1. This appeal is against the judgment of a learned Judge of this Court and raises two points.
2. It appears that the learned Judge decided a question of fact, viz., whether all the representatives, of the original mortgagees, together, had acquired an interest in a part of the mortgaged property or whether some of the representatives of the original mortgagees had acquired that interest. It has been pointed out to us that this question never arose in this Court and the argument of the appellants seems to be right.
3. In Clause (g), para 2 of the plaint, the plaintiffs stated that the original share mortgaged was a 5 biswa one, that a portion of it, viz., 1 biswa, had already been redeemed, that 2 biswas had been purchased by the mortgagees themselves, that 2 biswas remained under mortgage, that out of these 2 biswas an 11/42 share had also been redeemed and that they wanted the redemption of the remaining 31/42 share out of the 2 biswas. The defendants in their written statement did not contest this statement of facts. Indeed, in para 1 of their additional statements they accepted this statement of facts and raised the plea in law that the integrity of the mortgage having been broken the plaintiffs were not entitled to ask for redemption of more than their legitimate share. It will be noticed, therefore, that on the pleadings question of fact, as to whether all the representatives of the mortgagees had purchased or not a share of the mortgaged property arose. When an appeal was taken to the lower Appellate Court that Court remanded three issues of fact. One of these was:
Have the mortgagees or their representatives acquired the ownership of any part of the mortgaged property.
4. The answer to this was given by the learned Munsif in the following language:
I have to hold that the defendants have no doubt acquired ownership of a small part of the mortgaged property.
5. Not only did the plaintiffs not object to this finding which was really, in accordance with their statement of facts in the plaint, but their Pleader relied on this finding and argued before the learned Judge that the integrity of the mortgage had been broken. In view of these circumstances it is difficult for us to understand how the new question of fact was for the first time raised in the second appeal.
6. Mr. Aziz, the learned Counsel for the respondents, has argued that what the plaintiffs really meant by their statement in the plaint was not that all the representatives of the mortgagees had together acquired a share in the mortgaged property but what was meant was this that, individually, the several representatives had purchased certain shares and the result was that the total amount of shares purchased amounted to 2 biswas. This is really a pleading which cannot be fairly deduced from the statement of facts made in Clause (g), para. 2 of the plaint. Evidently this argument was raised before the learned Judge of this Court for the first time and the learned Judge determined the question of fact because it had never been determined by the Court below. As we understand the pleadings and the proceedings, the pleading brought up before this Court was an entirely new pleading and in our opinion it should not have been allowed to be urged in second appeal.
7. The learned Judge of this Court has held that where the integrity of a mortgage is broken a mortgagor is not entitled to recover by way of redemption more than his share in the property. Mr. Aziz has contested this proposition of law and has cited, as an authority, the cause of Shiam Saran v. Banarsi Das 65 Ind. Cas. 866 : 20 A.L.J. 258 : 4 U.P.L.R. (A.) 102 : (1922) A.I.R. (A.) 192. In this case the question was never raised very specifically and no authorities were cited. Indeed, the opinion delivered in this judgment is contrary to the opinion expressed in this Court in Kallan Khan v. Mardan Khan 28 A. 155 : A.W.N. (1905) 225, Munshi v. Daulat 29 A. 262 : A.W.N. (1107)49 : 4 A.L.J. 74 and Zaib-un-nissa v. Prabhu Narain Singh 40 Ind. Cas. 345 : 15 A.L.J. 625 : 39 A. 618. We are clearly of opinion that the learned Judge from whose judgment this appeal is, was perfectly right in holding that where the integrity of a mortgage is broken a mortgagor is not entitled to claim redemption of more than his own share. Briefly, the reason is this, that the integrity of a mortgage is necessary for the benefit of a mortgagee alone and where that has been broken and a redemption has to be allowed, there is no equity in favour of one of the mortgagors to possess the remaining property, although the same is more than his own legitimate share. If a redemption of a large share be allowed, the redeeming mortgagor will be in possession of his own share as the owner and will hold the remaining share as mortgagee, having been subrogated to the position of the original mortgagee. The co-mortgagor, who has so far not redeemed his share, will have to ask for redemption on payment and it is immaterial to him whether he goes to a co mortgagor who has redeemed or to the original mortgagee. In the circumstances, there is no reason why a co-mortgagor should have more than his own share.
8. It has been next contended on behalf of the respondents that the fact that the remaining mortgagors are parties as defendants to the suit was a justification for decreeing the redemption of the entire property in favour of the plaintiffs. This proposition of law clearly goes counter to the case of Kallan Khan v. Mardan Khan 28 A. 155; A.W.N. (1905) 225 and Zaib un-nissa v. Prabhu Narain Singh 40 Ind. Cas. 345 : 15 A.L.J. 625 : 39 A. 618. In all redemption cases, which are properly framed not only the redeeming co-sharers should be made parties but also the mortgagors who have not so far joined in the suit for redemption. The necessity of impleading co-mortgagors is this that the share and the right to redeem of the plaintiff cannot be determined behind the back of the non-redeeming mortgagors. It follows, therefore, that if the argument for the respondents be sound, in every case of a properly framed redemption suit, the plaintiff would be entitled to redeem not only his own share but of the shares of his co-mortgagors whom he has made defendants. This cannot be right.
9. The result is that the appeal succeeds. We allow the appeal, set aside the decree of this Court and remand the suit through the lower Appellate Court to the Court of first instance for determination of the share of the plaintiffs in the 2 biswa. share in question and the proportionate amount of the mortgage-money that they must pay. The plaintiffs will not be allowed to redeem more than their legitimate shares. The appellants will have their costs of the present appeal, but the remaining costs will abide the result.