1. This is an appeal by Mt. Beti Bai, defendant 1, arising out of a suit for redemption. It appears that in 1895, a mortgage was made by five persons for a sum of Rs. 96 in favour of Bhola whose representatives are the appellant Mt. Beti Bai and defendant 2, who is made a pro forma respondent. The plaintiff 1 is one of the mortgagors. Plaintiffs 2 to 5 and defendants 3 to 6, are the representatives of the other four mortgagors.
2. In 1905 three of the mortgagors, excluding the plaintiff 1 Tantya Singh and Mt. Kanji, applied under Section 6, Bundelkhand Encumbered Estates Act, requesting that the provisions of the Act be applied to them. In the written statement which they were required to submit under Section 8 they did not mention this mortgage-debt at all. It is also noteworthy that the other two mortgagors did not make any application under the Act. The order of the Judge under the Act was passed in July 1905.
3. It is unnecessary to decide in this case whether only such persons who are mentioned as creditors in the statement filed under Section 8 are deemed to be claimants under Section 11 and to them only Section 12 applies, or whether Section 12 applies to all creditors, because the Courts have assumed it to be so and the counsel for both the parties admit before me that so far as the three applicants are concerned the mortgage debt as against them was in fact discharged. It is necessary only to note that no steps were taken under Section 18 of the Act for the ejectment of the mortgagees.
4. The plaintiff's case simply was that they being co-mortgagors were entitled to redeem the entire mortgaged property on payment of the entire mortgage money, and they offered to pay the whole mortgage money. Defendants 1 and 2, however, pleaded that the whole debt having been discharged they assumed adverse possession over the property and the claim was barred by time. There was a further plea that the plaintiffs were not entitled to redeem more than their own shares. There were also pleas of res judicata and estoppel and several other pleas.
5. The Court of first instance found that there was no adverse possession at all, and the claim was not barred by time. The pleas of res judicata and estoppel were not argued before the Court and they were admitted to be without force. The learned Munsif, however, passed a decree in favour of plaintiff 1, in respect of his, own share as well as the share of defendants 5 and 6 who represented Mt. Kanji who had not made any application, on payment of two-fifths of the mortgage money, but dismissed the claim of plaintiffs 2 to 5, with regard to their shares as well as the share of defendants 3 and 4.
6. Plaintiff 1, of course did not appeal. Plaintiffs 2 and 5 appealed and wanted a decree for the balance of the share. Defendants 1 and 2, filed cross-objections setting up their plea of adverse possession. The lower appellate Court considered that the whole case was opened before it and passed a decree in favour of all the plaintiffs including plaintiff 1. The judgment of the lower appellate Court after reciting the preliminary facts starts by saying 'the pleaders of both the parties argue only one point before me, namely, whether the suit of the plaintiffs was barred by limitation or not. The plea of limitation had been found in favour of the plaintiffs, and therefore that plea in appeal must have been taken on behalf of the defendants only. If one were to take this statement strictly it would look as if the plaintiffs did not press the grounds taken in their own appeal which of course did not include the plea of limitation. But the learned Judge in this case has gone on to consider whether they should not be given a decree for their share, and has also gone on to consider the actual amount which they ought to be made to pay. On the other hand, there is no reference to the plea of res judicata and estoppel raised by the defendants which must be taken not to have been pressed in the lower appellate Court. It seems to me that the substantial point argued by the parties was the effect of the proceedings under the Bundelkhand Encumbered Estates Act on the rights of the parties, and this is the point which has been discussed by the Judge though not accurately described by him as being the sole question of limitation.
7. So far as the question of the amount is concerned the learned advocate for the respondents, in view of the deposit of the full amount under Section 83, and the offer in the plaint to pay the whole, and no objection to the amount in the grounds of appeal before the District Judge, has expressed his willingness to pay the whole of it.
8. The substantial question that remains is whether the plaintiffs can get a decree for possession or not. Assuming that Section 12, applied to the case, as both parties admit that it did, all that was the result of the proceedings under the Act was that the claim of the mortgagee against the three proprietors who had applied stood discharged. The appellant's contention is that as the mortgage-debt was a joint one, the whole debt must be deemed to have been discharged, and therefore from that moment the possession of the mortgagees became adverse as against all including those who had not applied. But under Section 12, it was only the claim against he proprietors who bad applied that was;duly discharged, and not also their claim against those who had not applied. But the mortgagees also cannot now claim the whole of the debt from those who had not applied, on the ground that they were jointly liable for the whole. The legal effect of the proceedings is that the integrity of the mortgage must be deemed to have been broken up by operation of law so far as the share in the joint debt of those who applied was concerned. This was the view expressed by Piggott, J., in the case of Pohhar Singh v. Ram Din (1912) 10 ALJ 171 following an earlier decision of his own. I agree with him that the failure of the mortgagees to make any claim under the Act as against some of the mortgagors had the same effect in law as if they had accepted from these mortgagors their proportionate share of the mortgage debt and freed their share from encumbrance, i.e., it has the effect of partially breaking up the integrity of the mortgage-debt. The view that the integrity of the joint debt becomes broken up is further supported by the case of Makundo Rai v. Janki Bai (1908) 30 All 141 where a proportionate part of a joint decretal debt was allowed to be recovered. It follows that so far as, the share of the mortgagor, who did not apply is concerned the mortgage still subsists, and the possession of the contesting defendants can in no possible way be adverse.
9. The next question is whether their possession was adverse as against those whose share of the mortgage-debt was discharged. This, in my opinion, is a mixed question of law and fact. If the defendants have not asserted adverse possession to the knowledge of those proprietors, the twelve years' rule of limitation would not apply because the plaintiffs are not suing for possession on the ground of dispossession within the meaning of Article 42. Even if the debt stands discharged, it does not necessarily follow that from that moment the possession of the mortgagee is adverse. It is true that under Section 18 he may be ordered to be ejected by the Judge, but the liability to ejectment does not necessarily mean that the possession of the mortgagee is adverse. In many cases the mortgage-debt of a usufructuary mortgagee is discharged out of the usufruct and yet he continues in possession. It has never been suggested that his possession is deemed to have become adverse from the moment when his debt was paid off. Furthermore, I am of opinion that the remedy provided by Section 18 of the Act is not the exclusive remedy which a proprietor is entitled to have recourse to. That is a summary remedy provided, and it does not in any way take away the right of the proprietor to obtain possession in any other away allowed by law. The first Court distinctly found that the mortgagees did not assert adverse possession at least up to 1918, but they themselves were under the impression that the mortgage rights still existed. The lower appellate Court also has found that there is no evidence that the mortgagees held the property adversely. Under these circumstances the claim of none of the plaintiffs can be said to be barred by time. The ordinary period prescribed for redemption is sixty years, and that period has not expired.
10. The learned vakil for the appellant lastly contended that Bisheshar's suit with regard to a fractional share of this property has been previously dismissed and that the plaintiff's claim with regard to that share should not be decreed. This contention was really a part of the plea of res judicata which was not pressed before the Court of first instance, nor before the lower appellate Court. It cannot succeed unless it is established in the first instance that Bisheshar did actually purchase the share of one of the heirs of the mortgagors, and that such a purchase by him was valid under the law.
11. Although I have held above that the integrity of the mortgage-debt was broken up partially, it does not follow that the mortgagees can insist on the remaining mortgagors redeeming their shares piecemeal. The integrity was broken up in the sense that the claim against those proprietors who had applied was altogether discharged and they were freed from all liability. But this did not necessarily involve a splitting up of the mortgage so far as the remaining mortgagors and their interests were concerned. In cases where a mortgagee himself acquires an interest in the equity of redemption, the integrity is completely broken up under Section 60 of the Transfer of Property Act. But this is not so where without acquiring any interest himself he merely allows some of the mortgagors to redeem their shares without the consent of the other mortgagors. In such cases the view of this High Court has consistently been that the remaining mortgagors can still redeem the whole of the unredeemed portion of the mortgaged property. This was the view clearly expressed in the case of Lachmi Narain v. Muhammad Yusuf (1895) 17 All 63 which was followed in the case of Chittar Mal v. Ram Narain, AIR 1914 All 398 and which has been recently followed in Haji Ali Jan Khan v. Majid-ud-din AIR 1923 All 499 and in Mt. Fatima Bibi v. Saiyid Sadiq Husain (F.A. No. 230 of 1922 decided on the 11th of June, 1925).
12. The result of this view is that the plaintiffs 2 to 5 are entitled to recover possession of their share of the property without paying any money whatsoever on the ground that their liability has been discharged, and the defendants have not established their adverse possession as against them. Plaintiff 1, is entitled to redeem the remaining share of himself and the other defendants-mortgagors on the ground that the integrity of this portion of the mortgaged property has not been broken up.
13. In equity plaintiff 1, could have been called upon to pay only the proportionate amount of the mortgage-debt. Unfortunately it is difficult in appeal to ascertain the exact interest which plaintiff 1, and the defendant-mortgagors possessed in the mortgaged property. In order to avoid a remand the learned Advocate for the respondents, for the reasons stated above, has agreed to offer the whole amount of the mortgage money.
14. In a case of this kind, when the pro forma defendants do not contest the claim, it is desirable that the whole property should be redeemed once and for all. I therefore uphold the decree for possession.
15. I accordingly allow this appeal in part, and modifying the decree of the lower appellate Court, decree the claim in full on payment of the whole amount of Rs. 96. In case that amount has not been deposited, the period will be extended by six months from this date.
16. As the appeal fails substantially, the appellant will have to pay the costs of the respondents.