1. This appeal arms oat of a suit brought by the plaintiff-appellant for the redemption of a two-thirds share of Katra Gulab Singh situated in Kashmiri Bazar, Agra, The Katra originally belonged to Dhami Singh who left three sons, Jawala Prasad, Bhawani Shankar and Debi Shunkar, On the 28th November 1877 these three brothers mortgaged two stables and a house situated in Katra Gulab Singh in favour of Sakhden Rai. The mortgage was simple. On the 6th March 1878 the three brother mortgage the said Katra Galab Singh with other properties with possession in favour of Sheikh Abdullah. On the 30th May 1878 two of them, Bhawani Shankar and Jawala Prasad, mortgaged their two-thirds share of Katra Gulab Singh in favour of Durga Prasad.
2. On the 15th August 1879 Sakhdeo Rai sued on his mortgage of the 28th November 1877 without impleading Sheikh Abdullah or Durga Prasad and obtained a decree for sale, in execution of whish the mortgaged property, namely, two stables and a house in Katra Gulab Singh, was sold by auction and purchased by Sheikh Abdullah, the subsequent usufructuary mortgagee. On the 12th October 1879 Durga Prasad sued on his mortgage of the 30th May 1878 without impleading any of the prior mortgagess and got a decree for sale, in execution of which he brought to sale the two thirds share of his mortgagers in Katra Gulab singh and purchased it himself.
3. The present suit has been filed by the plaintiff-appellant, who is the son of Durg Prasad, for the redemption of the usufructuary mortgage of the 6th March 1878 in respect of that two-thirds share. The defendants are the pods of Sheikh Abdullah, One of them declaimed any interest in the mortgage; the other defendant pleaded that they had spent a considerable amount in the repairs and Improvements of the mortgaged property and that a sum of over a lac and seventy-six thousand was due to them under the mortgage. There were other pleas too, with which this appeal has no concern.
4. The Court of first instance held that the contesting defendants had spent Rs. 1,000 in repairs, that they were not entitled to claim the cost of any additions or improvements made by them, and that Rs. 8,343 5 4 were due to them on account of a two-thirds share of Katra Gulab Singh purchased by the plaintiff. It decreed the claim accordingly for redemption subject to the payment of the said amount. On appeal the lower Appellate Court allowed to the defendants a right to redeem the mortgage of the 28th November 1877 on the payment of the amount of the decree obtained en foot of that mortgage by Durga Prasad within a certain date, and further directed that if such payment was not made, it shall proceed to determine upon payment of what amount the plaintiff should be allowed to redeem the mortgage held by the defendants. In effect it recognised the right of the defendants, who had purchased two stables and a house in Katra Gulab Singh in satisfaction of the mortgage of the 28th November 1877, lo redeem the subsequent mortgage of the 30th May 1878 in preference to the plaintiff who by virtue of his purchase claimed a right to redeem the prior usufructuary mortgage of the 6th March 1878.
5. No question of preference is, however, really at issue No right of redemption was claimed by the defendants in their written statement or otherwise asserted in the course of the trial The rights of the original mortgagors have been split up. The defendants have purchased two stables and a house in Katra Gulab Singh in satisfaction of a prior mortgage and they are entitled to retain the same until some person entitled to redeem comes forward to pay the money due on that mortgage, The plaintiff holds the rights of a two of the mortgagors under the mortgage of the 30th May 1878 and has purchase the lights of two of the mortgagors in Katra Gulab Singh in satisfaction of that mortgage, A portion of the rights of the original mortgagors has thus vested in the defendants and another portion in the plaintiff; and the plaintiff cannot be allowed to redeem more than what he has purchased on payment of a proportionate share of the mortgage money any mere than the defendant can be allowed to redeem more than what they have purchased on payment of a cor-responding part of the mortgage-money.
6. The claim in the present suit is, however, confined to the redemption of the usufructuary mortgage of the 6th March 1878, and the plaintiff is clearly entitled to a decree for the redemption of that mortgage, so far as it relates to the two thirds share of his mortgagors, on payment of such proportionate amount as may be found doe on that mortgage, including the cost' of any repairs, that may have been carried out by the mortgagee, and free from any liability for such improvement as the mortgagee may have made, which were not needed for the protection or preservation of the mortgaged property. The proportionate mortgage money payable on account of such portion of the mortgaged property as has been purchased by the defendants in satisfaction of the prior mortgage, should be determined after excluding the prior mortgage money, computed as laid down in Motru Mal v. Durga Kunwar (1) 55 Ind. Cas. 969: 18 A. L. J. 396 : 38 M. L. J. 419 : 11 L. W. 529 : (1920) M. W. N. 338 : 2 U. P. L. Rule (P. C.) 75 : 22 Bom. L. Rule 553 : 32 C. L. J 121 : 42 A 364 : 47 I. A. 7) : 27 M. L. T. 319 : 25 C. W. N. 397 (P. C.). from the value of the said property inclusive of any interest chargeable after decree.
7. The learned Counsel for the defendants-respondents relies on the dncision in Yad Ali Beg v. Tuka Bam (2) 57 Ind. Cas. 535 : 48 C. 22 : (1920 : M. W. N. 369 : 28 M. L, T. 95 : 39 M. L. J. 147: 2 U. P. L. Rule Pat) 123 : 16 N. L. Rule 154 : 12 L. W. 503 : 22 Bom, L. Rule 1315 : 471, A. 207 : 25 C. W. K. 124 (P. C.), but in that case one of the mortgaged fields had been purchased by a third person before the mortgagee had sued to enforce his mortgage. In the present case the rights: of the mortgagors had not passed to any third parsons on the dates on which the suits on either of the mortgages of Sakhdeo Rai and Darga Prasad were filed. The mortgagors were parties to those suits; and the only effect of not making the prior or subsequent mortgagees parties to them was to leave their rights of sale or redemption unaffected. The father of the plaintiff and that of the defendants sub-sequently purchased the rights of the mortgagors in certain portions of Katra Gulab Singh in satisfaction of their respective mortgages: and the only manner in which the rights of the parties can now be properly safeguarded is by applying the principle recognised by Section 82 of the Transfer of Property Act (IV of 1882) and allowing redemption in respect of sash rights as have bean acquired by each party subsequent to the above suits. A reference has also been made to the case of Parasram Singh v. Pandohi 67 Ind. Cas 513 : 20 A. L. J. 40. In that case one of the parties had sued the mortgagors and obtained a decree for foreclosure without making the subsequent mortgagee a party to the suit, but no rights in the mortgaged property had been acquired by the subsequent mortgagee, Section 60 of the Transfer of Property Act lays down that where a mortgagee has acquired in part the share of the mortgagor, a person interested in the remaining portion of the mortgaged property is entitled to redeem the same on payment of a proportionate part of the mortgage-money. As observed in Dinanath v. Lachmi Narain25 A. 44(sic): A. W. N. (1903) 15.; Kallan Khan v. Mardan Khan 28 A. 155 : A. W. N. (1905) 225. and Munshi v. Daulat 4 A. L. J. 74 : 29 (sic), 263 : A. W. N. (1907) 49., where the integrity of a mortgage it broken, a mortgagor, who owns a part of the equity of redemption, can redeem his own part, but where the rights of the mortgagors have vested, as in this case, partly in a prior mortgagee aid partly in a subsequent mortgages after a suit had been brought by each of them to enforce his mortgage, neither the former can be compelled to redeem the whole nor fan he compel the latter to give up his interest in the share of the mortgagor which he has acquired.
8. The question of the costs of repairs and improvements claimed by the mortgagee does not present any difficulty. The parties agree that the cost of the repairs should be charged against the mortgaged property in connection with which sash costs have been incurred. The mortgagee has no right to claim any cost of the improvements made by him bat if he has re built any fallen portion in order to retain the in some which wag derivable from the same, he can legitimately get the cost thereof and charge the same on the property in connection with which such expense was, incurred. In other respects the mortgagee can only claim a right to remove the materials of any improvements which may have been made by him, unless the portions, so improved are such as can be allotted to him when a partition takes place, without impairing the rights of the plaintiff. Bat in no event he can alum the cist there of from the persons, who have acquired the rights of the mortgagors therein.
9. The appeal is, therefore, alloyed and the suit remanded to the lowar Appellate Court with a direction to re admit the appeal under its original number and to dispose of it in accordance with the directions above given. The costs here and hitherto will abide the result.