1. In order to arrive at a correct decision in this second appeal, it is necessary to set out the facts not only in detail but also with precision. In the decisions of the courts below there is considerable confusion of thinking both on the question of law as well as on the questions of fact. To say the least I have derived a very little assistance from the decisions rendered by the courts below.
2. Naraina was the owner of the land with which we are concerned. He mortgaged a parcel of this land (hereinafter referred to as the first parcel) to Hari Singh, Chand Singh and Kaka Singh sons of Bhola Singh on 23-12-1984 which will be equal to 1927 A. D. In the year 1928 A. D. he created a further charge on this very land in favour of the mortgagees. He again mortgaged another parcel of the land (hereinafter referred to as the second parcel of land) to Teku and Harnama. Teku sold his mortgagee rights in the second parcel of land to the extent of 1/2 to Hari Singh, Chand Singh and Kaka Singh. Naraina then died. He was succeeded to by Roor Singh. On the death of Roor Singh, his widow Smt. Bhagwan Kaur created a fresh mortgage on the said two parcels of land, along with some other land in favour of Chand Singh, Mukhtiar Singh and Nihal Singh sons of Sadha Singh. The mortgagees of the first parcel of land are the plaintiffs and the mortgagees from Smt. Bhagwan Kaur (hereinafter described as defendant No. 1) are the parties to the present litigation.
3. It is also alleged that Smt.Bhagwan Kaur relinquished her right of redemption in favour of her daughter but the lower appellate Court found that there was, in fact, no valid relinquishment. This matter does not require any further consideration.
4. Defendant No. 1 applied to the Collector under the Redemption of Mortgaged Lands Act for redemption of the previous mortgage in favour of the plaintiffs. During the pendency of the application Smt. Bhagwan Kaur sold the equity of redemption and whatever land she had obtained from Naraina to the plaintiffs. The plaintiffs in the application for redemption before the Collector urged that the same was not maintainable because they were no longer the mortgagees of the land. They had become the owners of the equity of redemption and the mortgage had merged into it. This connection was overruled. An order for redemption was passed in favour of defendant No. 1. In consequence of that order defendant No. 1 took possession of the land.
5. This led to the present suit by the plaintiffs for possession of the land on the ground that the order of redemption passed by the Collector was illegal in as much as there was no subsisting mortgage, which could be redeemed. The suit was contested by defendant No. 1. A large number of issues were framed on the pleadings of the parties and they are set out below:--
1. Whether the defendants have taken possession of the disputed land in execution of the order of Collector, Sangrur dated 22-1-1959?
2. If issue No. 1 is proved whether the suit in the present form is maintainable?
3. Whether the order of the Collector dated 22-1-1959 whereby he ordered the redemption of the disputed land is illegal and as such is not binding on the plaintiffs?
4. Whether Khasra numbers mentioned in paras Nos. 4 and 5 of the plaint have been wrongly described?
5. Whether Bhagwan Kaur mortgaged the disputed land with defendant No. 1 for a period of five years? If so what is its effect?
6. Whether Bhagwan Kaur was not the owner of the disputed land when the same was mortgaged by her in favour of defendant No. 1?
7. Whether land measuring 11 Bighas and 16 biswas described in para No. 5 of the plaint was sold by one Teku in favour of the plaintiff? If so what is its effect?
8. Whether Bhagwan Kaur on 14-7-1958 sold the disputed land along with some other land to the plaintiff and Karnail Singh defendant No. 2? If so what is its effect?
9. Whether the suit is properly valued for purposes of court-fee?
10. Whether the plaint has not been amended in accordance with the order of the court dated 16-5-1959?
11. Whether defendant No. 1 had applied to the Collector for redemption of a part of the mortgaged property? If so what is its effect?
It is not necessary to advert to these issues. The controversy in the lower appellate Court really centred round two matters, (1) Whether the order of the Collector was valid in view of the plea raised by the plaintiffs that the mortgage in their favour no longer subsisted; and (2) whether there could be a claim for partial redemption. On the facts, it appears to me that the second matter is inconsequential. It is only the first matter which is of real consequence. The Courts below without understanding the import of Section 101 of the Transfer of Property Act, 1882 proceeded to dismiss the plaintiffs' suit on the basis of that provision. It was concluded that the sale of the equity of redemption to the plaintiffs did not put an end to the mortgage in their favour. The plaintiffs being dissatisfied have now come up in second appeal.
6. Mr. Atma Ram, the learned counsel for the plaintiffs contends that by purchasing the equity of redemption, they became the owners of the land which was under mortgage with them. On the date the Collector ordered redemption, there was no subsisting mortgage which defendant No. 1 could redeem. In my opinion, there is force in this contention and it must prevail. The plaintiffs' suit could not be dismissed on the basis of Section 101 of the Transfer of Property Act. It does not apply, as would be clear from its plain language. Section 101 is in the following terms:--
'Any mortgagee of, or person having a charge upon, immovable property, or any transferee from such mortgager or charge-holder, may purchase or otherwise acquire the rights in the property of the mortgagor or owner, as the case may be, without thereby causing the mortgage or charge to be merged as between himself and any subsequent mortgagee of, or person having a subsequent charge upon, the same property; and no such mortgagee or charge-holder shall be entitled to foreclose or sell such property without redeeming the prior mortgage or charge, or otherwise than subject thereto.'
It is true that where a mortgagee purchases equity of redemption, he may keep the mortgage alive for his own defence as again the puisne encumbrancer. But this does not mean that he is obliged to do so. In the instant case there was no question of plaintiffs keeping alive the mortgage in their favour for defence. They claim that by reason of purchase of the equity of redemption, the mortgage in their favour was wiped out. The question of intention to keep it alive does not arise. Moreover, the plaintiffs did not keep it alive. It is also equally well settled that the union of a charge and ownership of an estate amounts to merger because a lesser estate is drowned in the bigger. A man cannot be his own debtor. This is precisely what happened when the first mortgagees could in no case redeem the first mortgage and dispossess them when the plaintiffs had become the owners of the land by reason of the applicability of the doctrine of merger.
7. For the reason recorded above, I allow this appeal, set aside the judgments and decrees of the Courts below and decree the plaintiffs' suit.
8. However, what I have said will not affect the mortgage made by Smt. Bhagwan Kaur in favour of defendant No. 1. The only remedy of the plaintiffs would be to redeem it in accordance with law.
9. Appeal allowed.