V. Perumal Pillai vs R.M.M.R.M. Raman Chettiar

We think this question must be decided with reference to the provisions of the Transfer of Property Act, and more especially of Section 60

which deals with the right to redeem. Redemption in England is an equitable relief which the Court allows on such terms as have been considered

equitable in a long course of decisions. One of the established rules is not to allow redemption of any portion of the mortgaged property except on

payment of the whole of the mortgage debt, and further limitations of the right to redeem are to be found in the doctrines of Tacking and

Consolidation. In India the right is now governed by Section 60 which gives the mortgagor a right to redeem on payment or tender of the mortgage

money but expressly provides that "" 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 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 ignores the equitable

doctrine of consolidation which requires the mortgagor to pay something more than the mortgage money as a condition of redemption, but it

adopts and gives statutory force to the rule that a part of the mortgaged property is not to be redeemed except on payment of the mortgage

money. One exception only is made for the case of the mortgagee having himself acquired part of the mortgaged property. To insist on the

mortgagor paying the mortgagee the whole mortgage money in such a case without a proportionate abatement would give the mortgagor an

immediate right of suit against the mortgagee or his assignees to recover back by way of contribution what he had paid in excess of his

proportionate share, and this the legislature has avoided by the exception. It has not made any such statutory exception in favour of the mortgagor

in the case, mentioned in the order of reference, of a mortgagee voluntarily releasing from the suit a portion of the mortgaged property, and we are

not at liberty to derogate from the terms of the section by introducing one. Nor can we entertain the argument that such a case can be considered

to come within the exception because the action of the mortgagee in releasing part of the mortgaged property is an acquisition by himself within the

meaning of the section.

If the mortgagor is not entitled to an abatement from the mortgage money on this ground in a suit for redemption, the same rule must, we think,

apply in a suit for sale or foreclosure in which the Court has equally to fix the sum on payment of which the mortgagor is entitled to redeem. In

Krishna Ayyar v. Muthukumaraswamiya Pillai ILR (1905) M. 217 there is an observation at the close of the judgment "" that if the action of the

mortgagee (in releasing part of the mortgaged property) has had the effect of extinguishing the mortgage lien upon any portion of the mortgaged

property so as to relieve it from the liability to bear its proportion of the debt, he cannot recover more than what the property he proceeds against

would be rateably liable for."" It is, we think, clear that the release by the mortagee has no such effect, and that the released portion of the

mortgaged property remains liable for contribution u/s 82 of the Transfer of Property Act, as pointed out by Chamier and Piggot, JJ., in Jugal

Kishore Sahu v. Kedar Nath ILR (1912) A. 606. The owner of part of the mortgaged property who pays off the mortgage debt is entitled under

this section to contribution from the rest of the mortgaged property in the absence of a contract to the contrary, that is to say, unless he has

deprived himself of that right by contract. We may also observe that the words in the first paragraph of the section "" where several properties...are

mortgaged to secure one debt"" means have been mortgaged, just as in the second paragraph the words ""where...one is mortgaged to secure one

debt and then both are mortgaged to secure another debt"" the meaning is clearly has or have been mortgaged; and that the language of the section

affords no foundation for the argument that the owners of part of the equity of redemption could be deprived of their right to contribution under the

section by the action of the mortgagee in releasing another portion of the mortgaged property.

The decision in Ponnusami Mudaliar v. Srinivasa Naickan ILR (1908) M. 333 proceeds upon the authority of a passage in Mr. Ghose''s well-

known work on Mortgages and does not consider the provisions of the Transfer of Property Act on which we have based our conclusion. This is

also true of the Calcutta decisions to the same effect to which we have been referred, beginning with Surjiram Marwari v. Barhamdeo Persad

(1905) 1. C.L.J. 337 With great respect we are constrained for the reasons already given to differ from those decisions, and to hold that having

regard to the provisions of the Transfer of Property Act it is not open to us to give effect to the suggested equity against a mortgagee who releases

part of the mortgaged property from the mortgage. To do so would no doubt make a subsequent suit for contribution unnecessary, but on the

other hand it would introduce additional complications into mortgage suits which are already complicated enough. In our opinion however the

question has to be decided not on the balance of convenience, but in accordance with the provisions of the Act, and for the foregoing reasons we

answer the question referred to us in the negative.