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D. Deynan Kunhathamma Vs. P. Avulla and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1925Mad351
AppellantD. Deynan Kunhathamma
RespondentP. Avulla and ors.
Cases ReferredMirza Yadelli Beg v. Tukaram A.I.R.
Excerpt:
- .....mortgaged to the second defendant. the subordinate judge held that the plaintiff was entitled to a decree for redemption of her share alone, but, as the plaintiff was not willing to take such a decree, her suit has been dismissed, and sow in appeal she contends that she is entitled to redeem the whole of the property on payment of the whole of the mortgage amount. this is in accordance with the decision in huthasanan nambudri v. parameswaram nambudri (1899) 22 mad. 209 and also the decision in mora joshi v. ramachandra dinkar joshi (1891) 15 bom. 24 and narayan v. ganpat (1897) 21 bom. 619 but the former decision was expressly dissented from in a later one reported as rathna mudali v. perumal reddy (1912) 38 mad. 310. our attention has, however, been called to a very recent ruling of the.....
Judgment:

1. In this case the plaintiff is the owner of one share in the equity of redemption of the plaint properties which have been mortgaged to the second defendant. The Subordinate Judge held that the plaintiff was entitled to a decree for redemption of her share alone, but, as the plaintiff was not willing to take such a decree, her suit has been dismissed, and sow in appeal she contends that she is entitled to redeem the whole of the property on payment of the whole of the mortgage amount. This is in accordance with the decision in Huthasanan Nambudri v. Parameswaram Nambudri (1899) 22 Mad. 209 and also the decision in Mora Joshi v. Ramachandra Dinkar Joshi (1891) 15 Bom. 24 and Narayan v. Ganpat (1897) 21 Bom. 619 but the former decision was expressly dissented from in a later one reported as Rathna Mudali v. Perumal Reddy (1912) 38 Mad. 310. Our attention has, however, been called to a very recent ruling of the Privy Council reported as Mirza Yadelli Beg v. Tukaram A.I.R. 1921 P.C. 125 in which it is held that, subject to the safeguarding of the equal title to redeem of any other person who had a right of redemption, the owner of a partial equity of redemption is entitled to redeem the entire mortgage. It follows that if the plaintiff is to be allowed to redeem the entire mortgage, we must in accordance with the above ruling provide for safeguarding the in terests of her co-owners. It would be quite possible for the plaintiff to obtain a decree for redemption and then in collusion with the mortgagee allow that decree to become barred by non-payment) of the mortgage amount and, consequently, deprive her co-owners of their right to redeem. We think that in this case if will be admissible to send the case down to the lower Appellate Court in order to ascertain the amount due upon the mortgage, including the value of improvements and to pass an order directing the plaintiff to deposit that amount in Court within three months of its ascertainment, and directing on such deposit being made a decree for redemption to be passed. If the plaintiff fails to deposit the amount her suit will have to be dismissed. We, therefore, send back the suit to the lower Appellate Court for disposal in the light of the above remarks.

2. Ordinarily a mortgagee is entitled to his costs : but, as he has failed in this Court the plaintiff would be entitled to her costs so far as this second appeal is concerned; but considering the fact that the learned Subordinate Judge's decision was in accordance with the latest ruling of this Court and was arrived at before the decision of the Privy Council was reported as Mirza Yadelli Beg v. Tukaram A.I.R. 1921 P.C. 125, we think that each party should bear his own costs in this second appeal.


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