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Jagir Singh and ors. Vs. Atma Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtPunjab and Haryana High Court
Decided On
Case NumberSecond Appeal No. 1122 of 1978
Judge
Reported inAIR1979P& H70
ActsTransfer of Property Act - Sections 60
AppellantJagir Singh and ors.
RespondentAtma Singh and ors.
Cases ReferredShah Ram Chand v. Parbhu Dayal
Excerpt:
.....the constitution. - ' this well-settled law does not apply to the present case, inasmuch as the mortgagees have already disintegrated the mortgage to the extent of three-fourths of the land by agreeing to its redemption......redemption obviously does not arise because the mortgage subsists as to the one-fourth of the suit land. if instead of one-fourth, say one-eighth share was sought to he redeemed, the objection on the ground of partial redemption might have been sustained. all the same, learned counsel for the mortgagees pressed into service the following proviso to s. 60 of the t. p. act:--'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.'2. it is true that disintegration of the.....
Judgment:

1. In this appeal, the mortgagees-defendants have raised the question of partial redemption. The trial Court decreed the suit, filed by the mortgagors, for redeeming one-fourth of the mortgaged land. Its decision has been upheld by the lower appellate Court. The concurrent finding of the two courts below that the remaining three-fourths of the mortgaged land has already been redeemed by the mortgagors, is unassailable. The end-result is that only one-fourth of the mortgaged land, which is the subject-matter of the suit, remains. In this situation, the question of partial redemption obviously does not arise because the mortgage subsists as to the one-fourth of the suit land. If instead of one-fourth, say one-eighth share was sought to he redeemed, the objection on the ground of partial redemption might have been sustained. All the same, learned counsel for the mortgagees pressed into service the following proviso to S. 60 of the T. P. Act:--

'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.'

2. It is true that disintegration of the mortgage security results in great injustice to a mortgagee. The Judicial Committee in Nilkant v. Suresh Chunder, ILR (1886) 12 Cal 414: 12 Ind App 171 (PC) observed:--

'It would put him (the mortgagee) to a separate suit against each purchaser of a fragment of the equity of redemption though purchasing without his consent, and he would have separate suits against each of them, and suits in which no one of the parties would be bound by anything which took place in a cult against another. Different proportions of value might be struck in the different suits, and the utmost confusion and embarrassment would he created.'

This well-settled law does not apply to the present case, inasmuch as the mortgagees have already disintegrated the mortgage to the extent of three-fourths of the land by agreeing to its redemption. Thus the redemption of the surviving mortgage to the extent of one-fourth of the land cannot be said to he partial. Shah Ram Chand v. Parbhu Dayal, AIR 1942 PC 50 cited by the learned counsel for the mortgagees is distinguishable on facts.

3. In the result. I do not find any merit in the appeal and the same is here-by dismissed. No order as to costs.

4. Appeal dismissed.


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