G.K. Misra, J.
1. Defendants 1 and 2 are the appellants against a confirming judgment. Plaintiff No. 1 and defendant No. 3 are brothers. Plaintiffs Nos. 2 and 3 are sons of plaintiff No. 1. The suit is for redemption on the allegation that the plaintiffs and defendant No. 3 executed a mortgage bond Ext. A dated 15-6-1935 for Rs. 200/- in favour of the father of defendants 1 and 2. The mortgagees were put in possession and under Section 17 of the Orissa Money Lenders Act the mortgage has been automatically discharged. There was an allegation in the plaint by way of amendment that defendant No. 3 transferred a portion of the suit property (It relates to item 2 of the schedule) in favour of defendant No. 4. The schedule given in the plaint contains two items not numbered. The dimension of the first item is 35 cubits x 20 cubits, and the dimension of the second item is 30 cubits x 20 cubits. For purpose of convenience these would be described in the judgment hereinafter as items 1 an 2.
2. Defendants 1 and 2 contested the suit and averred that Ext. A is a sale and not a mortgage. They further stated that item No. 1 of the plaint schedule was purchased by one Baidyanath Banerji in Court auction for which a sale certificate Ex. C dated 15-8-36 was obtained. With regard to the purchase by defendant-4, they denied knowledge.
3. Both the Courts concurrently found that Ex. A is a mortgage and not a sale. Mr. Mohanty does not assail this finding particularly in view of the averment in the written statement that defdts. 1 and 2 admitted that the purchase by Baidyanath was subject to their mortgage.
4. It is the common case of the parties that Baidyanath Banerjee purchased the equity of redemption of item No. 1 property by sale certificate Ex. C on 15-8-36. In the trial Court it was admitted by the counsel for both parties that it was not necessary to find out whether any sale was effected by defendant-3 in favour of defendant-4. Both the Courts have accordingly not recorded any finding whether the plaintiffs have any subsisting interest in item No. 2 property.
5. Mr. Mohanty advanced two contentions--(i) plaintiffs having sold away the equity of redemption in item No. 1 property to Baidyanath Banerjee, and defendant No. 4 having acquired title to item No. 2 property by the sale from defendant-3 and by adverse possession, plffs. have no subsisting title to the equity of redemption of the mortgage security, and so the suit for redemption at their instance is not maintainable; and (ii) even assuming that plaintiffs have a subsisting share in the equity of redemption in respect of item No. 2 property, they are entitled to redemption of that share only and not of the entire mortgage property.
6. I will first take up the second contention. On the authority of Nawab Azimut Ali Khan v. Jowahir Singh, 13 Moo Ind App 404(PC) Mr. Mohanty contends that a sharer in the equity of redemption cannot redeem the entire mortgage without the consent of the mortgagee. The facts involved in the Privy Council decision were as follows; An estate consisting of 16 villages had been mortgaged to the predecessor-in-title of the Nawab. The villages were then sold in execution of a money decree against the mortgagors. One village Hosseinpur was purchased by the plaintiffs, one village by A, one by B, one quarter of another village by C, and 12 3/4 villages by the mortgagee-Plaintiffs sued to redeem their village of Hosseinpore on payment of rateable proportion of the debt, but did not make A, B, and C parties to the suit. The mortgagee objected that they should have been made parties, and that the plaintiffs should have offered to redeem their villages also. The Sadar Court gave effect to the mortgagee's contention and dismissed the suit. Plaintiffs then filed a fresh suit claiming to redeem all the 31/4 villages excepting those purchased by the mortgagee. The mortgagee objected that the plaintiffs were only entitled to redeem their own village. The Sadar Court made a decree for redemption in terms of the plaint. On appeal, the Judicial Committee allowed the plaintiffs to redeem only, their own village of Hosseinpore on payment of rateable proportion of the debt. At pp. 407-408 their Lordships observed :
'The appellant does not, as their Lordships understand, contest the proposition that plaintiffs, as purchasers of the equity of redemption in a portion of the mortgaged premises, are entitled to redeem that portion on payment of some proportion of the mortgage debt.'
At pp. 415-416 their Lordships further observed-
'The Courts below, however, seem to their Lordships to have mistaken the effect of the former decision of the Sadar Court. It merely ruled out that the plaintiffs were bound to offer to redeem the villages in question. It did not rule that they were entitled to do so or to acquire the interest of the mortgagee in them against his will. It is unnecessary to determine in this suit, whether in peculiar circumstances of this case the former proposition is correct. Their Lordships are of opinion, that the latter cannot be supported. They think that the appellant, if desirous of retaining possession of those villages as mortgagee, is entitled to do so against the plaintiffs, whose right in that case is limited to redemption and recovery of their village of Hosseinpore upon payment of so much of the sum deposited in Court as represents the portion of the mortgage debt chargeable on that village.'
Thus the right of partial redemption was given effect to. The Privy Council by this decision holds that a sharer in the residue left after a mortgagee's purchase of part of the property cannot redeem the whole of that residue without the consent of the mortgagee. This proposition limiting the ordinary right of the mortgagor of a share to redeem the whole has not been accepted as correct in view of the later pronouncement of their Lordships of the Privy Council in Mirza Yadalli Beg v. Tukaram, 47 Ind App 207 : (AIR 1921 PC 125) and 13 Moo Ind App 404 (PC) has been practically overlooked.
The facts in the later Privy Council decision are that the mortgagee had foreclosed g villages without making the purchaser in the equity of redemption of one village a party. The purchaser sued to redeem the whole mortgage. It was contended that he was only entitled to redeem his own village. This contention was overruled and it was held that he was entitled to redeem the 9 villages. Lord Haldane observed at p. 212:
'The Judge in the original Court thought that the decisions of the Courts in India had established that one of the several mortgagors cannot redeem more than his share unless the owners of the other shares consent or do not object. Subject to proper safeguarding of the rights to redeem, which those owners may possess, their Lordships are of opinion that this is not so in India any more than in England. The decisions referred to when scrutinised, turn out to be based not on general principle different from that adverted to but on the special circumstances of the transactions to which they related.'
The last paragraph of Section 60, Transfer of Property Act, runs thus:
'Nothing in this section shall entitle a person interested in a share only of the mortgaged property to redeem his own share only, on payment of a proportionate part of the amount remaining due on the mortgage, except only where a mortgagee or if there are more mortgagees than one, all such mortgagees, has or have acquired, in whole or in part, the share of a mortgagor.'
This passage, in terms, clearly suggests that a sharer in mortgage ordinarily cannot be permitted to redeem his own share only on payment of a proportionate part of the amount remaining due on the mortgage except when the mortgagee or mortgagees hag or have acquired interest, in whole or in part of the share of a mortgagor. This was considered by their Lordships in 47 Ind App 207 : (AIR 1921 PC 125) and their Lordships came to the conclusion that it enables one of the several mortgagors to redeem the entire mortgage, Raghunath Prasad v. Jamna Prasad, ILR 29 All 263, Jai Govind Singh v. Abhairaj, AIR 1924 Oudh 40 and Dinkarrao v. Shamrao, AIR 1930 Nag 173, relied upon by Mr. Mohanty, are in line with 13 Moo Ind App 404 (PC) and cannot be held to be laying down law in view of the pronouncement of the Privy Council in 47 Ind App 207 : (AIR 1921 PC 125). The position of law can, therefore, be taken to be settled that one of the several mortgagors has the right to redeem the whole mortgage. It is regrettable that the learned Advocates for both the parties in course of their argument did not bring 47 Ind. App. 207 : (AIR 1921 P C 123) to my notice.
7. It is next contended by Mr. Mohanty that Baidyanath Banerjee, the purchaser of the equity of redemption in item No. 1 property, is not a party to the suit, and the suit for redemption in his absence is not maintainable. Reliance was placed on Order 34, Rule 1, C. P. C. which lays down that subject to the provisions of this Code, all persons having an interest either in the mortgage security or in the right of redemption shall be joined as parties to any suit relating to the mortgage. Order 34, Rule 1, by its very terms, is subject to the provisions of Order 1, Rule 9, C. P. C. which enacts that no suit shall be defeated by reason of the misjoinder or non-joinder of the parties, and the Court may in every snit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it.
The question, therefore, arises whether by reason of non-joinder of Baidyanath Banerjee, the controversy regarding the right of redemption of the plaintiff vis-a-vis the mortgagees can be effectively determined in the absence of Baidyanath Banerjee. To decide such questions, two tests were laid down by Sir Ashutosh Mukherjee in Jogendranath Singh v. Secy. of State, 16 cal LJ 385. Those for determining whether a particular defendant is a necessary party to the suit are--(i) there must be a right to some relief against him in respect of the matter involved in the suit, and (ii) his presence is necessary in order to enable the court effectually and completely to adjudicate upon and settle all questions involved in the suit.
In view of the pronouncement of their Lordships of the Judicial Committee in 47 Ind App 207: (AIR 1921 PC 125) that one of the several mortgagors can redeem the entire mortgage, it has now been settled by a series of decisions of the Patna High Court that the co-mortgagors are not necessary parties in a suit for redemption filed by one of the mortgagors. If one of the co-mortgagors is entitled to redeem the entire mortgage, the omission to implead some of the persons who are also interested in the equity of redemption does not affect the suit for redemption brought by one of the mortgagors. It is unnecessary to multiply authorities on the point and it would be sufficient to refer to Bansidhar Pandey v. Masudan Singh, AIR 1962 Pat 191 which is on all fours with, the facts of this case and reviewed all the previous Bench decisions of that Court. In that case, the mortgage security consisted of an area of 3.60 acres. Plaintiff, one of the mortgagors, did not implead the owners of the equity of redemption with regard to .39 acre. Their Lordships allowed the decree for redemption of the entire mortgage security holding that the mortgagor was not necessary party to the suit and the omission to implead him was not fatal.
8. In this case, the entire mortgage-security consisted of items 1 and 2 of the disputed property. The mortgage security is indivisible and one. If the plantiffs can establish that they have a share in the equity of redemption of item No. 2 property they are entitled to redeeem the entire mortgage-security consisting of both the items even though Baidyanath Banerjee is not a party to the suit.
The second contention of Mr. Mohanty has no force and must be overruled.
9. The first contention of Mr. Mohanty that in the absence of a finding that the plaintiffs have a subsisting share in item No. 2 property, their right of redemption cannot be declared is correct. Both the courts failed to exercise their jurisdiction in not recording a finding as to whether the plaintiffs have a subsisting interest being misguided by the concession of the Advocates for both parties that it was not necessary to determine the point. I would accordingly remand the suit with a direction that the trial court would frames the following two issues and record its findings after giving full opportunity to the parties to lead evidence. Those issues are :--
i) Did defendant No. 4 acquire a title in respect of the entire item No. 2 property by the sale in his favour by defendant No. 3, though the plaintiffs were not parties to the sale?
ii) Has defendant No. 4 acquired? title by adverse possession to item No. 2 property?
If after determination of those issues, the trial Court comes to the conclusion that the plaintiffs have no subsisting interest in the equity of redemption of any portion of item No. 2 property, plaintiffs' suit must fail. If the finding be to the contrary, the suit for redemption must be decreed.
10. In the result, the second appeal is allowed and the suit is remanded to the trial Court fordisposal in accordance with the observations madeabove. Costs to abide the result.