1. The essential facts so far as they are necessary for the purposes of this appeal can be stated very shortly. The mortgagor, who is no longer interested, by a mortgage by conditional sale dated the 20th of September 1900 mortgaged his zemindari share in four villages to the defendants. Subsequently on the 15th of July 1903 he executed a usufructuary mortgage in favour of the plaintiffs of three small plots of sir land for Rs. 99 15-6, and on the 8th of July 1934 he executed two other usufructuary mortgages in favour of the plaintiffs of some other small plots of sir and khud kasht land for Rs. 71 and Rs. 75 respectively. The aggregate area of these plots was a little over 3 bighas, that is something more than an acre. All these plots of land were situated within the boundary of the village of Ukraewan, one of the four villages mortgaged to the defendants. These three usufructuary mortgages were all unregistered. The terms of all of them were similar. The mortgagees undertook to pay the Government revenue, and the profits were set off against the interest. It was agreed that the mortgages could be redeemed at the end of the month of Jeth in any year on payment of the principal money.
2. In 1907 the defendants brought a suit for foreclosure of the mortgage of 1900 against the mortgagor and obtained a decree which was made absolute in 1908, and thus they obtained eventually possession of the mortgaged property. The plaintiffs, the puisne mortgagees, were not made parties to that suit. Thereafter the defendants ought to eject the plaintiffs, in the Revenue Court, describing them as their tenants. They pleaded that they were usufructuary mortgagees and, on being referred to the Civil Court obtained a decree from the Civil Court declaring them to be usufructuary mortgagees. This was on the 21st of May 1917. On the 6th of August 1918 the plaintiffs served a notice on the defendants of their intention to sue for redemption of the prior mortgage of 1900. On the 30th of August 1918 the defendants deposited in Court under the provisions of Section 83 of the Transfer of Property Act the entire amount due to the plaintiffs on the three subsequent usufructuary mortgages, offering to redeem them, The plaintiffs refused to accept the money and on the 10th of September 1918 filed this suit praying to be allowed to redeem the prior mortgage of 1900 on payment of 'the amount which the Court considers genuine and valid' and that 'they may be put in possession of the property comprised in the prior mortgage together with the sir land appertaining thereto.' The defendants contested the suit on three grounds. The first two need not be considered. 1 he third ground taken was: 'to avoid future dispute and to put a stop to the litigation, they (the defendants) had deposited the whole amount due to the puisne mortgagees on their mortgages and asked them to give up possession and that although they had refused this offer, they were still willing to pay them everything due under their mortgages.' On these pleadings the Trial Court framed, among other issues, Issue No. 6: 'Have defendants got a right to redeem the mortgages in favour of the plaintiffs? Have defendants been ready to pay the mortgage money due to plaintiffs? If so, how does it affect the claim?' On this issue, the only one with which we are concerned, it held: 'defendants appear to have deposited the mortgage-money due to the plaintiffs in Court under Section 83 of Act IV of 1882, and they claim that they have got a preferential right of redemption. This view though countenanced by the Bombay High Court is opposed to the views of the other High Courts (vide Gour's Transfer of Property Act, page 1130--IV addition of 1915 and the rulings cited on that page). The learned author observes: If the Bombay view be correct, the prior mortgagee would seal a march over the subsequent mortgagee by keeping him ignorant of the suit in which he acquires the mortgagor's interest.'' It went on to find that inasmuch as the plaintiffs had not been made parties in the foreclosure suit, the plaintiffs had a preferential right to redeem; and it gave them a decree for redemption on payment, not of the amount claimed by the plaintiffs, namely Rs. 3.282-12 0, but of Rs. 4,429-6 0 which included a sum of Rs. 1,400 which the defendants had to pay in their suit to redeem a still earlier mortgage. The defendants appealed and in paragraph 4 of their memorandum of appeal put their case in the following words: 'Legally the appellants at representatives of the mortgagor and also as prior mortgagees have a right to redeem the mortgages in favour of the plaintiffs. The appellants with a view to do away with future disputes, have already deposited, under Section 83 of Act IV of 1882, the mortgage consideration due to the plaintiffs in a competent Court, but they, as a precautionary measure, instituted this suit. Having regard to the entire circumstances the defendants' prayer as to the redemption of the plaintiffs' mortgages was fit to be allowed and in this case a decree for redemption in favour of the defendants should have been prepared. Such a decree is not prejudicial to the plaintiffs, and the one for redemption, passed by the Court is materially injurious to the defendants' right.' The learned Judge of the Court below sets out as one of the two points for his decision, as follows, 'that the defendants appellants who were once prior mortgagees were now the owners of the equity of redemption and were, therefore, entitled to redeem the plaintiffs' mortgages.' Unfortunately, as it seems to me, when be comes to discuss this proposition in his judgment he changes the phraseology of the issue as he had originally expressed it and asked himself, 'the second point for decision is whether the subsequent mortgagees have a preferential right of redemption over a prior mortgages who has obtained a decree for foreclosure,' and he then goes on to hold that the plaintiffs, not having been made parties in the former foreclosure suit, cannot in any way be affected by what happened in that suit, and finally, after discussing some rulings, to which I shall refer later, accepted the dictum of Dr. Gour already quoted and dismissed the appeal The defendants come here in second appeal and their first ground is that the learned District Judge has overlooked the fact that although the subsequent mortgagees are entitled to redeem the prior mortgage, the prior mortgagees who have already acquired the mortgagor's right by foreclosure, can after such redemption claim redemption of the subsequent mortgage.
3. It seems to me most unfortunate that the Courts below should have asked themselves which of the parties had 'the preferential' right to redeem. It seems to me clear beyond any controversy that both had a right of redemption, I prefer to regard, this litigation as being substantially two cross-suits which might well have been consolidated, as indeed They were for all practical purposes, having regard to the pleading and Issue No. 6 framed by the Trial Court and reiterated in the Appellate Court and tried out in both Courts. I think paragraph 21 of the written statement already quoted may be regarded as substantially a pliant in such a cross suit. I think this litigation really involves two suits, (1) by a puisne mortgages to redeem a prior mortgagee who had not made him a party in his suit on his own mortgage, and (2) by a person who had become the owner of the mortgaged property, and who had acquired the equity of redemption and, therefore, stands in the shoes of the mortgagor, to redeem an encumbrance. It seems to me that both are, prima facie, entitled to what they claim and the question for the Court under such circumstances when all the parties were before it and all the necessary evidence was on the record was to decide once and for all, having regard to the equities of the parties and to prevent further litigation, what the justice of the case demanded. In this view what 1 think we have to look at in this appeal, is not whether the decisions of the Courts below ware legally correct but whether we should now do what I think the Courts below should have done book at the consequences. If we uphold this decree the plaintiffs pay the decretal amount to the defendants, and the next day the defendants will inevitably file their suit to redeem the plaintiffs and so recover the property. All that the plaintiffs are entitled to is to get back their mortgage money. After all they are merely mortgagees and as such are liable to be redeemed by the owner of the prop arty, that is the mortgagor or whoever represents him. In this case the prior mortgagees, the defendants, having acquired the equity of redemption, stand in the shoes of the mortgagor and are the owners of the property. I should be content to stop here and base my decision on what seems to me to be required by the equities of the case. But, as it has been very ably argued, on behalf of the respondents, that the decisions of the various Courts except the Bombay decision are opposed to my view, I think I should consider those authorities. The Bombay ease, namely, Hassanbhai v. Umaji 28 B. 153 : 5 Bom. L.R. 892, it is conceded, is an authority in favour of the appellants, but it is argued that the facts there were different; that the decision itself is unreasonable and that it has not been followed by other Courts. In the Bombay case the mortgagor brought a suit to redeem the prior mortgage and got a decree but failed to pay the decretal amount within the time ordered and consequently the mortgage was foreclosed. Then the subsequent mortgagee brought a suit for sale on his mortgage, thereby it is laid offering the prior mortgagee the option of redeeming him. Although the facts are different, I do not think the principle of law involved is substantially different. Next, it is said that the decision of the Bombay Court is unreasonable, because if the puisne mortgagees had been made parties in the former (nit, as they should have been made, they would have had an undoubted right to redeem the prior mortgage, and it is said the prior mortgagee must not be allowed to take advantage of his own fault by depriving the subsequent mortgagees of their right to redeem the prior mortgage. This, I think puts, Dr. Gour's dictum, already quoted, in other words. Although it has been held that a subsequent mortgagee who should have been made a party to a suit on a prior mortgage but bad not been made a party, cannot in any way be affected by the decree in that suit, and cannot be put in a (sic) position than he would have been in if he bad been made a party, on the other hand, it seems to me, he cannot be put in a batter position than be would have been in if represented then. If be bed been made a party to the former suit, to doubt he could have redeemed the prior mortgage, but he would not thereby have obtained possession of the properly. What be now claims is, that, not having been made a party to the former suit, that decree must be considered a nullity, and that he is now entitled on redeeming the prior mortgage to become the owner of the whole property originally mortgaged. This manifestly he cannot do. The result of the former (nit undoubtedly was to vest the ownership of the property in the defendants and as such they most have a right to redeem the plaintiffs. The last argument is that the oilier High Courts have not followed the Bombay decision. It seems to me that this argument is based on the head note to the Bombay case which is very misleading. According to that it was 'Held, reversing the decree, that, H, the prior mortgager, had a right to redeem superior to that of V, the subsequent mortgagee.' Pat baldly like that it is most misleading. The High Court never held anything of the kind What they did hold was as reported on page 160: 'Looking to the substance end not to the form of the suit the plaintiff was clearly seeking relief on the basis of the right of a mortgagee. When the pleadings were complete it appeared that his mortgage was subsequent in date to that which Hassan had taken of the same lands and had foreclosed. The contest thus became one between on the one hand, a prior mortgagee in possession, who had obtained a decree absolute for foreclosure, and, on the other hand, a subsequent mortgagee who had not been made a party to the redemption suit in which that final decree for foreclosure was made.' Later on it is said: 'The next and main point for decision is whether, looking to the equities on both sides, Hassan, the prior mortgagee, who had already obtained a final decree for foreclosure against the mortgagors and was is possession, ought to have been given an opportunity to redeem Umaji, the subsequent mortgagee,' and they held that under the circumstances of the case he should be allowed to redeem the subsequent mortgagee. It seems to me, therefore, that the note in Dr. Gour's commentary on page 1130 in my opinion is not quite accurate, where he says: the right of the prior mortgagee to redeem the subsequent mortgagee on his acquiring the mortgagor's equity of redemption whether by foreclosure or sale in a suit to which the subsequent mortgagee was not a party has been categorically affirmed in Bombay while it has been as categorically denied by the Calcutta and other Courts,' The learned Vakil for the respondents has not been able to refer us to a single case in which the Bombay case has been dissented from. That case was published as long ago as 1934, and the cases that have been referred to really have hold nothing more than what is quite clear, namely, that a subsequent mortgagee who has not been made a party to a foreclosure decree is not affected by it. The Bombay case, however, has been unreservedly approved of and followed in the tare of Kedar Nath v. Saiyad Hafiz Ali 10 O.C. 356, decided by a Bench consisting of Messrs. Chamier and Griffin, both of whom were subsequently Judges of this Court. It was followed in the case of Charni v. Raj Bahadar 2 Ind Cas. 495 by Mr. Justice Karamt Hossain, and it was referred to by Mr. Justice Piggott in the case of Ram Piari v. Roghunath Singh 29 Ind. Cas. 794. That was a similar case to this one and Mr. Justice Piggott far from dissenting from the Bombay case decided not to follow it, not apparently because he did not approve of it but because there were no material on the record on which he could give the prior mortgagee a decree and he, therefore, left the parties to obtain such remedies as they might have in a further suit. I do not think it necessary to refer more specifically to any other of the many decisions which have been brought to our notice, except perhaps the case of Kedar Prosanna Lahiri v. Girindra Prosad Sukul 8 C.L. J.179. There the contest was between the first mortgagee and the second mortgagee who had both brought suits on their mortgages without making the other a party, and on getting a decree had purchased the mortgaged property, and it was there held that each party was entitled to redeem the other, but the preferable right to redeem was with the plaintiff who in that case was the subsequent mortgagee. The point tow before a us was not argued or decided and no cases were referred to. As I have already said, the decision of the Courts below in this case was legally right, but I do not think it was the proper decision to give, having regard to all the circumstances of the case and the pleadings of the parties. I would, therefore, allow the appeal, and allow the defendants to redeem the plaintiffs' mortgages, on payment to them the sum due on their mortgages in the next month of Jeth, If they fail to do so I would dismiss the appeal.
Gokul Prosad, J.
4. I agree in the order proposed and in the judgment of my learned brother. I have only to state that the result of our dismissing this appeal and suit would be to prolong this litigation. If the plaintiffs are allowed to redeem the prior mortgage in favour of the defendant who has now acquired the equity of redemption the result would be that the defendant prior mortgagee purchaser will bring a suit to redeem the puisne mortgage in favour of the plaintiffs and would get back the property on payment of the amount due under the plaintiffs' mortgages as also the amount which be has received from the plaintiffs in satisfaction of his prior mortgage or, in other words, the defendant would be placed back in the same position in which he would have been if he had been allowed to redeem the plaintiffs. Besides this, the plaintiffs would be in no better position by redeeming the mortgage in favour of the defendant. They would have after redemption their 3 bighas odd free from the mortgage and would only have a charge on the balance of the mortgaged property for the proportionate amount which they would have had to pay over and above the proportionate share due from their 3 bighas. From this aspect, too, the result of conceding to the plaintiffs' argument would be a suit for contribution by the plaintiffs against the owners of the remaining portion of the mortgaged property. So that in any case the plaintiffs would not benefit from the suit. The decree proposed by my learned brother fully meet a the justice of the case and gives effect to the equities between the parties and at the same time prevents useless multiplicity of proceedings. I agree in the order proposed.
5. The order of the Court is that this appeal is allowed, the defendant being given time to the 9th of June 1922 to redeem the plaintiffs' Mortgages on payment of the sum due on their mortgages on that date. In case of their failure to do so, this appeal will stand dismissed. Under the circumstances of this particular case we direct that the parties do bear their own costs of this litigation.