Amberson Marten, Kt., C.J.
1. This second appeal raises a curious point on which no authority precisely on all fours has been produced. The question in effect is, can a mortgagor at his pleasure bring, say, five separate redemption suits for redemption of a single mortgage debt, where the interest of the mortgagees has been divided by a gift or an assignment between some five co-sharers. In the present case we are dealing with two suits for redemption brought by the same mortgagor for redemption of the same mortgage debt. The one is against one sharer in the original mortgage security and the other suit is against another sharer or other assignees.
2. Both the lower Courts have held that the suit will lie because the original mortgagee has deliberately split up his interest amongst these five co-sharers so as to constitute separate shares as between themselves. With all deference to the learned Judges this seems to me to be a fundamental error in principle. This suit is essentially one to redeem the original mortgage debt. It cannot be open to the mortgagor to pay the entirety of the debt to only one of several assignees of the entirety of the mortgage debt. It is also clear that the mortgagor cannot be expected to pay the entirety of the debt in each one of the several suits he brings.
3. It is contended that if he pays the whole mortgage debt in the first suit, he could not be called on to pay it in suits 2 to 5. But to that the answer of the other co-sharers in suits 2 to 5 would be: 'I have not been paid anything by the mortgagor, The mortgagee in the other suit had no authority to receive my share of the mortgage debt.' There are numerous other impossible situations which might arise, if this sort of suit was countenanced by the Court, For instance, different results in the five suits might be arrived at in the different Courts in which they were decided.
4. So far as the matter rests on principle, it would seem to be concluded by a consideration of the converse case in Nilakant Banerji v. Suresh Chandra Mullick I.L.R. (1885) 12 Cal. 414 L.R. 12 IndAp 171 where their Lordships of the Privy Council say (p. 423) :-
It is quite a new thing to hold that the purchaser of a single fragment of the equity of redemption may come, without bringing the other purchasers before the Court, and have an account as between himself and the mortgagee alone, so that the mortgagee may be paid off piecemeal. Such a law would result in great injustice to the mortgagee. It would put him to a separate suit against each purchaser of a fragment of the equity of redemption though 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.
5. Then as regards the provisions in the Codes, Section 60 of the Transfer of Property Act deals with the mortgagor's right to redeem, but there is nothing in that section which justifies the present suit. Then Order XXXIV, Rule 1, of the Civil Procedure Code provides : 'Subject to the provisions of this Code, all persons having an interest either in the mortgage-security or in the right of redemption shall be joined as parties to any suit relating to the mortgage.' The explanation to this rule does not apply in the present case. Here, it is clear that the other co-sharers are interested in the mortgage security and also in the right of redemption. But even if the wording of that particular rule does not meet the precise case we have here, I am satisfied that the principles of law negative a suit of this nature being brought.
6. Then it was said, assuming that is so where a mortgage is outstanding, that would not apply to a case like the present where the Court has found in the result that nothing whatever is due on the mortgage. But, as I have already said, on looking at the plaint, that is essentially a suit to redeem a mortgage; and until an account has been taken, or the matter has been determined by the Court, it cannot be said whether or no there is anything due on the mortgage, So, to my mind the question whether this suit can properly be brought does not depend on the ultimate incidence of the mortgage debt, nor on the ultimate result of taking the mortgage accounts. In other words, it cannot be treated as being a mere action in ejectment, because the plaintiff alleges and the defendant denies, that there is nothing due under the mortgage.
7. That being so, it follows that in my judgment both these suits were wrongly constituted and cannot be maintained in the form in which they are brought. The question then arises as to whether we should give leave to amend by adding the necessary parties and amending the plaint, or whether we should dismiss the suit or else give liberty to withdraw with power to bring a fresh suit. Mr. Kelkar has referred us to certain sections or rules in the Civil Procedure Code, which provide that a suit shall not be dismissed for non-joinder of parties and so on, But we have here a case where the defendants from the outset have protested that the suit would not lie. The plaintiff has contested that point and succeeded on it in both the lower Courts, and he still maintains that his suit has been properly brought. In our judgment the plaintiff's contention is wrong. And even if we were now to allow an amendment, it would naturally involve the plaintiff paying all the costs up to date; it would involve adding many new parties; and it would involve, so far as I can see, extensive alterations in the plaint. It would in effect turn this suit into quite a different one. Nor am I at all clear as to whether these amendments are to be made in both the suits before us, or in only one, or in which of them, and what is to happen to the suit in which no such amendments are made.
8. Under these circumstances I would refuse liberty to amend at this late stage of the case. But, under all the circumstances, I would give liberty to the plaintiff to withdraw from the present suit under Order XXIII, Rule 1, with liberty to institute a fresh suit in respect of the subject matter of this suit. I do not, however, think it right for US to pass in this present defective suit any declaration as to the rights of the parties which were mainly contested in the Court below, viz., as to whether the plaintiff was the purchaser of the equity of redemption as he contended, or whether he merely purchased benami for his father Mohidin as his opponents contended. I recognize also that there would appear to be some justification for his legal advisers bringing a suit in the present form, because he brought another suit against another co-sharer Issak, and although it was objected that this piecemeal form of redemption could not be allowed, that contention appears to have been negatived in the lower Courts, and an appeal from the decision of the lower Courts was dismissed by Mr. Justice Beaman and Mr. Justice Heaton. Those learned Judges gave no reasons for their decision, and accordingly it is not a judgment which we need regard as binding on us in the present case, for there may have been other circumstances in Issak's case which would justify that particular suit.
9. With regard to the costs, it follows that in my judgment the plaintiff must pay the costs in all Courts. Cross-objections dismissed with costs.
10. I agree and have nothing to add.
11. Appeal allowed. Liberty to withdraw and bring fresh suit under Order XXIII, Rule 1. Plaintiff to pay costs in all Courts. Same order in both the suits. Cross-objections dismissed with costs.