1. The somewhat complicated facts out of which this second appeal arises are fully given in the judgment of the lower Appellate Court. The essential point in issue admits of being briefly stated. There was a certain zamindari property belonging to a family descended from one Khuwat Singh. A one-fourth share in this zamindari property was mortgaged by one of the four sons of the said Khuwat Singh to the father of Musammat Rainpiyari, the present defendant-appellant. The date of this mortgage was December 7th, 1877. On July 27th, 1887, the whole of the property in question was mortgaged by the four sons of Khuwat Singh, with possession, to one Musammat Zaibunnissa. The plaintiffs in the present suit acquired certain shares in the equity of redemption from some of the descendants of Khuwat Singh and on the strength of this acquisition, have redeemed the entire mortgage in favour of Musammat Zaibunnisa, and have apparently obtained possession. Subsequently Musammat Ram-piyari brought a suit on her father's mortgage of December 7th, 1877, in which she impleaded only the son of her mortgagor, and also Musammat Zaibunnisa, who had at the time no interest in the property in question, as her mortgage had been paid off. She did not implead the present plaintiffs. She got a decree for sale in respect of the one-fourth share covered by her mortgage, brought that share to sale and purchased it herself. Whether she has or has not succeeded in obtaining effective possession of this one-foilrth share as against the plaintiffs is not clear from the pleadings on the evidence in the case. The present suit is by the plaintiffs for redemption of the mortgage of December 7th, 1877; in favour of Musammat Rampiyari's father. The suit was dismissed by the Court of first instance, but has been decreed on appeal. In both the Courts below the only point actually decided was a very narrow one. It appears that the entire consideration of Musammat Zaibunnisa's mortgage of July 27th, 1887, went towards satisfying a decree for sale which had been obtained on a previous mortgage, affecting the entire property of Khuwat Singh, executed on April 16th, 1872. Musammat Rampiyari contends that the plaintiffs have succeeded to the rights of Musammat Zaibunnissa in respect of her mortgage of July 16th, 1872. The argument is that Musammat Zaibunnisa could have, held up this prior mortgage as a shield in any suit brought against her in respect of her mortgage of July 27th, 1887, that she was, therefore, in effect a prior mortgagee as compared with the father of Musammat Rampiyari and not a subsequent mortgagee. I agree with the learned District Judge that, whatever rights Musammat Zaibunnissa, or the plaintiffs as her successors-in-interest, might held in respect of the mortgage of July 16th, 1872, these were not rights which the plaintiffs could be compelled to set up or to exercise against their Will. The possible existence of wuch rights does not, therefore, affect the position of these plaintiffs as mortgagees subsequent to the defendant-appellant. Had they been impleaded in the suit brought by the latter on her father's mortgage, they would not have been bound to set up any claim in respect of the mortgage of July 16th, 1872, and they might have been content to exercise the right of redemption which they possess as subsequent mortgagees under the deed of July 27th, 1887. They were deprived of this option by not being impleaded as defendants in the suit for sale brought by Musammat Rampiyari. I hold, therefore, that these plaintiffs possess an existing right of redemption in respect of the mortgage of December 7th, 1877, which they are entitled to exercise, as they claim to do, in the present suit.
2. The memorandum of appeal to this Court raises a further point, about which I feel considerable difficulty. Musummat Rampyari's present position is not merely that of a mortgages under the deed of December 7th, 1877, but she is also the purchaser of the equity of redemption in respect of the share affected by that mortgage. The transfer of the equity of redemption by the auction sale under which Rampiyari purchased was effected behind the backs of the present plaintiffs, and could not deprive them of the right of redemption which they possess as subsequent mortgagees. It was, however, an effective transfer qua the rights of the mortgagor, just as much as if the mortgagor had sold his equity of redemption to the prior mortgagee by a private sale behind the back of the subsequent mortgagees. I have no doubt, therefore, that the defendant-appellant, Musam-mat Rampiyari, has a right of redemption as against the plaintiffs-respondents. In Hassan-bhai v. Umaji 28 B. 153 : 5 Bom. L.R. 892 in a case strongly analogous to the present one, the High Court in second appeal passed a decree which had the effect of giving the prior mortgagee, who had acquired the equity of redemption, a first option of redeeming the subsequent mortgages, even while asserting the right of the subsequent mortgagees to redeem the prior mortgage, if the holder of the equity of redemption failed to redeem them. The difficulty Tfcel about passing a similar decree in the present case is in the main a practical one, arising out of the state of the pleadings and the evidence. It is true that, in the fourth and fifth paragraphs of her written statement, Musammat Rampiyari did plead her rights as a purchaser of the equity of redemption. She went on to assert that the present suit had only been brought in order to anticipate a suit for redemption which she herself was about to institute against the present plaintiffs. She did not, however, proceed to claim any sort of alternative relief on the strength of these pleadings, apart from the dismissal of the plaintiffs' suit altogether. Something must have been said about the point in argument in the Court of first instance, for the learned Munsif fixed an issue in the following terms: 'Can the plaintiffs or the defendant No. 1 get any relief in this case?' No evidence was led by either party to show the amount that would be due to the plaintiffs for the redemption of Musammat Zaibunnissa's mortgage, beyond the fact that the sum actually paid to Musammat Zaibunnissa by the plaintiffs-respondents was Rs. 1,000. Whether there were any costs of redemption which the plaintiffs would be entitled to add to this amount is not apparent from the record, Moreover, no question was raised in the Courts below, or has been gone into, as to whether the integrity of the mortgage in favour of Musammat Zaibunnissa has been so broken up as to entitle Musammat Rampiyari to redeem a one-fourth share of the property affected by that mortgage on payment of one-fourth of the mortgage-debt. Some argument has been addressed to me on the questions of law involved; but I doubt whether the materials on the record are sufficient to enable me to decide them, A question of limitation might perhaps arise, in view of the fact that the plaintiffs paid off the whole of Musammat Zaibunnissa's mortgage at a time when they only held a fractional share in the equity of redemption, and they would consequently become the holders of a charge in respect of the shares in the equity, of redemption which do not belong to them, including, of course, the share of the mortgagor whose rights have been acquired by Musammat Rampiyari. Under all the circumstances I do not think that the right of Musammat Rampiyari, as owner of the equity of redemption, to redeem from the plaintiffs-respondents, either the whole of the property covered by the mortgage of July 27th, 1887, or a one-fourth share in the same on payment of a proportionate fraction of the consideration, can properly or conveniently be determined in the present suit. I, therefore, content myself with dismssiug the appeal and I do so accordingly with costs, including fees on the higher scale.