1. This appeal arises out of a suit on a mortgage-bond. Ram Nara Singha, the father of defendants Nos. 1 and 2, and Ramdhan, the husband of defendant No. 3, jointly executed a mortgage-bond in favour of Baikuntha Sarvagya, the predecessor of the plaintiffs, for a lean of Rs. 500. By this bond the two mortgagors hypothecated the properties set out in the schedule to the plaint, of which each owned an eight anna share. The bond was executed on the 4th Bhadro 1304 B. Section and stipulated for interest at the rate of 13 annas 4 pies per cent, per mensem compound interest with yearly rests. The plaintiff alleged that Rs. 146 was realised by him on different dates and that on an account being made up on the 22nd Bhadro 1317 B. Section the sum of Rs. 1,138 was found due by the defendants. The defendant No. 3 admitted liability on her husband's account, for half this amount. The plaintiffs gave her a remission of some of the amount due and released her from liability under the mortgage-bond in suit on her executing a fresh mortgage-bond for Rs. 450 hypothecating her 8 anna-share in the property mentioned in the schedule to the plaint. The plaintiffs now sue to recover Rs. 659 with interest from defendants Nos. 1 and 2. They have joined defendant No. 3 as a party to the suit and also claimed in the alternative a decree against the 16 annas of the property under mortgage, including in the claim the amount of Rs. 450 admitted by defendant No. 3 to be due from her.
2. Both the lower Courts have dismissed the suit, holding that it is not maintainable in its present form on the ground that the' mortgage contract is indivisible.
3. The suit has been contested by defendants Nos. 1 and 2 who are minors represented by their guardian and mother, Lakshmi Priya Dutt. Before the first Court an attempt was made to prove that she was present at the making up of accounts but this was found not to have been proved. Before the lower Appellate Court this finding does not appear to have been questioned. There it was contended that the mortgagee had the right to split up the contract as the case fell within the exception to Section 60 of the Transfer of Property Act. I think the lower Appellate Court was right in holding that the provisions of that exception are not applicable to the facts of the present suit. According to the plaintiff's case he has not acquired the share of defendant No. 3 as mortgagor, since before taking the fresh mortgage of her interest in the property originally mortgaged he released it from its liability under the original mortgage. Assuming that the second mortgage was an acquisition, he did riot acquire in whole or in part the share of the mortgagor.
4. But I cannot agree with the learned District Judge in rejecting the second contention raised on behalf of the plaintiffs-appellants, that the suit is maintainable, apart from the exception to Section 60 of the Transfer of Property Act, on the ground that it is open to a mortgagee to abandon part of his claim releasing one of the mortgagors and to sue to recover their proportionate share of the mortgage-money from the other mortgagors. This principle is supported by the authority of Hari Kissen Bhagat v. Veliat Hossein 7 C.W.N. 723 : 30 C. 755, a ruling that has been frequently followed by this Court in Surjiram Marwari v. Barhamdeo Persad 2 C.L.J. 202, Imam Ali v. Baij Nath Ram Sahu 33 C. 613 : 10 C.W.N. 551 : 3 C.L.J. 576; Gangadas Bhattar v. Jogendra Nath Mitter 11 C.W.N. 403 : 5 C.L.J. 315 and Basir-ud din Bisioas v. Debendro Nath Biswas 12 C.W.N. 911.The learned District Judge has distinguished this case on the ground that the mortgagees-plaintiffs have not abandoned their claim against defendant No. 3 as they have obtained a fresh bond from her, mortgaging anew her share of the property. But the mortgagees have abandoned their claim against this defendant under the mortgage-bond on which they sue, and that is all that matters. The fresh mortgage is a separate transaction and does not infringe the restriction on a mortgagee's powers, that he cannot release so as to increase the burden on the other mortgagors. In the present case there is no dispute that the two mortgagors were equally interested in the mortgage-debt and the mortgaged property, and the claim of half the debt from the defendants Nos. 1 and 2 does not increase their burden. This appears to be the only limit to a mortgagee's power of release and subject to this it is immaterial whether he releases gratuitously or otherwise. Vide Hakim Lal v. Ram Lal 6 Ind. Cas. 842 : 11 C.L.J. 639 : 15 C.W.N. 800.
5. On behalf of the respondents reliance is placed on the decision of the Allahabad High Court in the case of Chandika Singh v. Pokhar Singh 2 A. 906, the case on which the Munsif based his judgment. The facts of that case appear at first sight to closely resemble the facts of the present case. But there is one important distinction and that is that the mortgagor who had been released had not been joined as a party, as defendant No. 3 has been in the present suit. While discussing this ruling in the Full Bench decision of the same High Court Sheo Tahal Ojha v. Sheodan Rai 28 A. 174 (F.B.) : 2 A.L.J. 630 : A.W.N. (1905) 244, Banerjee, J., remarked at page 180: What is required is that the suit should be so framed that complete justice may be done, and that the owners of the equity of redemption are fully represented.' At an earlier part of his judgment the same learned Judge dissented from the general proposition that appeared to have been laid down in Chandika Singh's case 2 A. 906 that a mortgagee is not justified in exempting the share of a released mortgagor from the foreclosure proceedings and in directing his claim against the property of the other mortgagors alone. He then went on to remark: 'if one of the mortgagors makes part payment, it is a payment which goes towards the reduction of the whole debt, and when credit is given for it by the mortgagee it is immaterial whether it is treated as payment made by an individual mortgagor or as a general payment towards the mortgage. In the present suit the plaintiff-mortgagee has in his claim given credit for all sums which he alleges to have received on account of the mortgage...and I do not think that his claim offends against any principles of equity and justice.' These remarks fully apply to the facts of the present case. All persons interested are parties to the suit and it would be contrary to the principles of equity and justice to allow the contending defendants to evade payment of their just dues by the help of a technical plea This plea, however, is not, as the lower Courts have held, good in law and the suit should not have been dismissed by them. This issue of maintainability was the only issue argued before the lower Courts and there is no other reason suggested why the plaintiffs claim should not be decreed in full. I accordingly allow this appeal, set aside the decrees of both the lower Courts, and decree the plaintiffs suit with costs in all Courts. Let a mortgage-decree be prepared in terms of the prayers in the plaint, giving six months time for payment of the money.