey half of his share in her favour for the same consideration.

The second defendant has effected improvements to the suit property by spending more than Rs. 3,000. The house was formerly in a dilapidated

condition and the roofing had caved in and cracks have developed in a number of places and therefore, the 2nd defendant was compelled to effect

improvements. The second defendant has paid Municipal taxes due for the house and even assuming that the plaintiff is entitled to redeem the

property, he is bound under law to pay the value of the improvements as well as the taxes paid by them. The 1st plaintiff, who claims to be the

owner of a half share only in the mortgage security, is not entitled to ask for redemption of the entire othi without impleading the other mortgagor

viz., his brother Thangavelu Naicker, as a party to the suit. The suit is therefore bad for non-joinder of necessary party. The amount deposited by

the plaintiff is also not correct. The suit is not a bona fide one. The 2nd defendant is the bona fide purchaser.

The third defendant, who is the son of Thangavelu Naicker was impleaded as a party in the suit. He contended that he is entitled to a share in

the suit property. He further alleged that the sale in favour of the 1st defendant is not binding on him as he was not a party to the said sale deed.

There was no partition in the family at all and therefore, the 1st plaintiff is entitled to half share in the suit property as claimed by him.

The learned District Munsif, Pattukottai by his judgment dated 7.3.1993, in O.S.No. 293 of 1976 decreed the suit as prayed for. Aggrieved by

the same, the defendants preferred an appeal in A.S.No. 24 of 1983 and the learned Sub Judge, Pattukottai dismissed the same with costs on

28.9.1983. Therefore, the defendants have preferred this second appeal. At the time, when this second appeal was admitted, the following

substantial question of law was framed for consideration.

Whether on the facts of the case, it could be stated that the plaintiffs could not redeem the entirety of the mortgage in view of the fact that one of

the mortgagors has sold his share to the second defendant?

Facts in S.A.No. 411 of 1991: The suit property originally belonged to Rajagopala Naicker and his brother Thangavelu Naicker. They

mortgaged the same in favour of one Manian and the said Manian has assigned the said mortgage in favour of the husband of the 1st defendant.

The said Rajagopala Naicker filed O.P.No. 293 of 1976 for redemption of the suit property. In the meanwhile, Thangavelu Naicker sold his half

share in the property representing his minor sons Krishnamurthy and Sekar in favour of the 1st defendant. Though the eldest son of Thangavelu,

viz., the first plaintiff herein had attained majority, he was not made a party to the sale. In the said suit in O.S.No. 293 of 1976, the suit has been

decreed in favour of the heirs of Rajagopala Naicker. Rajagopala Naicker and Thangavelu Naicker were each entitled to half share in the suit

property. The 1st plaintiff, as heir of the said Thangavelu Naicker is entitled to 1/8 share in the suit property. The second defendant is entitled to

half share. The 1st defendant is entitled to remaining 3/8 share. The plaintiff is not willing to remain in joint possession. Since the suit for redemption

was pending, the plaintiff could not file any suit for partition. The plaintiff orally demanded partition and separate possession to which the

defendants were not willing. Hence, the suit.

The first defendant contended thus: The suit is vexatious and frivolous. The suit property was in possession of one Manian as mortgagee under

the document dated 4.2.1959. The said mortgage was executed by the father of the plaintiff and the uncle of the plaintiff. The said Manian assigned

the said mortgage in favour of the husband of the first defendant. There were heavy debts and the debtors had attached the property and hence the

plaintiff''s father in his capacity as head of the family and kartha along with the plaintiffs brother and plaintiff''s grandmother Chengamal, for valid

consideration, executed sale of his half share in the property in favour of the 1st defendant on 17.8.1964. Thus, the sale was effected with a view

to clear the debts and to avoid the sale of the entire property, and hence it is a valid one and binding upon the plaintiff. The plaintiff was fully aware

of the proceedings and he was informed by the 1st defendant on 16.9.1964 about the circumstances and was called upon the receive his share of

the sale consideration. But, the plaintiff refused to receive the same. But, subsequently, in December, 1964, the plaintiff has received his share of

the sale consideration. Therefore, the plaintiff is not entitled to any relief. There is no joint family property available or in existence. Since the sale

deed has not been set aside within the period of limitation, the suit is not maintainable. The suit is bad for non-joinder of parties. The suit has been

filed suppressing the truth. The allegation that the plaintiff is in joint possession is false. The first defendant has been in absolute and exclusive

possession and enjoyment and adversely in the possession for 42 years and therefore, the plaintiff''s right over the property has been extinguished

by adverse possession. Further, the defendant has effected improvements to the suit property and the plaintiff is bound to repay the same. The

explanation for not filing the suit immediately is untenable. Since the value of the property has now increased, the suit has been filed by the plaintiff

with a view to coerce and blackmail the defendants to submit to the plaintiffs demand.

The second defendant pleaded as follows:

The second defendant accepts the plaint allegations. The second defendant is entitled to a share in the property. He has paid the necessary court-

fee. Hence, he prays that his share in the property may be declared and the same may be allotted to him.

The learned District Munsif by his judgment dated 11.9.1989, dismissed the suit of the plaintiff. However, the learned District Munsif declared

1/2 share in the suit property in favour of the second defendant. The plaintiff preferred an appeal against the same in A.S.No. 62 of 1989, and the

same was dismissed by the Sub Judge, Pudukkottai. Aggrieved by the same, the plaintiff has preferred this second appeal.

At the time of admission, the following substantial questions of law were raised for consideration:

(1) Whether the sale of the appellant''s share by the father of the appellant would bind the appellant especially when the sale is in respect of the

ancestral properties?

(2) Is it necessary for the appellant to file the suit within 12 years from the date of sale to set aside the sale of his share especially when the sale is

by a person not competent to sell?

(3) Whether the sale would bind a major son, who is not a party to the sale deed, if such sale is for family necessity and debts?

(4) Whether the purchaser could prescribe title by adverse possession, especially when the property is under usufructuary mortgage, the

redemption of which is subject matter of another civil proceedings?

(5) Would not the possession of the usufructuary mortgage tantamount to possession of all the mortgagors which would nullify the plea of adverse

possession by the purchaser when the mortgage is subsisting?

Since the above two second appeals relate to the same property, and are between the same parties, and since common questions of law and

facts are involved, these two second appeals which were heard together are disposed of by a common judgment.

The points in both these appeals: Rajagopala Naicker and Thangavelu Naicker were brothers. Rajagopala Naicker died pending the suit in

O.S.No. 293 of 1976 which has given rise to the Second Appeal No. 2303 of 1983. Savithri Animal is the widow and the only heir of Rajagopala

Naicker. She was brought on record as the second plaintiff in the suit in O.S.No. 293 of 1976. She is now the first respondent in S.A.No. 2303 of

1983. Radhakrishnan, Krishnamurthy and Sekar are the sons of Thangavelu Naicker, the brother of Rajagopala Naicker. Chengammal is the

mother of Thangavelu Naicker. The suit in O.S.No. 380 of 1983 which has given rise to the Second Appeal No. 411 of 1991 is one filed for

partition. Radharkrishnan, the son of Thangavelu Naicker is the plaintiff. Vedavalli Ammal, who claims to have purchased the half share of

Thangavelu Naicker in the family property is the 1st defendant in that suit while Savithri Ammal wife of Rajagopala Naicker is the 2nd defendant in

that suit. As already stated the suit in O.S.No. 293 of 1976 was originally filed by Rajagopala Naicker for redemption. On his death, pending the

suit, his wife Savithri Ammal was brought on record as the second plaintiff.

The admitted case of the parties is that on 4.2.1959, Rajagopala Naicker and his brother Thangavelu Naicker executed othi in favour of one

K.N. Manian, and put him in possession of the property. The usufructuary mortgage Manian, assigned the mortgage in favour of

Thiagasambandam pillai, who is the first defendant in O.S.No. 293 of 1976. Alleging that a partition had taken place between him and his brother

Rajagopala Naicker Thangavelu Naicker executed a sale deed in favour of Vedavalli Ammal, wife of Thiagasambandampillai, of his half share in

the property. Rajagopala Naicker, therefore, filed a suit for redemption of the mortgage executed by him and Thangavelu Naicker. On 4.2.1959.

He also contended that there was no partition of the property between him and Thangavelu Naicker and that Thangavelu Naicker was not allotted

any share or for that matter the front rent portion of the property. Therefore, he filed suit for redemption of the entire property in O.S.No. 293 of

1976. To that suit, he made the assignee of the mortgage. Thigasambandampillai as the 1st defendant, and the purchaser of the share of

Thangavelu Naicker as the second defendant.

The contention raised by Rajagopala Naicker was that was no partition took place between him and Thangavelu Naicker, and the sale deed is

not binding upon him. The trial court considered the plea of partition between the 1st plaintiff and Thangavelu Naicker and held that the division is

not valid. The defendants also raised a plea that they effected improvements to the property. That plea was also found against by the trial court

which granted a decree for redemption. The defendants in O.S.No. 293 of 1976 preferred an appeal to the Sub Court, Pattukottai in A.S.No. 24

of 1983. The appeal was dismissed confirming the judgment and decree of the trial court. Therefore, the defendants in the suit viz., the assignee of

the mortgage, Thiagasambandam pillai and Vedavalli Animal, who claim, to have purchased half share of Thangavelu Naicker in the mortgaged

property, who were alone impleaded as defendants to the suit for redemption have preferred this Second Appeal No. 2303 of 1983. The suit in

O.S.No. 293 of 1976 was decreed i.e., a preliminary decree for redemption was passed by the District Munsif, Mannargudi on 7.3.1982. The

appeal against the same was dismissed by the learned Subordinate Judge, Pattukottai on 28.9.1983. The Second Appeal against the same was

presented by the defendants before the High Court on 22.12.1983.

One of the sons of Thangavelu Naicker, the Co-mortgagor filed this suit for partition in O.S.No. 380 of 1983 claiming 1/8 share in the

property. The plaint was presented on 13.6.1983. The suit was decreed ex parts on 13.12.1984 and the ex parte decree was set aside by order

dated 6.10.1987 in I.A.No. 217 of 1987. The suit was taken up for trial and was dismissed as regards the plaintiff''s claim for partition, by the

District Munsif, Mannargudi on 11.9.1989. In that suit, as the wife of Rajagopala Naicker, who is the owner of the other half share was impleaded

as a defendant, and as she had paid necessary court fee, it was declared by the court that the 2nd defendant viz., Savithri Ammal is entitled to 1/2

share in the property and a preliminary decree to that effect was passed. Aggrieved by the same, Radharkrishnan, the plaintiff preferred the appeal

to the Sub Court, Pattukottai in A.S.No. 62 of 1989, and the same was dismissed by the Sub Judge, Pattukottai on 28.3.1990. Hence on this

appeal by the defendant plaintiff was presented on 19.2.1991 and it was thus taken up on file as S.A.No. 411 of 1991. The suit for partition by

Radhakrishnan was filed on 13,6.1983, after the passing of the preliminary decree for redemption in the suit filed by Savithri Ammal.

I will now dispose of the appeal preferred by Radhakrishnan in S.A.No. 411 of 1991.

The suit in O.S.No. 380 of 1983 was filed by Radhakrishan praying for partition and separate possession of his 1/8 share in the property. He

claimed 1/8 share in the suit property as the heir of Thangavelu Naicker. Thangavelu Naicker was entitled to half share in the property while the

other half share belonged to Rajagopala Naicker. In the said half share his three sons viz., Sekar Radhakrishanan, Krishnamurthy were each

entitled to 1/4, while the remaining 1/4 belonged to Thangavelu Naicker, Though, Radhakrishnan had attained minority, he was not made a party to

the mortgage deed. Thangavelu Naicker along with Sekar and Krishnamurthy sold the half share in the property by means of sale deed dated

17.8.1964. It is not in dispute that on the date of sale, Radhakrishnan had become major. That Thangavelu Naicker was the father and Kartha is

not in dispute. The trial court had held that the sale was effected by Thangavelu Naicker as the Manager and head of the family for legal necessary.

It held that the sale was effected for the benefit of the family. Hence, the trial held that the same is valid and binding upon the plaintiff

Radhakrishnan. It further held that it was not the case of the plaintiff that the sale was not for family necessity or binding purpose or that it was

executed for any illegal and immoral purpose. It further held that as the sale had taken place as early as on 17.8.1964, and the plaintiff has filed the

suit only in 1983, the suit is barred by limitation. It further held that the right of the plaintiff would become extinguished by adverse possession as

well. Learned Counsel for the appellant would urge that the sale by the father will not bind the son. Who was major on the date of sale. On an

appreciation of evidence, the trial court has categorically held that the sale was for family necessity and benefit. Therefore, it upheld the same. It

also held that the sale is therefore binding upon the plaintiff. The sale of the property by the father, and manager for discharge of family debts such

necessity definitely binding upon the son. Of course, the son was a major on the date of execution of the sale deed, and in fact he was not made a

party to the said sale deed. The property was already subjected to a mortgage. The sale of the half the share of Thangavelu Naicker by

Thangavelu Naicker and his two other sons in favour of Vedavalli Ammal was done for the purpose of discharging the family debts and for

payment of the maintenance of the mother of Thangavelu Naicker. A sum of Rs. 100 which was payable to the plaintiff towards his share was also

offered by the alienee. The son had not chosen to question the sale deed immediately. It may be that the property was in possession of the

mortgagee. The mortgagee is none other than the husband of the alienee. Nothing prevented the son from immediately challenging the sale deed on

coming to know of the same or within a period of three years. But h""e has kept quite. He has not been able to give any reason as to why he did not

choose to take action immediately. Therefore, by his conduct, he has accepted the alienation and approved the same. Having kept quite for nearly

20 years, it is not open to the plaintiff to attack the same on the ground that it was not binding upon him. Therefore, in these circumstances, it was

rightly held by the trial court the sale of the property inclusive of the share of the plaintiff is valid and binding upon the plaintiff. It is not the plaintiff''s

case that he was not aware of the same. According to him, his father had no right to execute the sale deed of his share. But yet he keeps quite and

only after the wife of Rajagopala Naicker filed a suit and obtained decree for redemption, the plaintiff had chosen to spring into action. It is

necessary and incumbent upon the plaintiff to file a suit within a period of three years from the date of alienation. Article 59 would apply to such a

case. It provide for a period of three years for filing a suit. Even assuming that Article 109 of the Limitation Act would apply, the period of

limitation is only, 12 years, Of course, the limitation would start from the date when the alienee taken possession of the property. But, here

admittedly on the date of sale deed, the possession of the property was not with Thangavelu Naicker. It was only with the mortgagee. It was not

with the family of the plaintiff. The purchaser is only the wife of the mortgagee. Therefore, in such circumstances, it must be taken that the

possession was taken on the date when the sale deed was executed. This is not a suit filed by the plaintiff for setting aside the alienation.

The lower court has held that the purchaser has prescribed title by adverse possession and ouster. The mortgage was executed on 4.2.1959. It

was in usufructuary mortgage. According to the mortgage deed, the property had to be redeemed before 4.2.1968. The usufructuary mortgagee

assigned the mortgage in favour of the first defendant on 29.7.1960. In the meanwhile a sale deed was executed by one of the mortgagors as

though a partition had taken place between him and the other co-mortgagor and a share in the property was allotted to him. The sale was in the

year 1964. The suit for redemption was filed in the year 1988. One of the contentions raised in the suit for partition is that the purchaser has

prescribed title by adverse possession and ouster. Section 59-A of the Transfer of Property Act specified that unless otherwise expressly

provides, references in this chapter to mortgagors and mortgagees shall be deemed to include reference to person deriving title from them

respectively. The purchase here is not by the mortgagee or the assignee of the mortgage who is the first defendant. The purchase is by a stranger

viz., the second defendant. Though she is the wife of the first defendant, in law, she is only a stranger purchaser. In the partition suit, the lower

court has clearly held that there was no partition as alleged by the alienee of one of mortgagors. Therefore, an undivided share alone is purchased

by the second defendant. The mortgage has been subsisting. When a mortgage is subsisting and the mortgagee and was put in possession pursuant

to the mortgage, he cannot claim any adverse possession. The purchaser of a share of the property subject to the mortgage is only a purchaser of

equity of redemption. She cannot claim to have prescribed title by adverse possession as against either the mortgagee or the co-mortgagor, mainly

for the reason that when the mortgagee is in possession, the purchaser of a share from the co-mortgagor cannot claim to have been in possession

muchless to put forward a contention that the purchaser has prescribed title by adverse possession. The mortgage of a portion of the property

cannot be termed as ouster. In the case of suit for redemption only the assignee of the mortgage has been examined. There was also no

documentary evidence to prove the possession of the purchaser for over the statutory period. Therefore, in such circumstances, it is not at all

possible to accept the contention that the purchaser of property has prescribed title by adverse possession. The purchaser, therefore, cannot have

prescribed title by adverse possession, especially when it is a case of usufructuary mortgagee and the suit for redemption has been pending in the

court. Therefore, usufructuary mortgagee will be a possession for and behalf of the mortgagors as well. Therefore, in such circumstances, it is not

possible to accept the finding of the lower court that the suit is barred by limitation in that the first defendants prescribed title by adverse

possession. However, in as much as the suit has not been filed within 12 years from the date of sale, the plaintiff must be non-suited. The sale was

executed by the father, It is not the case that the plaintiff was not aware of the same. Therefore, the plaintiff was not precluded from taking steps to

set aside the same and file a suit for redemption or partition as the case may be. The mere pendency of the suit for redemption of mortgage cannot

prevent the time from running out. It was only a suit filed by the other sharers for the redemption of mortgage. The plaintiff must have taken steps to

implead himself as party to the proceedings but he has omitted to do so, Therefore, in as much as the plaintiff is failed to question the same or file

the suit within the period provided in law, it follows that the plaintiff''s right to challenge the same is lost by the rule of limitation. Therefore, though

the suit is not barred by adverse possession, the suit is liable to be dismissed. Since the plaintiff has not taken steps within 12 years from the date of

sale. As it is incumbent upon the plaintiff/appellant to file the suit within 12 years, having failed to do so, the suit is barred by limitation. The suit

having been filed after 19 years is clearly barred by limitation further on the date when the suit was filed there was no property available for

partition.

We are now concerned with Section 60 of the Transfer of Property Act. To be more precise the fifth part of the said section is that which is

relevant here. It reads as follows:

Nothing in this section shall entitle a person interested in a share only of the mortgaged property to redeem his own share only, on payment of a

proportionate part of the amount remaining due on the mortgage, except only where a mortgage, or, if there are more mortgages than one, all such

mortgagees, has or have acquired, in whole or in part, the share of a mortgagor.

A suit for redemption is a suit to enforce the right to redeem. Such a suit can be filed by a mortgagor or by persons mentioned in Section 91 of

the Transfer of Property Act. The mortgagor of a share is only to redeem the whole mortgage and therefore, partial redemption is not possible in

law. But, if the integrity of the mortgage is broken, partial redemption can be allowed. Normally, a suit for partial redemption will only lie when the

mortgagee has acquired a share in the equity of redemption. But, there a share is acquired not by the mortgagee, but by a third person. Of course

merely because the person who acquired the half share in the mortgage security, happens to be the wife of the assignee-mortgagee, that will not

make it a case of acquisition of the share by the mortgagee. The acquisition of the share in this case is only by a third party though she may be

related to the assignee-mortgagee. Therefore, the question of suing for partial redemption cannot normally rise.

Learned Counsel for the appellant referred to a number of decisions. It is not necessary for me to refer to all those decisions in detail. But,

suffice it is for me to point out that those decisions do not apply to the facts of this case. The ruling reported in Thillai Chetty v. Ramanatha Ayyan

and Ors. ILR 20 Mad. 296, is to the effect that when several owners of undivided shares in immovable property mortgage their share with

possession to another undivided sharer, a smaller number than the whole body of co-mortgagors cannot sue to redeem the mortgage until there has

been a partition of the property mortgaged among the several co-owners.

The decision referred to by the learned Counsel and reported in Jalappa Vs. Narasimha Setty and Others, , was a case where a sale of

hypothcate was effected by manager of joint Hindu family to the mortgagee.

The decision reported in M.S. Govindarajan Vs. The General Manager, Heavy Vehicles Factory and Others, , pertain to a case where a

mortgagee in possession acquired a right to a share in the mortgaged property. Therefore, these are all cases where the mortgagee himself acquired

a share in the hypothcate. But the case on hand is not acquisition of a share by the mortgagee but by a third party. Therefore, in law, the co-

mortgagor viz., Rajagopala Naicker can only sue for redemption of the entire mortgage.

Learned Counsel for the appellant referred to two other aspects, which according to him, would go to show that the integrity of the mortgage

has been broken. He has referred to the suit filed by the sons of Thangavelu Naicker for partition, where the wife of the co-mortgagor has been

granted a decree for partition and separate possession of her half share in the property. In other words, the second plaintiff in the suit for

redemption in O.S.No. 293 of 1976 and who is the 2nd defendant in O.S.No. 380 of 1983, has obtained decree for partition and separate

possession of her half share. Therefore, this has brought about a division in the status. A preliminary decree has been passed in that suit and

therefore, the integrity of the mortgage has been broken and hence he contends that in that circumstance, the 2nd plaintiff in the suit for redemption

has been granted only a decree for partial redemption of her half share in the property. Of course, on the date when the suit was filed by the son of

Thangavelu Naicker for partitions the other co-mortgagor, had already obtained a preliminary decree, has but, as on the date, when we take these

two matters, the position is that there is a decree in favour of the wife of Rajagopala Naicker for redemption of the entire mortgage, There is also a

decree in her favour for partition and separate possession of her 1/2 share in the property. Of course, this fact cannot be ignored. When there is

such a decree for partition and separate possession, whether in the circumstances, the decree granted for redemption of the entire property has to

be modified or restricted to the half share in favour of Savithri Ammal, the 2nd plaintiff. The reason for the rule that the partial redemption is not

permissible is because the disintegration of the mortgage security would result in great injustice to the mortgagee. The Judicial Committee in Nilkant

v. Suresh Chunder (1886) 12 Cal. 414, held as follows:

It would put him to a separate suit against each purchaser of a fragment of the equity of redemption thrown purchasing without his consent, and he

would have separate suits against each of them and suits in which no one of the parties would be bound by anything which took place in a suit

against another. Different proportions of value might be struck in the different suits, and the utmost, confusion and embarrassment would be

created.

Therefore, the reason for the rule is to protect the interest of the mortgagee.

Here, we are to consider whether the granting of partial redemption will in any manner effect the interest of the parties or result in injustice. The

mortgage has been executed in the year 1959. The sale of the half share by one of the co-mortgagors was executed in favour of third party the

wife of the assignee of the mortgage in the year 1964. The suit for redemption is filed in the year 1976. The suit for partition is filed in the year

1992. There were no other sharers except Vedavalli Animal and Savithri Ammal. The husband of Vedavalli Ammal is the assignee of the property

though in law they are different entities for all practical purposes. The convenience of one will the convenience of the other. In other words, it may

not cause any prejudice or bring about a conflict of interest as between the husband and wife, if partial redemption is allowed. Further, the suit has

been filed for partition in which Savithri Ammal, wife of Rajagopala Naicker, the other co-mortgagor has been granted a preliminary decree for

partition and separate possession of half share in the suit property. When there is such a decree for partition and separate possession in favour of

Savithri Animal, and when there is a decree for redemption of the entire property, the execution of both the decrees may bring about a conflicting

situation and posing problems in the matter of allotment. Of course, the mortgagee claims to have effected improvement to that portion of the

property in which the mortgagee is in possession, and it is said to have been sold to them by Thangavelu Naicker on the ground that a partition to

that effect had taken place. Whatever, it may be, the fact remains that the assignee of the usufructuary mortgagee, Thiagasambandam Pillai and his

wife, the alienee of the half share, have been in possession and enjoyment of the front portion of the building all these years viz., for the past 25

years. Therefore, if Savithri Ammal file an application for passing of the final decree in the partition suit the usufructory mortgagee and the

purchaser are entitled to put forward the plea of equity, in the allotment. If the redemption of the entire properties is now ordered in favour of

Savithri Ammal in execution of the preliminary decree for redemption, then complication would be brought into the matter. As on date by reason of

the preliminary decree for partition and separate possession granted in favour of Savithri Ammal, and as the rule against the partial redemption is to

protect the interest of the mortgages and as in my view the integrity of the mortgage is impaired by reason of the preliminary decree in favour of

Savithri Ammal, I am to hold that mortgagor viz., 2nd plaintiff Savithri Ammal is entitled to only partial redemption viz., the redemption of half share

in the property. This in my view, will be an equitable disposal of the matter and it will give coitus to the litigation that has been pending in the courts

for the last 25 years.

Therefore, in view of the matter, I am to hold that the plaintiff in O.S.No. 293 of 1976 is not entitled to redeem the entire mortgage and that

she is entitled to redemption of only her half share in the mortgage. This point is therefore, answered accordingly.

In the result, S.A.No. 411 of 1991 is dismissed without cost confirming the Judgment and decrees of the courts below.

In the result, S.A.No. 2303 of 1983 is allowed in part. The decree and judgment of the courts below are modified holding that the 2nd plaintiff

Savithri Ammal is entitled to the redemption of 1/2 share in the mortgaged property. Out of the amount deposited by the 1st plaintiff viz., Rs.

773.00, the 1st defendant is entitled to receive only Rs. 386.50. The plaintiff is entitled to the refund of the balance of Rs. 386.50. Considering the

long pendency of legal trustee between the parties, and in the circumstances of the case, I direct the parties to bear their own costs throughout.

Consequently, C.M.P.No. 8553 of 1997 dismissed.