1. The plaintiffs arc the appellants. The suit is for redemption of a mortgage dated 8-6-1925, the copy of which is marked as Exhibit H. One Munemma is said to be the owner of the property. He died about 30 years before the suit leaving behind, five daughters to succeed him.
The two plaintiffs are his daughters. The other daughters were Munemma, Venkatamma and Lakshmamma. Munemma is dead and the fifth defendant is her son and also heir, Venkatamma died without issues. Lakshmamma died unmarried. Hence it is claimed that the plaintiffs and the fifth defendant are the present owners of the suit property. They are tenants in common.
2. Venkatamma executed a usufructuary mortgage of the suit property in favour of the first defendant for Rs. I70/- on 8-6-1925. This was done without the conjunction of her other sisters. Her husband who joined in the execution of the mortgage deed had no right or interest in the property mortgaged. The plaintiffs have sued for redemption of that mortgage. The 5th defendant has been impleaded as a co-owner.
3. The redemption is opposed by defendants 1 to 3 on the following grounds : --
(1) The mortgage having been executed by one of the co-owners, the possession of the mortgagee is adverse to the other co-owners. As the mortgagees were in possession of the some for more than the statutory period, they have perfected their title by adverse possession.
(2) The 4th defendant has conveyed to them (defendants 1 to 3) item No. 3 by an oral sale and taken possession from them of items Nos. 1 and 2. Ever since the oral sale, they are in possession of that property on the strength of the said oral safe. Even if the 4th defendant had no right to sell the property, from the date of the oral sale the character of the possession of defendants 1 to 3 is that of the full owners. Consequently adverse to the true owners.
(3). The plaintiffs' right is barred by limitation and
4. The plaintiffs have no right to redeem.
5. They have also pleaded that they have effected improvements in the suit property and that they are entitled to the value of the improvements in the event of redemption.
6. The 4th defendant supported the claim of the plaintiffs and denied the oral sale. The 5th defendant disclaimed all interest.
7. Necessary issues were raised. Both sides adduced oral as well as documentary evidence. The trial Court granted a redemption decree to the plaintiffs. The claim for improvements was rejected. The appellate Court reversed the decree and judgment of the trial Court and dismissed the suit. It held : (1) that the plaintiffs had no right to maintain the present suit as they are not entitled to redeem the suit mortgage.
Their right if any is to sue on the basis of their title; (2) Oral sale pleaded is held to be proved and the same is valid and binding against the plaintiffs; (3) In view of the oral sale the character of the possession of the mortgagee is changed and since that date the mortgagees are holding the property adversely to the true owners; (4) The plaintiffs are not entitled to succeed to the share of Venkatamma as she predeceased her husband. The question of improvement was not adverted to.
8. The first appellate Court's judgment lacks clarity. The alleged oral sale is neither proved nor valid. The 4th defendant who is said to have sold the property, had no interest in the suit property. He could not have conveyed any title. He is the son of the divided brother of the plaintiff's father. I fail to imagine as to how any alienation by him could affect the interest of the owners.
The learned Judge without being clear about the facts unnecessarily burdened his judgment with case law which has no relevancy to the facts of the case. He failed to comprehend that the alleged oral sale is not by the mortgagors. A faint attempt was made by the contesting defendants during the course of the evidence to establish that the 4th defendant had the authority of the owners to sell the property and he acted as their agent. If was a fantastic story. It was not even pleaded. The trial Court rejected it and the first appellate Court did not pronounce on it.
9. But the more important question is as to whether the plaintiffs have a right to redeem themortgage? They are not the heirs of the deceased Venkatamma. Venkatamma predeceased her husband. Hence her husband became the heir and his rights would devolve on his heirs.
10. In the instant case, one of the co-tenants has mortgaged the property belonging to all of them. Can the other co-tenants redeem the mortgage? If they are entitled to do so, could they redeem the entire mortgage or only their share or shares in the property? It must be remembered that the deceased Venkatamma had mortgaged not merely her share in the property but the entire property.
Section 91(a) of the Transfer of Property Act provides that any person (other than the mortgagee of the interest sought to be redeemed) who has any interest in, or charge upon, the property mortgaged or in or upon the right to redeem the same, is entitled to file a suit for redemption. Are the plaintiffs persons having any interest in the property mortgaged as contemplated in Section 91(a) aforesaid? Be it noted that it is not merely the persons who have interest in, or charge upon, the right to redeem but also the persons who have interest in or charge upon the property mortgaged are entitled to redeem. See Ganesh Raghunath v. Rajaram Laxman, AIR 1934 Bom 32.
11. The learned counsel for the respondents 1 to 3 has cited before me a large number of decisions in support of his contention that the plaintiffs have no right to redeem though they may be entitled to sue on the basis of their title. This is also the view taken by the first appellate Court-Only one of the many decisions cited are apposite to the facts of the present case : i.e. Dinkarrao v. Shamrao, AIR 1930 Nag 173. The rest have no direct bearing on the points that call for determination in this case.
The case reported in AIR 1930 Nagpur 173 was strongly relied on, as supporting the contentions of respondents 1 to 3. It is a judgment of a Judicial Commissioner. Considering the facts of that case, the learned Judge opined that in law what was mortgaged was the l/6th share of the 2nd defendant in which the plaintiffs had no interest. He proceeded to observe :
'There is undoubtedly much force in this contention. The phrase having an interest in the property appearing in Section 91(a). Transfer of Property Act is nowhere defined but it is now well settled that it has the same meaning as is attached to the similar phrase which appears in Order XXXIV, Rule 1, C.P.C.
It follows therefore that only those persons who are necessary defendants to a suit to enforce a mortgage, can have a right to redeem such a mort-page either in the same suit or if they are excluded from it by another suit of their own for redemption.' It was held that as the plaintiffs were not necessary parties to the redemption suit and as the mortgage could not legally affect their right they did not come within the scope of Section 91(a) of the T. P. Act.
12. With great respect to the learned Judge, I am unable to follow his reasoning. To me it appears to. be fallacious. He was misled by the apparent similarity between Section 91(a) of the T.P. Act and Order XXXIV, Rule 1, C.P.C. He failed to observe that while Order XXXIV Rule 1 spoke of persons 'having an interest either in the mortgage security or in the right of redemption, Section 91(a) of the T. P. Act spoke of persons having interest in the mortgage property (not security) and also of persons having interest in the right to redeem.
This important distinction between these two provisions was lost sight of. 'Interest in the mortgaged property' is not the same as the 'interest in the mortgage security'. One relates to the stage prior to the mortgage transaction and the other to a stage subsequent to the mortgage. To put it differently, one speaks of the interest in the property prior to the property feeing mortgaged and the other refers to the interest remaining after the mortgage.
This is a fundamental distinction. Hidaya-tullah J. in the ease reported in Pawankumar v. Jagdeo, AIR 1947 Nag 210, brings out this distinction very clearly. Referring to the scope of Section 91(a) of the T.P. Act vis-a-vis with that of Order XXXIV, Rule 1, C.P.C., he observed as follows:
'I do not consider that the matter is to bo judged by referring to Order XXXIV, Rule 1, C.P.C. That provision is merely procedural and does not create substantive rights. In my opinion the matter is to be determined on a true construction of Section 91(a), T.P. Act. As pointed out in Chitaley's Transfer of Property Act page 1372 the two phrases in Section 91(a) refer to different stages. The words 'property mortgaged' indicate the rights existing prior to the mortgage and the words 'the right to redeem indicate the rights left in the mortgagor subsequent to the mortgage.'
13. I may say with respect that this represents in my judgment a correct interpretation of Section 91(a) of the T.P. Act. I can think of no justification for narrowing down the scope of Section 91(a) of the T.P. Act. There is no need to ignore the plain language of the section. I am clearly of opinion that the plaintiffs are entitled to maintain the prevent suit for redemption.
14. It has been uniformly held that even the smallest interest in the mortgaged property is sufficient to entitle the plaintiffs to redeem the mortgage. See Mirza Yadalli Beg v. Tukaram, 39 Mad LJ 147: (AIR 1921 PC 125); and Shankar Mahadev v. Bhikaji Ramchandra. AIR 1929 Bom 139. In this case the plaintiffs have a substantial interest in the mortgaged property. Hence their right to redeem cannot be questioned.
15. Turning to the plea of adverse possession it is confined only to item No. 3 of the plaint schedule. No such plea is raised as regards items Nos. 1 and 2.
16. Even as regards item No. 3 the first defendant came into possession of it as a mortgagee. The oral sale pleaded is found against. Hence he must be deemed to be in possession as mortgagee. Consequently his possession cannot ho adverse.
17. There is no substance in the plea of limitation.
18. In the result, the plaintiffs succeed in the appeal. The decree and the judgment of the first appellate Court if set aside and the decree of the trial Court is restored. Defendants 1 to 3 shall pay the costs of the appellants both in this Court and in the first appellate Court. The trial Court's costs have been provided for in its decree. Hence no separate provision is necessary.
19. Appeal allowed.