John Edge, Kt., C.J. and Banerji, J.
1. The only question before us in this appeal is whether the defendants-appellants, having received from the mortgagor a moiety of the mortgage-debt, and having, on that payment, released a moiety of the mortgaged property, have thereby bron up their mortgagzo as to allow the plaintiff to redeem that portion of the mortgaged property in which he is interested by payment of a proportion of the mortgage-debt still due to these defendants-appellants. The rule as to the redemption of a portion of mortgaged property on payment of a proportion of the mortgage-debt which has been acted on in these provinces since the passing of Act No. IV of 1882 is to be deduced from the last paragraph of Section 60 of that Act. We may say that before the passing of Act No. IV of 1882, the principle to be deduced from I the last paragraph of Section 60, to which we have referred, was the principle, so far as we are aware, which was applied in these provinces, and the right to redeem adversely a portion of ,the mortgaged property by payment of a proportionate part of the mortgage-debt was, when not stipulated for in the contract, confined to cases in which the mortgagee or mortgagees had acquired, in whole or in part, the share of a mortgagor. Mr. Abdul Majid, for the respondent, has contended that whenever the mortgagee receives payment of a portion of the mortgage-debt, and in consideration of such payment releases from the mortgage part of the property mortgaged, he breaks up the contract of mortgage and the mortgagor or any person interested in the mortgaged property becomes entitled to redeem a portion or portions piece-meal by payment of a proportionate amount of the debt remaining due ; and he cited as authorities for that proposition, Marana Ammanna v. Pendyala Perubotulu I.L.R. 3 Mad. 230, and Subramanyan v. Mandayan I.L.R. 9 Mad. 453. All we need say as to the case of Marana Ammanna v. Pendyala Perubotulu is that it was decided before the coming into force of Act No. IV of 1882, The decision in the case of Subramanyan v. Mandayan apparently followed the decision in Marana Ammanna v. Pendyala Perubotulu. In our opinion it would be contrary to public policy to hold that a mortgagee, by allowing a mortgagor to pay off a portion of the mortgage-debt and so release a portion of the mortgaged property, broke up the mortgage contract so as to allow the mortgagor, or any one else interested to redeem the remainder of the mortgaged property piece-meal. If such were the law, a hardship would be imposed on mortgagors, for mortgagees would undoubtedly refuse to receive from mortgagors part payment of a debt on condition of releasing a part of the mortgaged property. In this case the plaintiff must redeem the mortgage of these defendants-appellants,--he is a puisne mortgagee. The Court below ascertained that on the 19th March 1892, which was the day on which the suit was instituted, the total amount remaining due to these defendants-appellants on their mortgage was Rs. 98,989-12-0, and on that basis arrived at a sum of Rs. 4,997-8-0 which was fixed as the proportionate amount to be paid by the plaintiff. The plaintiff has not challenged the correctness of those figures as ascertained by the Court below, and consequently we take them as the basis of our decree.
2. We vary the decree of the Court below so far as the plaintiff and these defendants-appellants are concerned by decreeing that the plaintiff shall be entitled to redeem the mortgage of the 11th February 1878, at present vested in these defendants-appellants, by payment into Court on or before the 5th June 1895, of the sum of Rs. 98,989-12-0 with interest thereon at the rate of six per cent, per annum from the 19th March 1892 to date of payment, and that on such payment these defendants-appellants shall deliver up to the plaintiff, or to such person as he may appoint, all documents in their possession or power relating to the mortgaged property, and shall assign to the plaintiff the mortgage of the 11th February 1878, free from all incumbrances created by the defend ants-appellants or any person claiming under them, or by those under whom they or any of them claim as mortgagees, and that if such payment be not made on or before the 5th June 1895, the plaintiff shall be absolutely debarred from all right to redeem these defendants-appellants or to sell any portion of the property mortgaged to them.
3. The defendants-appellants shall have their costs of this appeal and their costs in the Court below to be paid by the plaintiff.