1. This is a plaintiff's appeal. The suit was by one Shib Narain, who had purchased the rights of the mortgagor, for redemption of a usufructuary mortgage, dated 21st May 1864 made by Govind Prasad in favour of Chaudhri Behari Lal. This mortgage was for a sum of Rs. 500 and was admittedly a usufructuary mortgage. It had been followed by a second mortgage on 14th August 1864 for Rs. 200 in favour of the same mortgagee. It recited the first mortgage for Rs. 500 and further declared that the mortgagor should not be entitled to redeem without discharging the second loan also.
2. This was again followed by a third mortgage on 1st June 1867 in favour of the same mortgagee. It recited the prior total debt of Rs. 700; it referred to a subsequent 'mashrut-ul-rahn' document for Rs. 200 which was being taken back (and with which we are no further concerned) and then said that Rs. 99 was being taken in cash and for this total Rs. 299 the mortgagor was executing this fresh mashrut-ul-rahn (the dead itself contains this description) document; and it was further declared that the executant would pay this Rs. 299 first before discharging the earlier debt, and would pay up all interest before taking possession.
3. These three mortgages we will refer to hereafter as the first, second and third mortgages.
4. On 23rd August 1880 an agreement was signed between one Baldeo, the father of Gajadhar, the principal defendant-respondent in this case, and Chaudhri Behari Lal, the mortgagee above named, in which Chaudhri Behari Lal is said to have recognized Baldeo as half owner in, at any rate, the first mortgage; and one of the questions we have to decide is whether this agreement recognized him as half owner of the second and third mortgages also. On 6th December 1914 the heirs of Govind Prasad, the mortgagor, sold the equity of redemption to Shib Narain, the present plaintiff, who is the son of the deceased Choudhri Behari Lal, the mortgagee. The result of this transaction was that Shib Narain became the sole owner of half the property, and owner of the equity of redemption in regard to Baldeo's half.
5. On 5th December 1919, Shib Narain filed this suit for redemption, in respect of the first mortgage, of the half mortgaged to Baldeo. He alleged that he had deposited certain money under Section 83, T.P. Act; that the defendant refused to withdraw the amount; and that now, on the other hand, there was due to him, Shib Narain, a sum of Rs. 650. The defence was that the defendant Gajadhar, son of Baldeo, now deceased was also entitled to a half share in the second and third mortgages, and further that the first mortgage could not be redeemed without prior or at least simultaneous discharge of the second and third. Both points were decided against the plaintiff by both Courts and the suit was dismissed in toto.
6. Three points arise for determination in this case.
7. First, whether the defendant Gajadhar, son of Baldeo, is entitled under the agreement of 23rd August 1880 to a half share only in the first mortgage, or also to a half share in the second and third mortgages.
8. The second question is whether the defendant could insist upon the discharge of the second and third mortgages at the same time as the redemption of the first usufructuary mortgage.
9. The third question is: If it be held that the plaintiff could only obtain redemption of the first mortgage on condition that he also discharge the second and third, could he now be given a decree in respect of all three mortgages when he had only asked for redemption in regard to the first?
10. We will consider first the agreement of 1880. That contains the words: 'Girwi ki 70 bigha 4 biswa,' and later the words, 'Hamaro tumharo jo hissa barabar ka hai.' It is urged for the appellant that the word 'girwi' indicates that this acknowledgment of equal shares could refer only to mortgages of the nature of a usufructuary mortgage and could not refer to the second and third mortgages. We see no justification for this restriction of the term, but we may add that even if that were a justifiable interpretation of the word, there is authority in the judgment of Banarji, J., in Har Prasad v. Ram Chandar AIR 1922 All 174, for holding that even the second and third mortgages in this case may be regarded as usufructuary mortgages. It is not however necessary to press that, for as we have said, there is nothing in the word 'girwi' so far as we are aware, to restrict it to a usufructuary mortgage. On the other hand, we think that the words 'girwi ki,' were here only used as descriptive of all the mortgagee rights of the parties in the property specified as distinguished from their vendee rights in other property referred to as 'bainamah ki.'
11. Further for the appellant reliance was placed on an admission said to have been made by the defendant Gajadhar in cross-examination, that his right to possession was only based on the first usufructuary mortgage-deed. This would clearly not be sufficient to preclude him from maintaining that the three mortgages were really one. It is obvious that in one sense his claim for possession would be based on his first usufructuary mortgage. The statement was moreover brought out in cross-examination, but in examination-in chief he had already definitely asserted his claim to be based on all the three mortgages. We hold therefore that the defendant had in fact a half share in all three of the mortgages, and we decide this question against the appellant.
12. The second question is, can the defendant compel simultaneous redemption of the second and third mortgages? The plaintiff-appellant claims that he cannot. It is urged for him that he need not redeem simultaneously the later mortgages, unless they 'consolidated the old and the new transactions.' It would seem that of this class of cases they may be three types: Where it is suggested (1) that the first mortgage cannot be redeemed unless the second mortgage is first or simultaneously redeemed; (2) that the Second mortgage cannot be redeemed unless the first mortgage is first or simultaneously redeemed, and (3) that neither the first nor the second can be redeemed separately. The present case is alleged by the defendant to be of the first type, with this addition: that there is a third mortgage which bears to the first two the same relation that the second bears to the first.
13. We will consider first whether the first mortgage can be redeemed without redeeming the second. We have set out at the commencement of this judgment the terms of the deeds sufficiently for the present purpose. In support of his claim to redeem the first mortgage alone the appellant relies on Bhartu v. Dalip (1906) 3 ALJ 672 and Kesar Kunwar v. Kashi Ram AIR 1915 All 480. In Bhartu v. Dalip (1906) 3 ALJ 672, it is clear that the restrictive agreement embodied in the later mortgage was misread and the effect of the particular decision was explained away in the later decision by the same learned Judge in Brij Lal Singh v. Bhawani Singh (1910) 32 All 651 which we shall notice later when considering the cases that support the respondent. The other case, Kesar Kunwar v. Kashi Ram AIR 1915 All 480, relied on for the appellant, helps him no more. In that case it was only held that (assuming that, if the second mortgage was not time-barred, the defence would be a good, one that it must be paid off before redeeming the first mortgage) where there was a provision that the first mortgage should not be redeemed without paying off the second, and the second was in fact barred by limitation, the Court could not possibly allow the defendant to rely on the condition as to first discharging the second mortgage and so in fact enable him to secure payment of a debt which he had allowed to become time-barred.
14. For the defendant-respondent reliance was placed on Ranjit Khan v. Bamdhan Singh (1909) 31 All 482, Brij Lal Singh v. Rhawani Singh (1910) 32 All 651 and Har Prasad v. Ram Chander AIR 1922 All 174. We are perfectly satisfied that on the terms of the second mortgage it is governed by the principles laid down in the three cases that we have quoted; that it is in the nature of an additional mortgage hypothecating the property; and that on the principles laid down in those three cases, the plaintiff mortgagor was not entitled to redeem the first mortgage without at the same time discharging the second.
15. The case of the third mortgage is even more clear. In that the expression 'mashrut-ul-rahn' specifically occurs and as regards this mortgage counsel for the appellant has not found it possible to resist seriously the contention of the defendant that this third mortgage must be discharged before or simultaneously with redemption of the first.
16. As to the third question it has similarly, not seriously, been contended that the plaintiff could obtain redemption of the first mortgage and discharge the Second and third on his prayer, as at present framed, in which the relief asked for hag only referred to the first mortgage. But it is urged on his behalf that we should allow him now even at this stage, to amend his plaint and remand the case to the lower Court for determination of the question as to how much is due on all three mortgages together. This course was permitted in Brij Lal Singh v. Bhawani Singh (1910) 32 All 651 though it appears not to have been followed in the earlier case, Ranjit Khan v. Ramdhan Singh (1909) 31 All 482.
17. We think that such a prayer should not be too readily granted; that in view of the decisions to which we have referred, the law as interpreted by this Court at any rate should be well enough known. In the present case however we are prepared to accede to the prayer. We have therefore given the appellant permission to amend the plaint so as to ask for relief as regards the second and third mortgages also, and that amendment having been made we remand this case to the Court of first instance through the lower appellate Court under Order 41. Rule 25 with directions to take such further evidence as may be necessary and to determine the amount that may be due by the plaintiff to the defendant on foot of all three mortgages. On return of the finding the usual ten days will be allowed for filing objections.