Velayudan Chetty vs Alangaram Chetty and Others

This is a suit to redeem a mortgage effected by the late Zemindar of Varappur in favor of Defendant 3 and of the fathers of defendants 1, 2 and

Portions of items Nos. 1 and 2 of the mortgaged properties were sold in execution of decrees obtained against the Zamindar in 1866 and 1867

and now belong to the 10th defendant. In a suit of 1884 the plaintiff obtained,a decree against the Zemindar''s elder son and in execution acquired

the elder son''s share of the mortgaged properties in so far as it had not been already alienated. The plaintiffs case is that the estate was impartible

and that by his purchase he acquired the whole equity of redemption subject to the prior alienations. In 1897 the Zamindar''s younger son claiming

that the estate was partible sold his share to a purchaser who transferred it to the 1st defendant, who claims to be entitled to a one-third share in

addition to his rights as a representative of one of the original mortgagees. Both the lower Courts, however, have held that it was unnecessary to

decide the question of impartibility in this suit. But the lower Courts gave the plaintiff a decree. Second appeals have been preferred''by the 1st and

10th defendants and two questions have been argued before us.

In the first place, it is argued on the part of the 1st defendant that the plaintiff not being the owner of the whole of the equity of redemption and

part of it having become vested in the 1st defendant himself who is also one of the mortgagees the plaintiff is not entitled to redeem such part. This

contention is opposed to Section 60 of the Transfer of Property Act as well as to authority. Section 60 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."" Here there are more motgagees than one, but only one of them has acquired in part the

share of a mortgagor. It is therefore perfectly clear that the exception does not apply, that the plaintiff is bound to offer to redeem the whole

mortgage. It seems equally clear that he is entitled to insist on doing so, (see Section 95 of the Transfer of Property Act) the general rule being as

explained in Huthasanam Nambudri v. Parameswarem Nambudri ILR (1898) M. 209 that a mortgage is one and indivisible and the exception only

arises when the mortgagee, or, if there are more mortgagees than one, all such mortgagees have acquired in whole or in part the share of a

mortgagor. The rule is explained in Ghose on Mortgages 4th Edn. page 247. The appellant relied on Kalian Khan v. Mardhan Khan ILR (1905)

A. 155, but that was a case in which a. single mortgagee had acquired a part of the mortgaged property and was consequently within the

exception. It was there held in cases coming within the exception the indivisible character of the mortgage was broken up and a mortgagor could

not claim to redeem the shares of other co-mortgagors in which he was not interested, but the judgment expressly distinguishes that case from one

in which ""only one of several mortgagees had purchased a part of the mortgaged properties and the indivisible character of the mortgage had not

been destroyed."" Mannu v. Kuttu ILR (1882) M. 61, was a case in which a single mortgagee had purchased a portion of the mortgaged property

and so came within the exception and Thillai Ghetti v. Ramanatha Ayyan ILR (1896) M. 295 was treated as coming within the same principle.

The next objection is that by a prior mortgage in 1863 the Zamindar mortgaged certain items included in the plaint mortgage together with other

properties and that the 1st defendant having become solely entitled to such prior mortgage, the plaintiff is not entitled to redeem the plaint mortgage

without redeeming that mortgage to the extent of the amount thereof, apportioned the items included in the plaint mortgage.

What the 1st defendant claims therefore is to consolidate the two mortgages, that is to say, to treat them as one and insist that one shall not be

redeemed without the othe"". But even before the right to consolidate had been restricted by legislation, as by Section 61 of the Transfer of

Property Act, it was always necessary that the two mortgages to be consolidated should have become united in title or come into the same hand,

to use the language of Lord Davey in Pledge v. White (1896) A.C. 187 and this cannot be said to be the case, whereas here the 1st defendant is

only a part owner of the plaint mortgage. The point has been expressly decided in a later case Riley v. Hall 79 L.T. 244

In the result the appeals fail and must be dismissed with costs.