1. In this case the plaintiffs and defendants are the owners in shares of a certain village.
2. In 1840 the owners of the village mortgaged it to the first defendant’s ancestor for Rs. 75-4-0. The plaintiffs sued to redeem the mortgage. The first defendant claimed to own the largest share of the village and objected to plaintiff’s right to redeem the mortgage without the consent of the co-mortgagors. He specially objected to the plaintiff’s right to redeem his (first defendant’s) share of the mortgage. The District Munsif found that it could not be satisfactorily decided in the present suit to what share the first defendant was entitled, and on the strength of Naro Hari Bhave v. Vithalbhat I.L.R. 10 Bom. 648 decided that plaintiff’s had a right to redeem the mortgage. He, therefore, decreed that, on payment of the mortgage money into Court, the first defendant should put the plaintiffs into possession of the mortgaged property with its title-deeds. In appeal before the District Court it was argued that, under Clause 4 of Section 60 of the Transfer of Property Act, the plaintiffs were entitled to redeem their own shares only, but not to redeem the whole property. The District Judge, however, held the argument to be invalid, ” as the first defendant had not acquired the share of a mortgagor,” and dismissed the appeal.
3. Against this decree the first defendant now. urges this second appeal, and we think his plea is well founded. The decree is manifestly wrong and unjust since it requires the first defendant, who is not only the mortgagee, but also one of the chief owners of the property, to give up his possession of the property, including his own share, to the plaintiffs on payment of the mortgage money. No provision is made for securing to the first defendant or the other sharers of the village possession of their shares on their paying the plaintiffs their shares of the mortgage money, nor could any such provision be made in the present suit, since their respective shares have not been ascertained and could not be conveniently ascertained in the suit. Thus the result of the decree would be to compel the first defendant and other co-owners and co-mortgagors to bring suits for the ascertainment of their shares and for the recovery of the same from the plaintiff’s on payment of their contribution towards the mortgage money. This is the very evil which was pointed out and guarded against by the learned Judges who decided the case of Mamu v. Kuttu I.L.R. 6 Mad. 61. There the fifth defendant was the purchaser of a share of the equity of redemption and was also the mortgagee in possession, and it was held that ” to allow plaintiff to redeem the whole would enable him to get possession of the property to the exclusion of fifth defendant. Now, as fifth defendant is already in possession as assignee of the mortgagee and has also a share in the right to redeem, he cannot be required to surrender possession of the whole against his consent until plaintiff has, by a proper suit for partition, ascertained definitely to what shares in the property he and fifth defendant are, respectively, entitled.
We cannot, therefore, allow a decree for redemption of the whole. A decree for redemption of a portion is equally impossible, for that would be to convert the suit into a suit for partition, which, without the consent of all the parties, could not be permitted.
4. That case is exactly on all fours with the present case and indicates the proper course for the plaintiffs to take if they desire to redeem the mortgage on their shares of the property. It is only necessary, in conclusion, to point out that the case, Naro Hari Bhave v. Vithalbhat I.L.R. 10 Bom. 648 relied on by the District Munsif proceeded on entirely different grounds. In that case the plaintiffs had a clear right to redeem the whole property at the time when they brought their suit, and the Court refused to allow that right to he defeated by the action of the defendants in purchasing a share in the equity of redemption post litem motam, but intimated that, if the defendants had acquired the share before suit, it would have been necessary to consider whether the ruling in Mamu v. Kuttu I.L.R. 6 Mad. 61 should not have been followed. The District Judge also in the present case appears to have been under some misapprehension. He apparently thought that it was necessary for the first defendant to show that he had acquired the share of a mortgagor subsequent to the date of the mortgage. But that is not so. It is the possession of the two fold interest as mortgagee and mortgagor (prior to the plaintiffs’ suit) that is of importance. First defendant had such two-fold interest from the date of the mortgage, and the rule laid down by this Court in the case already quoted is clearly applicable.
5. We must, therefore, reverse the decrees of the Courts below and dismiss the plaintiffs’ suit with costs throughout.