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Chandi Charan Roy and ors. Vs. Siraj Mia - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1927Cal479
AppellantChandi Charan Roy and ors.
RespondentSiraj Mia
Cases ReferredRagho Salvi v. Balkrishna Sakaram
Excerpt:
- .....defendant in pous 1329, and that tender had been refused by the defendants. it accordingly gave a decree for redemption of the mortgage on deposit of rs. 25 by the plaintiff within two months of the date of the decree and ordered that an account be taken of the usufruct enjoyed by the defendants from the date of the tender up to the date of recovery of possession by the plaintiff.2. in appeal before me various objections have been taken to the decree of the subordinate judge. the first is that only one of the mortgagors has appealed and, therefore, it is contended that he is only entitled to redeem his share of the mortgaged property. the second objection taken to the decree is that the appeal should have failed because the other mortgagors were not brought on the record either as.....
Judgment:

Cammiade, J.

1. This is an appeal by the mortgagees-defendants in a suit for redemption of the mortgage. At the trial the defendants had alleged that there had been a sale to them and not a mortgage but that contention of theirs has been given up. The suit was dismissed in the first Court, which found that there had been a sale. The Court of appeal found that the transaction was a usufructuary mortgage the principal amount borrowed being Rs. 25 and the intention being that the usufruct of the land should be enjoyed in lieu of interest. That Court further found that the plaintiff had tendered the amount of the mortgage-debt to the defendant in Pous 1329, and that tender had been refused by the defendants. It accordingly gave a decree for redemption of the mortgage on deposit of Rs. 25 by the plaintiff within two months of the date of the decree and ordered that an account be taken of the usufruct enjoyed by the defendants from the date of the tender up to the date of recovery of possession by the plaintiff.

2. In appeal before me various objections have been taken to the decree of the Subordinate Judge. The first is that only one of the mortgagors has appealed and, therefore, it is contended that he is only entitled to redeem his share of the mortgaged property. The second objection taken to the decree is that the appeal should have failed because the other mortgagors were not brought on the record either as co-appellants or as respondents and lastly an objection has been taken to the order for taking accounts on the ground that the person who was the appellant before the Subordinate Judge was not entitled to the whole of the usufruct derived from the property.

3. The first objection is supported by the case of Nawab Azimat Ali Khan v. Jowahir Singh [1869] 132 M.I.A. 404. That decision does not help the appellants. In that case the mortgagee had acquired a fractional interest in the equity of redemption and what their Lordships of the Privy Council held was that the mortgagee could not be compelled to permit redemption of the portion acquired by him. A case decided in this Court, namely, Grish Chander Dey v. Juramoni De [1901] 5 C.W.N. 83 has also been cited. In that case the ruling in Nawab Azimat Ali Khan's case (1869) 13 M.I.A. 404, was construed as prohibiting a joint mortgagor from claiming to redeem an entire mortgage. That ruling, however, has been dissented from in two subsequent rulings of this Court, namely, Baikantha Nath Dey v. Mohesh Chandra Dey [1918] 22 C.W.N. 128 and Protap Chandra Dhar v. Peary Mohun Dhar [1918] 22 C.W.N. 800, where it is pointed out that in Azimat Ali Khan's case (1869) 13 M.I.A. 404, the mortgagee had acquired an interest in the equity of redemption and it was only in respect of that interest that the mortgagors prayer for redemption would be refused. In a subsequent Privy Council decision Norender Narain Singh v. Dwarka Lal Munder [1877] 3 Cal. 395, it has also been ruled that a person who has a fractional interest in the equity of redemption is entitled to redeem the whole mortgage. So the first objection fails.

4. The second objection is based on the ruling in Ragho Salvi v. Balkrishna Sakaram [1885] 9 Bom. 128. In that case the mortgagee had permitted the mortgagors to redeem the mortgage according to their respective interest in the equity of redemption, and, after several such partial redemptions, one of the mortgagors claimed to redeem the remaining portion of the mortgage. In those circumstances it was ruled that, if that mortgagor wished to redeem the whole of the remaining portion of the mortgage, it was necessary for him to bring all the persons interested in that portion on the record or otherwise he only be entitled to redeem his particular interest. That case, therefore, does not assist the appellants. I fail to see why the appellant should raise this objection about nonjoinder of the other mortgagors in the appeal before the Subordinate Judge? His interest presumably is to recover the money lent by him, and, as long as he recovers that, it is immaterial to him what happens to the property. If the other mortgagors have any grievance against the person who has obtained the decree for redemption it would be for them to seek their proper remedy.

5. The third objection, however, is a good one. The respondent before this Court is only entitled to a fractional share of the mortgaged property and, therefore, he would only be entitled to a fraction of the usufruct. Accordingly when a decree is made, for the amount which will be payable to him on account of the usufruct enjoyed by the plaintiffs subsequent to the date of the tender, he should be given credit only for so much of the usufruct as fell to his share.

6. The appeal is allowed to this extent, the decree of the Subordinate Judge will be modified in the manner above mentioned and it is affirmed as regards the rest. Parties should have their costs in all Courts in proportion to their success.


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