Skip to content


Ganpatia Vs. Smt. Chhoti and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtRajasthan High Court
Decided On
Case NumberSecond Appeal No. 256 of 1970
Judge
Reported inAIR1974Raj77; 1973()WLN413
ActsTransfer of Property Act, 1882 - Sections 60
AppellantGanpatia
RespondentSmt. Chhoti and anr.
Appellant Advocate J.S. Rastogi, Adv.
Respondent Advocate P.C. Bhandari, Adv.
DispositionAppeal dismissed
Cases ReferredMoro Joshi v. Ram Chandra Dinkar Joshi
Excerpt:
.....allotted between the two mortgagors, the right of smt. chhoti to redeem the whole mortgage subsits. the mortgagee and the co-mortgagor smt. devalia cannot defeat that right. - - the right to redeem in part is given to a mortgagor as a privilege in the exceptional case noted above to avoid multiplicity of suits and in none else. according to bombay high court some of the co-sharers are entitled to redeem and can only be allowed to redeem the whole property leaving the mortgagee to bring a suit for partition like any other co-sharer. there is no gainsaying, the fact that unless exceptional circumstances exist a mortgage has to be redeemed in entirety this would be clear from the concluding para of section 60 of the transfer of property act, 1882, which is as follows; devalia to bring.....c.m. lodha, j.1. this is a defendant-mortgagee's second appeal arising out of a suit for redemption of mortgage in respect of a house described in para no. 1 of the plaint and situated in the town of dholpur.2. the facts not now in dispute are that the house in question was jointly owned by the plaintiff-respondent smt. chhoti and respondent-defendant no. 2 smt devalia, whose husbands loka and chhitariya respectively were brothers. after their husbands had died smt. chhoti and smt. devalia, mortgaged the house for a sum of rs. 1000/-in favour of the appellant-defendant no. 1 ganpatia by a registered deed dated 5-6-1962. the mortgagee rented out the mortgaged house to the mortgagors and the rent agreed was' equal to the interest on the mortgage money. it further appears that smt. devalia.....
Judgment:

C.M. Lodha, J.

1. This is a defendant-mortgagee's second appeal arising out of a suit for redemption of mortgage in respect of a house described in para No. 1 of the plaint and situated in the town of Dholpur.

2. The facts not now in dispute are that the house in question was jointly owned by the plaintiff-respondent Smt. Chhoti and respondent-defendant No. 2 Smt Devalia, whose husbands Loka and Chhitariya respectively were brothers. After their husbands had died Smt. Chhoti and Smt. Devalia, mortgaged the house for a sum of Rs. 1000/-in favour of the appellant-defendant No. 1 Ganpatia by a registered deed dated 5-6-1962. The mortgagee rented out the mortgaged house to the mortgagors and the rent agreed was' equal to the interest on the mortgage money. It further appears that Smt. Devalia sold her undivided half share in the property to the mortgagee Ganpatia. On 23-3-1963 plaintiff Smt. Chhoti filed suit for redemption of the whole house against Ganpatia and impleaded Smt. Devalia also as a proforma defendant. The learned trial Court held that the plaintiff can claim only partial redemption of the property to the extent of her share on payment of Rs. 500/- and directed a preliminary decree to be drawn in accordance with Order XXXIV, Rule 7, C. P. C. On appeal by the plaintiff, the learned Civil Judge No. 1, Bharatpur modified the judgment and decree of the trial court as follows:--

'This appeal partly succeeds and is hereby allowed to the effect that the plaintiff shall be entitled to redeem her half share in the property on payment of Rs. 500 as mortgage money. She shall, however, be entitled to recover possession of the whole of the property on payment of the above mortgage debt. On payment of Rs. 500/- by the plaintiff to defendant No. 1, the latter shall reconvey half of the property to the plaintiff and shall also hand over possession of the whole of the property to her. In case of default in payment of the mortgage amount by the plaintiff within a period of 3 months, she shall be debarred from redeeming the property in future.'

3. Two points have been submitted for decision:

(i) Whether the plaintiff is entitled to redeem the whole mortgage?

(ii) In case the plaintiff is held entitled to redeem only her half share should a decree for partition be granted in this very suit?

4. Learned counsel for the appellant mortgagee has urged that a suit for partial redemption can be decreed in the facts and circumstances of the present case. He has relied on V. Ramaswami v. Kailasa Thevar AIR 1951 SC 189; Ghasiram v. Hiralal, AIR 1954 Madh Bha 67, Sidheshvar v. Ganpatrao AIR 1926 Bom 303. Khiarajmal v. Deim (1905) ILR 32 Cal 296 (PC) and Subba Rao v. Balusu Buchi AIR 1923 Mad 533. On the other hand learned counsel for the plaintiff-respondent has urged that the integrity and indivisibility of the mortgage must be maintained and the plaintiff is entitled to redeem the whole mortgage. He has placed reliance on Mamu v. Kuttu (1883) ILR 6 Mad 61. Subba Rao v. Balusu Buchi AIR 1923 Mad 533; Mirza Yadalli Beg v. Tukaram AIR 1921 PC 125, Ghulam Sarwar Khan v. Abdul Wahab Khan AIR 1949 PC 330, Ramaswami v. Subramania AIR 1967 Mad 156, Alekha v. Jagabandhu AIR 1971 Orissa 127, Moro Joshi v. Ram Chandra Dinkar Joshi (1891) ILR 15 Bom 24.

5. In AIR 1951 SC 189 their Lordships observed that the general law is that a mortgage decree is one and indivisible and exceptions to this rule are admitted in special circumstances where the integrity of the mortgage has been disrupted at the instance of the mortgagee himself, for example when there is severance of the interests of the mortgagors with the consent of the mortgagee or a portion of the equity of redemption is vested in the latter. These observations were, however, made by the learned Judges while dealing with the Madras Agriculturists' Relief Act, and it was held that the said Act is a special statute which is giving relief not to debtors in general but only to a specified class of debtors viz. those who are agriculturists as defined in the Act and to this extent it was held that it trenches upon general law.

6. In AIR 1954 Madh Bha 67 the learned Judge held that when there has been a severance of the security and the integrity of the mortgage has been broken, the plaintiff cannot insist on redeeming the share purchased by the mortgagee-appellant against his will. For, the effect of the acquisition of such share in the mortgaged property is to extinguish the mortgage 'pro tanto' in respect of that part. It was further observed that after the acquisition of a share of the property by the mortgagee, the normal right of a sharer in the residue is to redeem the whole residue, and the part acquired by the mortgagee cannot be redeemed.

7. In AIR 1926 Bom 303 Macleod C. J. held that it is open to the mortgagor to redeem the remaining properties only on a purchase by the mortgagee of equity of redemption in one of the mortgaged properties.

8. In (1905) ILR 32 Cal 296 it was held in the facts and circumstances of that case that redemption should be allowed in part.

9. In AIR 1923 Mad 533 Krishnan J. observed as follows: --

'Taking the first question first there can be no doubt that under Section 60 of the Transfer of Property Art a person entitled to a share only on payment of his proportionate share of the mortgage money except in the only case where the mortgagee or when there are more mortgagees than one, all of them has or have acquired in whole or in part the share of a mortgagor. In fact the rule is that a mortgage should be redeemed as a whole; the right to redeem in part is given to a mortgagor as a privilege in the exceptional case noted above to avoid multiplicity of suits and in none else.'

10. In (1883) ILR 6 Mad 61 the learned Judges were of the view that where a mortgagee in possession acquires a right to a share in the property mortgaged, he cannot be compelled to surrender the mortgaged property on payment of the debt, or any part of it on payment of a proportionate amount of the debt, until the mortgagor has, by a proper suit for partition ascertained definitely the shares of the co-owners.

11. In AIR 1921 PC 125 their Lordships were pleased to hold that it is not the law in India that one of several mortgagors cannot redeem more than his share unless the owners of the other shares consent or in not object. Subject to proper safeguarding of the right to redeem which these owners may possess, one of the several mortgagors can redeem the entire mortgage.

12. In AIR 1949 PC 330 their Lordships recognised the general principle that except by agreement between the mortgagee and mortgagor a mortgage security is indivisible. (See AIR 1922 Madras 209 for example).

13. In (1891) ILR 15 Bom 24 it was laid down that the owner of a share in the equity of redemption need not obtain partition before suing for redemption. He is entitled to redeem the whole mortgage, and the fact that, the mortgagee has himself purchased a portion of the equity of redemption does not defeat that right.

14. It would thus appear that High Courts are not unanimous on the question whether a suit for partial redemption of an undivided property belonging to several co-sharers can lie. According to Bombay High Court some of the co-sharers are entitled to redeem and can only be allowed to redeem the whole property leaving the mortgagee to bring a suit for partition like any other co-sharer. The decisions of the Madras High Court are not uniform. According to (1883) ILR 6 Mad 61 they are not entitled to redeem the mortgage wholly or partly until first they have ascertained their shares in a suit for partition but in a later case AIR 1923 Mad 533 however, it has been held that a co-sharer can be allowed in the same suit to get a decree for partial redemption and partition. There is no gainsaying, the fact that unless exceptional circumstances exist a mortgage has to be redeemed in entirety This would be clear from the concluding para of Section 60 of the Transfer of Property Act, 1882, which is as follows;--

'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.'

15. It appears to me that the character of indivisibility of the mortgage exists not only with reference to the mortgagee but also with reference to the mortgagor and save by special arrangement between all the parties interested, neither the mortgagor nor the mortgagee, nor persons acquiring a partial interest through either can obtain relief under the mortgage except in consonance with the principle of indivisibility. In the present case there is no controversy that the house is undivided. It is also not disputed that Smt. Deyalia sold her share of the mortgaged property to the mortgagee without the consent and without, knowledge of the plaintiff Smt. Chhoti. Thus so long as the property is not divided and specific portion allotted between the two mortgagors, the right of Smt. Chhoti to redeem the whole mortgage subsists. The mortgagee and the co-mortgagor Smt. Devalia cannot defeat that right. Thus in the pre-sent case there being no consent of Smt. Chhoti, her right to redeem the entire mortgaged property cannot be refused, I am, therefore, of opinion that the plaintiff is entitled to redeem the whole mortgage on payment of Rs. 1000/- being the mortgage money and it will be open to the mortgagee who has purchased the share of Smt. Devalia to bring a suit for partition like any other co-sharer.

16. In this view of the matter it is not necessary to examine the second point.

17. In the result. I uphold the judgment and decree by the learned Civil Judge. No. 1. Bharatpur though on different grounds and dismiss this appeal. There will be no order as to costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //