1. The plaintiff effected a mortgage of his property in favour of the 1st defendant and the father of defendants Nos. 2 and 3. Fourth defendant who got a transfer of the mortgage and her brother mortgaged their properties along with the mortgage right over the plaintiff's property to the 5th defendant. Plaintiff has brought this suit for redemption and the first Court granted a decree for redemption against all the defendants. On appeal the Subordinate Judge exonerated the 5th defendant and granted a decree for redemption against the 4th defendant. The plaintiff has preferred this second appeal.
2. It is contended by Mr. Narasimhachariar for the appellant that the decree against the 4th defendant alone is not correct and that he is entitled to a decree against the 5th defendant who has got only an encumbrancer's right over the mortgage right of the 4th defendant. [A]In a redemption suit the mortgagor is entitled to make, not only the mortgagee but all the persons who have derived title from the mortgagee, as parties to his action and the Court is hot debarred from granting relief to the mortgagor against the mortgagee as well as the persons who have derived title from the mortgagee. The contention of Mr. Muthiah Mudaliar for the respondent is that he has taken a mortgage of several items of property belonging to the 4th defendant and her brother and this mortgage right is only one of the items mortgaged to him and that the plaintiff cannot have a decree against him as he is not in the position of an ordinary sub-mortgagee and he relies upon Sections 60 and 62 of the Transfer of Property Act as supporting his contention. Section 60 provides for redemption of a mortgage and Section 62 provides for the redemption of a usufructuary mortgage. He relies on the wording of Clause (b) and contends that by the term mortgage only mortgagee is intended and not anyone who derives title from the mortgagee. Section 62 does not limit the right of the mortgagor to proceed only against the mortgagee in a redemption suit and in order to avoid multiplicity of proceedings the Court is not debarred from giving a decree in a redemption suit against persons who have derived title from the mortgagee. [A] The authorities on this point are clear. In Lysaght v. Westmacott (1864) 33 Beav. 417 : 55 E.R. 429 the facts were, the plaintiff granted a number of annuities to Mr. Westmacott who deposited the deeds with Lord Lisle as a security for the re-payment of a sum of 7,000. Mr. Lysaght instituted a suit against the executors of Westmacott and the executors of Lord Lisle for setting aside the securities on payment of the money actually advanced with interest. A decree was passed in favour of the plaintiff. The representatives of Lord Lisle objected to convey the estate and deliver up the deeds until the payment had been made to them of the amount found due to them from Westmacott. Sir John Romilly, M.R. decided against this contention. He observed 'that there may be a number of questions in contest between the mortgagee and sub-mortgagee, but the mortgagor cannot be kept out of his estate until they have been settled. In case like the present, the Court orders the money into Court and then allows the mortgagee and the sub-mortgagee to contest their right; but the mortgagor is allowed to go free.' In Set on on Judgments and Orders Vol. III, page 2011, the form of decree is as follows:'In a redemption action by the mortgagor, he is entitled, upon paying into Court, what was due from him to the original mortgagee to are conveyance by all the defendants without waiting until the accounts have been taken and the equities settled as between the original and derivative mortgagees.' [Lysaght v. Westmacott (1864) 33 Beav. 417 : 55 E.R. 429] Coote in his well-known book on Mortgages, Vol. II, page 1066, sums up the law thus: 'When the mortgagee has encumbered his mortgage, the redemption will be decreed on payment into Court by the mortgagor of the original debt; and upon such payment the mortgagor is entitled to a conveyance from the mortgagee and sub-mortgagee and delivery of the deeds at once, without waiting for the accounts to be taken between them.' The law under the Transfer of Property Act on this point is not different from the English Law of Mortgages. To hold otherwise would only result in multiplicity of actions with probably inconsistent results. Mr. Muthiah Mudaliar relies upon Ramchand v. Raj Hans 3 A.L.J. 517; A.W.N. (1906) 241 as supporting his contention that he is not bound to Surrender the property in execution of the decree in this suit; in other words, there should be no decree against him for possession. In that case the plaintiff mortgagor who sued for possession was directed to file a suit against the tenants who were let into possession by the mortgagee and a suit of that description was held to he If that decision is meant to lay down that no decree could be passed in a redemption against a person who derived title from a mortgagee, with all respect, I must hold that position not to be correct. In this case the 5th defendant having derived title from the 4th defendant is bound by the result of the redemption suit. The lower Appellate Court is, therefore, not right in exonerating the 5th defendant. I, therefore, set aside that portion of its judgment and direct that a decree be passed directing him to deliver possession of the mortgaged property to the plaintiff. In redemption cases it is usual for the Court to direct that the amount of mesne profits and costs be deducted from the amount payable to the mortgagee and that the balance be paid to him. In this case the plaintiff had been allowed mesne profits and costs and the Court should only pay to the 4th and 5th defendants the balance that remains after deducting the amount of mesne profits and costs. The respondents will pay the costs of this second appeal as well as the costs in the lower Appellate Court.