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Periakaruppa Pillai Vs. (Minor) Satyanarayanamoorthi - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtChennai
Decided On
Reported inAIR1937Mad136
AppellantPeriakaruppa Pillai
Respondent(Minor) Satyanarayanamoorthi
Cases Referred and Umeschandra Mandal v. Hemangachandra Maiti
Excerpt:
.....by the defendant having purchased item 7, the plaintiff is not entitled to redeem the entire mortgage property on payment of the mortgage amount but is entitled to redeem the item purchased by him on payment of a proportionate part of the mortgage amount, and (2) the suit is bad for non-joinder of lakshmi ammal and her son, the representatives of the mortgagor krishna iyengar. on the other hand they seem to clearly express the view that it is the normal right of the assignee of a portion of the equity of redemption to claim a redemption of the whole unless there was some conduct on his part to estop him from doing so. heward (1886) 32 ch d 430 seem clearly to indicate that if a person interested in the equity of redemption is known he ought to be made a party in order to safeguard..........by the defendant having purchased item 7, the plaintiff is not entitled to redeem the entire mortgage property on payment of the mortgage amount but is entitled to redeem the item purchased by him on payment of a proportionate part of the mortgage amount, and (2) the suit is bad for non-joinder of lakshmi ammal and her son, the representatives of the mortgagor krishna iyengar. in regard to the first contention mr. bhashyam iyengar relied on section 60, t.p. act, and on the decision of this high court in ganapathi bhatta v. beeru bhandary : air1927mad1039 . the general rule is that a mortgage is indivisible and that where more than one person is interested in the mortgaged property or where more properties than one are comprised in the mortgage, the mortgagee is entitled to insist.....
Judgment:

Venkataramana Rao, J.

1. This is a suit for redemption of a mortgage. One Muthayya Thevar mortgaged items 1 to 6 of the plaint schedule with one Krishna Iyengar who in his turn mortgaged items 1 to 7 in respect whereof he had the mortgage right and item 7 which belonged to him absolutely to the defendant under a deed of mortgage dated 7th June 1904. At a rent sale the plaintiff purchased a portion of item 3 and took symbolical delivery of the same subject to the mortgage in favour of the defendant. Then the plaintiff called upon the defendant to take a proportionate amount of the mortgage or allow him to redeem the entire mortgage (by payment of the entire mortgage amount). The defendant declined to accede to either of the courses suggested by the plaintiff. Then the plaintiff filed O.P. No. 28 of 1927 on the file of the District Munsif's Court of Ramnad and deposited a sum of Rs. 600, the amount which according to him was payable under the deed of mortgage in favour of the defendant and asked for delivery of possession of the properties but the defendant declined to receive the amount deposited in Court and the said amount still remains in the Court. One of the defences raised by the defendant was that on 10th June 1912, eight years subsequent to the mortgage in his favour, item 7 was purchased by him from Krishna Iyengar under a sale deed dated 10th June 1912 and the plaintiff cannot claim redemption of it. In pursuance of this objection the plaintiff expressed his willingness to give up his claim in respect of item 7. The defendant filed an application to implead Krishna Iyengar's widow Lakshmi Ammal as party defendant being the person interested in the other items of the mortgaged property. But the Court dismissed the application on the opposition of the plaintiff.

2. The main defences of the defendant are that the plaintiff is not entitled to redeem all the items even on payment of the entire mortgage amount and that Lakshmi Ammal and her son are necessary parties to the suit. The learned District Munsif negatived both the contentions and held that the plaintiff would be entitled to redeem items 1 to 6 upon payment of the proportionate share of the mortgage amount chargeable thereon, and that Lakshmi Ammal and her son were not necessary parties to the suit. This decision was confirmed on appeal by the learned Subordinate Judge. Mr. Bhashyam Iyengar on behalf of the defendant has raised two contentions before me: (1) the integrity of the mortgage having been broken by the defendant having purchased item 7, the plaintiff is not entitled to redeem the entire mortgage property on payment of the mortgage amount but is entitled to redeem the item purchased by him on payment of a proportionate part of the mortgage amount, and (2) the suit is bad for non-joinder of Lakshmi Ammal and her son, the representatives of the mortgagor Krishna Iyengar. In regard to the first contention Mr. Bhashyam Iyengar relied on Section 60, T.P. Act, and on the decision of this High Court in Ganapathi Bhatta v. Beeru Bhandary : AIR1927Mad1039 . The general rule is that a mortgage is indivisible and that where more than one person is interested in the mortgaged property or where more properties than one are comprised in the mortgage, the mortgagee is entitled to insist on redemption of the entire mortgage and neither the mortgagor nor any one of the mortgagors is entitled to redeem his share or a portion of the mortgaged property on payment of a proportionate amount. Section 60 engrafts an exception in cases,

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.

3. But that section does not say that if the mortgagor desires to redeem the entire mortgaged property he will be precluded from doing so. The recent decision of the Privy Council in Yadalli Beg v. Tukaram AIR 1921 PC 125 makes this position clear. In that case 16 fields were mortgaged in 1893. In 1896 the mortgagor sold one of the fields. Then in 1899 the mortgagee brought a suit to foreclose the mortgage without making the vendees of the one field sold by the mortgagor parties. A compromise decree was arrived at in that suit in and by which it was agreed that the mortgagor should pay certain amount within a particular period and in default nine fields of the mortgaged property including the field sold away by the mortgagor in 1896 should be foreclosed and the mortgagee should be put in possession; and the decree ran 'that the defendant mortgagor should stand absolutely debarred and foreclosed and from all equity of redemption in and to the mortgaged premises.' The vendees of the field sold in 1896 brought a suit claiming to redeem the nine fields which had been foreclosed. The Subordinate Judge was of opinion that the vendees were not entitled to redeem the whole property but only the field purchased by them on payment of the proportionate amount of the mortgage amount but this decree was reversed by the Judicial Commissioner who held that the vendees were entitled on payment of the entire mortgage amount to redeem the nine fields and accordingly directed the necessary amounts to be taken. This decision was confirmed in appeal by their Lordships of the Privy Council. Dealing with the argument regarding partial redemption their Lordships observe as follows:

The only question that arises is whether they are entitled to redeem the whole of the nine fields, or only the field conveyed to them subject to the mortgage over the whole. According to English Law the respondents would have been entitled to redeem the mortgage in its entirety subject only to the safeguarding of the equal title to redeem of any other person who had a right of redemption, a point which has not arisen so far in the present case. The respondents, being transferees of part of the security, by English Law, if it applied, would on the one hand be entitled to redeem the entire mortgage on the properties generally, and correlatively could not compel the mortgagee to allow them to redeem their part by itself. This would be so as the result of principle unless something had happened which extinguished the mortgage in whole or in part, such as an exercise of a power of sale originally conferred on the mortgagee by his security or such conduct on the part of the transferees as would estop them from asserting what normally would have been their right. Nothing of this kind is alleged in the case before their Lordships.

4. Therefore this case is authority for the following propositions, namely (1) the character of indivisibility exists not only with reference to the mortgagee but also with reference to the mortgagor, i.e., the mortgagee can insist upon the redemption of the entirety of the mortgage and the mortgagor or transferees of part of equity of redemption cannot insist upon a partial redemption of the mortgage. (2) But if the integrity of the mortgage is broken by the mortgagee, either by exercising the power of sale conferred under the deed of mortgage or by acquiring a portion of the property otherwise, the mortgagee will not be entitled to insist upon the redemption of the whole but must submit to a partial redemption in case the mortgagor or his assignee chooses to claim it, and (3) the mortgagor or anybody acquiring a partial interest from him will also lose a similar right of claiming redemption of the whole if by his conduct he has estopped himself from asserting what normally according to their Lordships' opinion would have been his right. Dealing with a case of the right of one of several mortgagors to redeem more than his share, their Lordships made the following observation:

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 these 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 any general principle different from that adverted to, but on the special circumstances of the transactions to which they related, circumstances which have nothing analogous to them in the facts now under review.

5. Therefore it is clear that one of several mortgagors or a purchaser of a portion of the equity of redemption in the mortgaged property is entitled to redeem the whole of the property subject to the equities which other persons may have, due provision being made for their rights. The proposition which Mr. Bhasyham Iyengar contends that once the integrity of the mortgage is broken, the mortgagor or assignee of a portion of the equity of redemption of the mortgaged property cannot insist upon the redemption of the whole is untenable in view of the above decision of the Privy Council. It is clear authority for the position that even though the integrity of the mortgage is broken by the conduct of the mortgagee, the mortgagee will be entitled to insist on the redemption of the whole unless by his conduct he is precluded from doing so. Such a right seems to be clear from Sections 91 and 92, T.P. Act. No doubt in Ganapathi Bhatta v. Beeru Bhandary : AIR1927Mad1039 , Devadass and Jackson, JJ., have taken a different view. With due respect to those learned Judges I am of opinion that they have misapprehended the obvservations of their Lordships of the Privy Council in Yadalli Beg v. Tukaram AIR 1921 PC 125. Referring to the decision of the Privy Council the learned Judges observe:

This decision does not govern the present case as the defendants have acquired the right of the mortgagors to the mortgaged property. The decision of the Privy Council case would have been different if the person who resisted the redemption had acquired in whole or in part the right to the equity of redemption from the mortgagor.

6. These observations seem to indicate that it is entirely dependent upon the will of the mortgagee whether he would preserve the integrity of the mortgage or not. I do not find any warrant for this view in the judgment of the Privy Council. On the other hand they seem to clearly express the view that it is the normal right of the assignee of a portion of the equity of redemption to claim a redemption of the whole unless there was some conduct on his part to estop him from doing so. The view which I am taking that in spite of the integrity of the mortgage having been broken by the mortgagee the assignee of a portion is entitled to redeem the whole receives support from a recent decision of the learned Chief Justice and King, J., in S.A. No. 269 of 1932. In that case there was a mortgage which comprised properties in Schedules A and B thereto. Subsequent to the mortgage the respondent in that case became the purchaser of Schedule B property. The appellant mortgagee filed a suit to enforce his mortgage without impleading the respondent, obtained a decree and in execution thereof purchased both Schedules A and B properties and subsequently sold away Schedule A property. The appellant then sued to recover possession of Schedule B property but he was obstructed by the respondent. Thereupon he filed a suit to get the balance of the mortgage amount after crediting the sale proceeds of Schedule A property. The respondent insisted on redeeming both Schedules A and B properties. The learned Judges held that he could. I am therefore of opinion that the plaintiff would prima facie be entitled to insist on a redemption of items 1 to 6 on payment of the entire mortgage amount.

7. But the question is, can he be given this relief in this suit? It is in this connexion that the second contention of Mr. Bhashyam Iyengar becomes relevant. No doubt Under Section 91, T.P. Act, he is entitled to institute a suit for redemption of the entire mortgaged property; but Under Order 34, Rule 1, Civil P.C., he is bound to make all persons interested in the equity of redemption parties. The section is imperative though no doubt subject to the other provisions in the Code, one of such provisions being Order 1, Rule 9. The object of Order 34, Rule 1 is to prevent multiplicity of actions and to adjust the equities of all parties interested in the equity of redemption. So normally speaking, if the plaintiff desires to have redemption of the entire mortgage, he ought to have made the representative of Krishna Iyengar parties. The observations of L.J. Lindley in Hall v. Heward (1886) 32 Ch D 430 seem clearly to indicate that if a person interested in the equity of redemption is known he ought to be made a party in order to safeguard his rights. But if he is not known or it was not possible to have made him a party, due provisions may be made in the decree for safeguarding his rights. Order 34, Rule 1, I think, in my opinion, makes it obligatory to make the persons interested in the equity of redemption if they are known as parties to the suit because it may be they may validly object to the plaintiff redeeming the whole or there may be equities shown which will prevent the plaintiff redeeming the whole. In this case the plaintiff not only deliberately omitted to make the representatives of Krishna Iyengar parties to the suit but opposed the application made by the defendant. The question again is, is the plaintiff precluded from getting any relief? Order 1, Rule 9 says:

No suit shall be defeated by reason of the misjoinder or non-joinder of parties and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it.

8. Therefore even though the plaintiff has omitted to make representatives of Krishna Iyengar parties to the suit, his suit cannot be defeated if relief otherwise can be granted to him: vide Shaha Saheb v. Sadhasiv Sapdu : AIR1919Bom135 and Umeschandra Mandal v. Hemangachandra Maiti : AIR1933Cal325 . The plaintiff is interested only in a portion of item 3 in the mortgaged property and he can be given relief by allowing him to redeem that part on payment of a proportionate amount. I therefore modify the decre of the lower appellate Court by directing redemption of the property purchased by him on payment of a proportionate amount of the mortgage. In fixing the value of this proportionate amount, credit will have to be given to the purchase of item 7. I therefore modify the decrees of the lower Courts accordingly and remit the case to the District Munsif 's Court at Ramnad to ascertain the proportionate amount payable on the portion of item 3 purchased by the plaintiff and pass a revised decree for redemption. As the suit had to be instituted owing to the obstructive conduct of the defendant and as the plaintiff has partially failed I direct each party to bear his or their own costs of this appeal and in the lower appellate Court. But the plaintiff will get his costs of the trial Court from the defendant as already awarded by the learned District Munsif. (Leave refused).


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