Guha Ray, J.
1. This second appeal by the defendants arises from a suit by respondent 1 Hajia Khatun Bibi for a declaration of her title to the land in suit to the extent of 8 annas share and for joint possession thereof along with defendants 1, 2 and 3.
2. The facts as far as they are admitted or beyond dispute are briefly that the disputed land belonged originally to Abdur Rahaman, father of the plaintiff Hajia Khatun. Abdul Kasem was a brother-in-law of Abdur Rahaman. On 13-6-1933 Abdul Kasem and Abdur Rahaman executed an Instalment mortgage bond, of which a certified copy is Ex. 2, in favour of Surendra Nath Mandal, defendant 2. Abdur Rahaman died on 19-3-1936, corresponding to the 5th Chaitra, 1342 B.S., leaving a widow and two minor daughters, viz., the plaintiff and pro forma defendant 3 Rajia Khatun. Abdul Kasem died in 1343 B.S. It is the plaintiff's case that after Abdul Kasem's death when defendant 2 pressed the plaintiff's mother for payment of his dues on the mortgage there was an adjustment in the presence of the villagers to the effect that defendant 2 would be placed in possession of the land mentioned in schedules Ka and Kha and he would be in possession from 1343 to 1349 B.S. and the entire mortgage debt would be satisfied out of the usufruct of the land for this period. Defendant 2 was accordingly placed in possession, and he has been in possession for that period and the mortgage debt has been satisfied out of the usufruct. It is further the plaintiff's case that when she asked defendant 2 to return her share of the disputed land in Baisakh, 1350 B.S. he did not agree and the husband of the plaintiff had, therefpre, to go to the Debt Settlement Board. During the pendency of the case- before the Debt Settlement Board defendant 2 had filed an objection that Rahaman had sold the land to him during his life time. Ultimately, the case before the Debt Settlement Board came to nothing and the parties were referred to the civil Court. The suit was contested by defendants 1 and 2, defendant 1 being the son of defendant 2. They deny the plaintiff's allegation regarding the adjustment of the mortgage debt by putting defendant 2 in possession of the disputed land and it is their case that Rahaman himself sold the disputed land to defendant 2 for a consideration of Rs. 660/- and put him in possession in 1340 B.S. and defendant 2 has acquired a right to the disputed land by adverse possession but no kobala. was executed as Rahaman's fund did not permit it and as Rahaman suddenly died. It is further their defence that the other daughter of Rahaman, viz., Rajia acknowledged this fact by executing a kobala In Palgoon, 1349 B.S. The learned trial Court, held that the defence story of Rahaman having sold the disputed land to defendant 2 could not be proved and that the recital in Rajia Khatun's kobala in favour of defendant 2 to the effect that her father had sold the land to defendant 2 does not bind the plaintiff at all, particularly when in the kobala the plaintiff was mentioned as a co-sharer. As regards the plaintiff's case also the learned trial Court holds that the plaintiff could not by satisfactory evidence prove her case regarding the alleged adjustment of the mortgage debt. But from the facts that Rahaman's possession up to the date of his death, i.e., till Chaitra, 1343 B.S., was admitted by the defendants' witnesses and that as late as Palgoon, 1349 B.S. notice was served upon the plaintiff as a co-sharer there can be no question as to Rahaman's title to the land so that the plaintiff was entitled to succeed to 8 annas share as one of the two daughters of Rahaman unless the defendants could establish a better title or show that the plaintiff's title had been extinguished, and the defendants having failed in both the plaintiff's suit was decreed in part to this extent that her title to 8 annas share of the suit land was declared and she was given joint possession to the extent of her 8 annas share with defendants 1 and 2. On appeal by defendants 1 and 2 the appellate Court holds, in the first place, that defendants 1 and 2 completely failed to prove that Abdur Rahaman transferred the disputed land to him during his life time and he believed the plaintiff's witnesses as regards the plaintiff's story of adjustment of the mortgage debt. Before him there was a plea of limitation and it was held by him that the suit was not barred by limitation. On these findings the judgment and the decree of the trial Court were confirmed.
3. On behalf of the appellants it is argued in the first place that the suit was in reality a suit for redemption and as such it was bad because the plaintiS in effect asked for a partial redemption of the mortgage. It is next argued that the suit is bad for defect of parties because the heirs of Abdul Kasem have not been made parties to the suit. It is further argued that Section 92, Indian Evidence Act is a bar to the admission of oral evidence to prove the alleged adjustment of the mortgage. It was further contended on behalf of the appellants that the plaintiffs could not succeed without a suit for partition.
4. I shall deal with the last point first. In support of this contention reliance is placed on behalf of the appellants on the Privy Council case of Robert Watson & Co. v. Ram Chand Dutt, 17 Ind App 110 (A). This was a suit in which Robert Watson & Co. holding 14 annas share of the land in question had actually cultivated the same. But the plaintiffs wanted to sow oil seeds and to prevent the Watson defendants from continuing the cultivation in which they were engaged. The watson defendants persisted in cul-tivation which they had commenced. Quarrels and even riots ensued and the plaintiffs commenced the suit in which they prayed to be put into ejmali possession of their 14 annas share and to have damages, etc. In that connection their Lordships observed as follows:
'If there be two or more tenants in common, and one (A) be in actual occupation of part of the estate, and is engaged in cultivating that part in a proper course of cultivation as if it were his separate property, and another tenant in common (B) attempts to come upon the said part for the purpose of carrying on operations there inconsistent with the course of cultivation in which A is engaged and the profitable use by him of the said part, and A resists and prevents such entry, not in denial of B's title, but simply with the object of protecting himself in the profitable enjoy-ment of the land, such conduct on the part of A would not entitle B to a decree for joint possession.'
Their Lordships further observed that in a case like this injunction also was not the proper remedy. The facts of that case are quite distinct from the facts of the present one because there one of the co-tenants was in occupation of a specific parcel of land by cultivating it in one way and the other co-sharers wanted to interfere with that and also asked for an injunction to restrain him from cultivating that land but here the defendants are actually repudiating the plaintiff's title who seeks joint possession with them to the extent of her 8 annas share. It is one of the incidents of joint ownership that the parties should be put in joint possession to the extent of their specific shares and the reason why their Lordships of the Privy Council rejected the claims for joint possession in that case is that the plaintiffs wanted to interfere with the way in which the defendant company was cultivating it and their Lordships said that that was not permissible.
5. One of the other points raised on behalf of the appellants is that the oral agreement under which defendant 2 was put into possession and the entire mortgage debt was to be satisfied out of the usufruct of the property for 7 years is not admissible in evidence as it is hit by the provisions of Section 92, Indian Evidence Act. Section 92, Indian Evidence Act prohibits the admission of an oral agreement or statement as between the parties to a contract or their representatives in interest for the purpose of contradicting, varying, adding to, or subtracting from, its terms and the section has as many as 6 provisos of which only proviso 2 is important for our purpose. Proviso 2 runs as follows:
'The existence of any separate oral agree-ment as to any matter on which a document is silent, and which is not inconsistent with its terms may be proved.'
6. The question is whether the oral agreement alleged and proved on behalf of the plaintiff in this case is an agreement contradicting, varying, adding to or subtracting from the terms of the original mortgage. This subsequent oral agreement instead of contradicting, varying, adding to or subtracting from the terms of the original mortgage merely seeks to lay down the means by which the original contract was to be implemented or the means of satisfaction of the mortgage debt. To that extent it not merely does not contradict, vary, add to or subtract from the original mortgage but it really seeks to fulfil the terms of the mortgage. To that extent therefore it is not hit by the provisions of Section 92 and is fully covered by proviso 2. The subsequent oral agreement does not really convert the original mortgage which was a simple mortgage into a usufructuary mortgage but in the circumstances in which the plaintiff's mother found herself on the death of her husband Abdur Rahaman the only way in which she could satisfy the mortgage was to put the mortgagee in possession so that the mortgage debt could be satisfied out of the usufruct for 7 years. In support of this view may be cited the cases of Kamala Sahai v. Babu Nan-dan Mian and another, 11 Cal LJ 39 (B) and Afsar Shaik v. Saurava Sundari Dasi, 25 Cal LJ 560 : (AIR 1917 Cal 217) (C). In the first of these two cases, after the execution of a mortgage deed the parties thereto arranged that the mortgagee would be placed in possession and authorised to receive the profits in satisfaction of nis dues under the mortgage. In the second case the plaintiff alleged in her plaint that she took possession of the mortgaged property, with the consent of the mort-gagor, when the latter failed to pay the mortgage money on the due date under a conditional mortgage-deed. In the first case it was held that' the agreement between the parties by which the mortgagee was placed in possession and authorised to receive the profits in satisfaction of his dues under the mortgage was not an agreement contradicting, varying, adding to or subtracting from the terms of the original contract but merely providing means for the satisfaction of the bond and could be proved by oral evidence and Section 92, Evidence Act did not apply to it. In the second case also it was held that the subsequent oral agreement did not alter the nature of the contract between the parties and transform the conditional mortgage into a usufructuary mortgage, the parties having adopted a mode of satisfaction of the mortgage and consequently no question arose as to the effect of Section 92, Evidence Act.
7. The other two points, viz., that the suit is bad for defect of parties and that it is bad being in substance a suit for a partial redemption of the mortgage are bound up with the question whether the mortgage is really one mortgage or two separate mortgages embodied in one document. This depends entirely on the question whether on a fair reading of the document it means the one thing or the other. The document starts by describing itself as instalment mortgage for Rs. 660/- in respect of 2 plots of land bearing an annual rental or Rs. 3/8/4 gds. of Sitalpur and 2 other plots of land bearing an annual rental or Rs. 5/8/4 gds. The mortgagee is Surendra Nath Mandal and the mortgagors are Abdur Raha-man and Abdul Kasem. The recitals in the mortgage deed make it quite clear that there was no independent consideration for the mortgage deed itself but the mortgagors had taken loans from the mortgagee on previous occasions and the loans on up-to-date accounts amounted to Rs. 320/- for Abdur Rahaman and Rs. 340/- for Abdul Kasem, the total being Rs. 660/-. The mortgage deed next goes on to say that as the mortgagors were not in a position to pay the entire amount in one instalment in cash they asked for instalments and the mortgagee granted their prayers and by way of security for the payment of the instalments they were executing an instalment mortgage deed in favour of the mortgagee and were stipulating that they would pay the mortgagee's dues according to the instalments mentioned at the end of the bond and if they failed to pay up any of the instalments in time all the instalments would be deemed to have been left unpaid and interest Will run at the rate of one per cent, per month on the total dues of the mortgagee who would be entitled to realise the entire unpaid balance together with interest by selling the mortgaged property and if the mortgaged property was not sufficient for the discharge of the mortgagee's dues the mortgagee would be entitled to proceed against the other properties, moveable and immovable, of the mortgagors and to that the mortgagors or their successors-in-interest would not be entitled to object. Then follows a description of the 4 plots. Finally, it is stated that Abdur Rahaman, mortgagor, mortgaged items 1 and 2 and Abdul Kasem mortgagor, mortgaged items 3 and 4. Then follow 7 instalments which are as follows: Rs. 90/-payable in Chaitra, 1340 B.S. and six annual instalments of Rs. 95/- each payable in Chaitra, 1341, 1342, 1343, 1344, 1345 and 1346 B.S.
8. It is contended on behalf of the appellants that the mere fact that the total mortgage dues are mentioned as the total of the debts of Abdur Rahaman and Abdul Kasme and that the instalments do not specify how much is actually payable by each of the two mortgagors and that there is a stipulation in the bond that the total debt is to be recovered from the properties mortgaged or 3f they are insufficient for the satisfaction of the debt by following other properties, moveable and immoveable, of the two mortgagors goes to indicate that the mortgage was one ana indivisible and that both Abdur Rahaman and Abdul Kasem were making themselves liable for each other's dues. As against this, the debt of Abdur Rahaman is separatey specified at Rs. 320/-and the date of Abdul Kasem at Rs. 340/- and it is also specifically provided that the first two plots were being mortgaged by Abdur Rahaman and the last two plots were being mortgaged by Abdul Kasem. It is admitted fact that Abdur Rahaman is the owner of the first two plots and Abdul Kasem of the last two plots. They were not therefore the joint owners of the 4 plots and were not jointly mortgaging all the 4 plots. Of course, there is no bar to Abdur Rahaman making himself responsible for Abdul Kasem's debt and agreeing to pay a part of Abdul Kasem's debt if the properties mortgaged by Abdul Kasem were not sufficient for the discharge of his debts. But the question is whether on a proper construction of the document it can be held as a fact that Abdur Rahaman really did undertake to bear a part of Abdul Kasem's debt, I have already said that no independent consideration passed for the document and that the whole consideration for the mortgage consisted of the mortgagee's dues on past loan transactions. There is nothing to indicate that these laon transactions were joint. On the other hand, the mere fact that the debt of each of the two mortgagors is separately mentioned goes to show that these loans in the past were not advanced jointly to Abdur Rahaman and Abdul Kasem. There is also nothing specifically mentioned in the bond itself to show that Abdur Rahaman was undertaking the responsibility for any part of Abdul Kasem's debt and vice versa except of course the general statement that the debt secured by the mortgage would be recovered from the mortgaged properties and if the mortgaged properties were not sufficient for the discharge of that debt by following the other properties of Abdur Rahaman and Abdul Kasem. This general statement can be construed in two ways, viz., that each was undertaking responsibility for his own debt and for nothing more. It is also consistent with the construction that each was undertaking responsibility for the others' debt in addition to his own. But the facts that the debt of each was separately mentioned and each Was categorically stating what he was mortgaging are in favour of the theory that actually each one was undertaking no more than the responsibility for his own debt. The fact that the instalments did not specifically say which of them or what part of each of them would be payable by either of the mortgagors may similarly be explained on the assumption that each of the mortgagors was undertaking the responsibility for the other's debt in addition to his own and also on the assumption that each was undertaking nothing more that the responsibility for his own debt. As the instalments stand any one of the two mortgagors might have paid any of these instalments. The difference between the debt payable by Abdur Rahaman and that payable by Abdul Kasem is only Rs. 20/- and if for the payment of the first instalment Abdur Rahaman paid Rs. 35/- and Abdul Kasem paid only Rs. 55/- and out of the remaining 6 instalments Abdur Rahaman paid only three and Abdul Kasem the other three the amount would be fully cleared. Of course, this is not specifically mentioned in the bond itself but that does not mean that the mortgagors were not entitled to pay the dues according to their shares in any way they liked so long as the instalments were duly paid. Having regard to all the provisions of the mortgage I am inclined to think that it is really two mortgages embodied in one document and Abdur Rahaman mortgaged two plots for a consideration of Rs. 320/- only whereas Abdul Kasem mortgaged the other two plots for a consideration of Rs. 340/-. If I am correct in this view the questions whether the suit is bad for absence of Abul Kasem's heirs and whether the suit was one for partial redemption of the mortgage hardly arise, because though the mortgage executed by Abdul Kasem for a consideration of Rs. 340/~ is embodied in the same document as the mortgage by Abdur Rahaman for a consideration of Rs. 320/- Abdur Rahaman mortgaged two plots and Abdul Kasem also mortgaged two plots and the debt of each is really separate. If therefore the heirs of Abul Kasem are left out there Is no defect of parties because the motgage of Abul Kasem is quite distinct from that of Abdur Rahaman. Similarly there can be no question of partial redemption of the mortgage by leaving out the mortgage of Abdul Kasem which, as already stated, is quite distinct from the mortgage by Abdur Rahaman. That would dispose of both the points raised on behalf of the appellants.
9. Even if, however, I am not correct in the construction I have put on the mortgage the question has to be considered whether the suit should be dismissed for defect of parties or whether Order 1, Rule 9, Civil P. C., entitles the Court to do justice as between the parties on the record in spite of the provisions of Order 34, Rule 1. It was argued on behalf of the appellants that Order 34, Rule 1 requires that all persons having an interest in the mortgage security or in the right of redemption shall be joined as parties to any suit relating to the mortgage. If the mortgage executed by Abdur Rahaman and Abul Kasem be one then of course Abul Kasem's heirs would have an interest in the mortgage security and also in the I right of redemption but then this Rule begins with the words 'Subject to the provisions of this Code' and one of the provision of the Code is contained in Order 1, Rule 9 which provides that 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. It is therefore obvious from the terms of Order 34, Rule 1 itself that the provision of this Rule is subject to the rest of the provisions of the Code, one of which' is Order 1, Rule 9. On behalf of the appellants the case of -- 'Govinda Chandra Ghose v. Jamaluddin Mondal : AIR1933Cal621 , was relied on for the proposition that Order 34, Rule 1, Civil P. C., controls Order 1, Rule 9 and not vice versa. This decision is based on a decision of the Patna High Court in the case of -- 'Girwar Narain Mohton v. Mt. Makbulunnessa', 1 Pat LJ 468: (AIR 1916 Pat 310) (E), which lays down that Rule 9 of Order 1, Civil P. O. 1908, is subordinate to Rule 1 of Order 34, that a mortgage is indivisible and if all the parties entitled to a share in the money due on the mortgage are not upon the record the suit must be dismissed in its entirety and that when a necessary party has not been impleaded at the time of the institution of the suit but has been brought on the record after the period of limitation has expired, the whole suit must be dismissed. Neither this decision nor the Patna decision on which it' is based seems to notice the opening words of Order 34, Rule 1, viz., 'Subject to the provisions of this Code'; nor does any of these decisions try to explain what is the precise meaning of this opening phrase of Rule 1 of Order 34. As against this view have been cited on the other side the cases of -- 'Sital Prasad Ray v. Asho Singh', 2 Pat 175: (AIR 1922 Pat 651) (F); -- 'Mt. Waleyatunnissa v. Mt. Chalakhi', AIR 1931 Pat 164 (G); -- 'Kherodamoyi Dasi v. Habib Shaha : AIR1925Cal152 ; and -- 'Haidar Ali Khondkar v. Mohammad Shajiuddin Kazi', AIR 1932 Cai 34 (I). In the first case, the earlier case viz., 1 Pat LJ 468 : (AIR 1916 Pat 310) (E), was fully considered and dissented from. This case notices the opening phrase of Order 34, Rule 1 and tries to explain it. In the second case it was held that although as a general rule all persons having the equity of redemption ought to be brought on the record, the failure to bring any one of them on the record does not in every case necessitate the dismissal of the suit, the combined effect of Order 1, Rule 9 and Order 34, Rule 1 in so far as mortgagees are concerned being that all persons whose rights and interests may be adjudicated upon and determined in the suit ought to be added as parties but the failure to add . one or more of such persons should not have the effect of defeating the suit, if the Court in their ab-sense can deal with the matters in controversy so far as regards the interests and rights of the parties actually before it. In the third case, it has been held that a mortgage suit in which all the persons interested in the equity of redemption have not been joined need not necessarily fail, the provisions of Order 1, Rule 9, being just as applicable to a mortgage suit as to any other suit. In the fourth case which is the decision of a single Judge of this Court it has been held that non-compliance with the provisions of Order 34, Rule 1 is not necessarily fatal to a suit to enforce a mortgage and Order 1, Rule 9 applies to a mortgage suit as well as to any other suit. In view of this diversity of judicial opinion I prefer to follow the view which seems to me to be in consonance with the words used in the rule itself. In other words, wherever it is possible to do justice between the parties actually before the Court it may be done in spite of the fact that some necessary parties have been left out, Where however it is not possible, the whole suit has got to be dismissed. In this case in view of the clear terms in the mortgage it is certainly possible to give relief to the plaintiff in the absence of the heirs of Abdul Kasem.
10. It was also pointed out on behalf of the contseting respondent that in the written statement no specific defence was taken on this point, although it was stated in a part of the written statement that the suit was bad for defect of parties without stating which of the parties were left out. No issue was also framed on this point and in the course of the evidence all that transpired is that Abul Kasem left as his heirs a widow and a sister. It further transpired in evidence that this widow and this sister transferred, their interest by a kobala Ex. 4 dated 9-3-1943 to Rezia Khatun defendant 3. On behalf of the contesting respondent it has been contended that Rezia Khatun accordingly represents the interest of Abdul Kasem or was the successor-in-in-terest of Abul Kasem. It is contended on the other hand that she does not fully represent Abul Kasem's interest as she did not purchase all the interests of Abul Kasem and the mortgage clearly stipulated that if the debts were not satisfied out of the properties, the other properties, moveable and immovable of the mortgagors would be followed. It is certainly true that there is such a stipulation in the mortgage so that Rezia Khatun does not represent completely the interest of Abul Kasem but she is the successor-in-interest of Abul Kasem so far as the mortgaged property is concerned. Partly for that reason and partly also because the written statement did not specifically raise this point and merely rested content with the statement that the suit was bad for defect of parties without giving any reason as to why it was bad for defect of parties, the defect, if any, on this ground should not be allowed to defeat the whole suit.
11. Then as regards the question whether the suit is bad because it substantially amounts to a suit for partial redemption of the mortgage it may be first pointed out that it is not in reality a suit for a partial redemption of the mortgage. In a suit for redemption of a mortgage the mortgage must subsist but the allegation of the plaintiff in this case is that the mortgage has been completely satisfied out of the usufruct of the land which was in the possession of the appellants since Chaitra 1342 B. S. That the mortgagee has been in possession since that time is not in dispute and the explanation of the mortgagee that he was in possession because Abdur Rahaman had sold the land to him without exe-cuting a sale deed Being not acceptable, the con-clusion arrived at by the learned lower appellate Court that the mortgagee must have been put in possession under an arrangement such as has been testified to on behalf of the plaintiff respondent cannot be assailed and if that conclusion remains there was really no subsisting mortgage and no question of its redemption could arise. A second answer to this contention is that it is open to the parties by special arrangement to split up a mortgage and in support of this contention reliance was placed on behalf of the contesting respondent on the cases of -- 'Huthasanan Nambu-dri v. Parameswaran Nambudri', 22 Mad 209 (J); --'Ghulam Sarwar Khan v. Abdul Wahab Khan', 54 Cal WN 386: (AIR 1949 PC 330) (K), which is a Privy Council case and -- 'Hari Kissen Bhagat v. Seikh Valiat Hossein', 7 Cal WN 723 (L). The Madras case is the earliest case on the point and the last case is the second in point of time. It was held in that case that the mortgage should be treated as having been split up and the release of one of the properties by the mortgagee Should be held to have the same effect as if the mortgagee had himself bought it and the mortgage debt apportioned between that property and the other mortgaged property, and it was held in the Madras case that a mortgage for an entire sum is for its very purpose indivisible; and that character of indivisibility exists with reference not only to the mortgagee but also to the mortgagor and save by special arrangement between all the parties interested, neither mortgagor nor mortgagee, nor persons acquiring a partial interest through either can obtain relief under the mortgage except in consonance with that principle of indivisibility. In this case the mortgagors of 4 items of property originally mortgaged for an entire sum sold the equity of redemption of one item to the plaintiff who then sued the mortgagee to redeem all four items and it was held that he was not entitled to do so. In the Privy Council case it was held that a mortgagee cannot part with his mortgage rights in respect of the whole of the mortgage-debt and yet retain any part of his rights in respect of some part of the mortgaged, land and the position is the same whether the mortgagee sells himself or as in the present case, his rights are sold by paramount authority and this is in accordance with the general principle that except by agreement between mortgagee and mortgagor a mortgage security is indivisible. In this case as the agreement on which the plaintiff-respondent based her case had been proved according to the finding of the lower Appellate Court it has got to be held that the mortgagee allowed the mortgage security to be split up by entering into this arrangement and by allowing himself to be put in possession of the property mortgaged by Abdur Rahaman. Consequently, when the plaintiff as Abdur Rahaman's heir sued for recovery of the mortgaged land on the allegation that the entire mortgage-debt has been satisfied from the usufruct of the land even if that suit amounted to a suit for redemption it would not be bad for partial redemption because Abdur Rahaman had already allowed the mortgage security to be split up.
12. The appeal must accordingly fall and it is dismissed with costs.
13. Leave to appeal under Clause 15, LettersPatent is asked for and is refused.