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Regular Second Appeal No. 73 of 1951, decided on 16th May, 1952 from the decree of A. Lazarus, District Judge, Gujranwala, dated the 22nd day of November, 1950. affirming that of Khan Salah‑ud‑Din Hanif, Senior Civil Judge, Gujran wala, dated the 31st January, 1949, dismissing the plaintiff's suit.
Ss. 60, 61‑Plaintiff ‑mortgagors must sue to redeem the entire mortgage and not their own share only‑One of the mortgagors alone subsequently mortgaging property to mortgagee‑Plaintiffs‑mortgagors not bound to redeem such subsequent mortgage along with the first.
If the plaintiffs wish to redeem 'the first two mortgages they must redeem them entirely and cannot ask for their own share only. They must pay the entire mortgage‑money and if that is so, they must obtain the entire property under mortgage.
Even if the plaintiffs or their father had been a party to the third and the fourth mortgages, they were not bound to redeem these mortgages and they could redeem only the first two mortgages separately unless there had been a clear "contract to the contrary."
B. Z. Kaikaus, for Appellants.
Malak Muhammad Amin, for Respondents.
The following brief pedigree‑table will be useful for understanding the facts of this case :‑
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Sardar‑Mst. Jiwan Nawab Defendant No. 15. ____________
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Muhammad Hussain Lal Plaintiff No. 2. Plaintiff No. 2.
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The suit was for the redemption of a mortgage and as it has failed in the two Courts below the plaintiffs have come up in second appeal.
They stated in the plaint that on the 1st of June 1906 their father Nawab and their uncle Sardar executed a mortgage for Rs. 600 in respect of the land in suit, in favour of four persons who are predecessors‑in‑interest of defendants Nos. 1 to 15. One of these four persons was Mahand and another was his brother Mehr Dad. Mehr Dad having died his interests were represented by Mahand. Thus Mahand became a mortgagee in respect of half of the land in suit.
It was further stated in the plaint that on the 21st Febru ary 1927 a second mortgage relating to the same property was executed by Nawab and Sardar in favour of Mahand alone for Rs. 1,000. This mortgage, it was alleged, was valid only to the extent of Rs. 300, the rest of the amount being fictitious.
Finally, there was a prayer for a decree for possession of 45 kanals and 10 marlas of land by redemption. The amount for which it was redeemable was not stated.
In the written statement filed by defendants No. 1 to 14 the mortgage of 1906 was admitted while the mortgage of 1927 was claimed to be valid for the entire amount of Rs. 1,000. It was alleged, however, that there were two further mortgages as follows:‑
1. On the 13th of March 1930, Sardar alone had mortgaged 73 kanals one marla out of 271 kanals and 11 marlas including his own half share in the land in suit in favour of Mahand for Rs. 2,600.
2. On the 22nd of June, 1946, Mst. Jiwan, defendant No. 15, widow of Sardar, had mortgaged 84 kanals and 7 marlas including her husband's share in the land in suit in favour of Inayat, Hidayat and Faiz Ahmad defendants for Rs. 9,000.
It should be stated here that the entire land, including the land in suit and the land covered by the two subsequent mortgages, was held in joint ownership by Nawab and Sardar. It should also be stated, though this is not relevant to the present issue, that the mortgage of 1946 was challenged by the plaintiffs in a declaratory suit and that they obtained a decree to the effect that it was binding on them only to the extent of Rs. 5,410.
So far as the dispute is relevant to the present appeal, the defendants' contention ‑was that the first mortgage of 1906 had merged into the three subsequent mortgages and that, conse quently, if the plaintiffs wished to redeem any of them, they should redeem all of them. The two lower‑ Courts having agreed on this point have dismissed the suit.
The plaintiffs' case is that they are bound only by the first two mortgages and not by the third and fourth, which were executed by Sardar alone. The defendants' counsel argued that by the statement in the plaint the plaintiffs intended redeeming only the first mortgage and not even the second. But this contention is without force, because the mortgage of 1927 was also referred to in the plaint, only with a qualification that it was valid to the extent of Rs. 300. It should, therefore, be assumed that the plaintiffs intended redeeming the first two mortgages and the question is whether they can do so.
Under section 60 of the Transfer of Property Act, at any time after the principal money has become due, the mortgagor has a right, on payment of the mortgage‑money to require the mortgagee, where he is in possession of the mortgaged property, to deliver possession thereof to the mortgagor. The following proviso, however, is important:‑
Nothing in this section shall entitle a person interested in a share only of the mortgaged property to redeem his own share only, on payment of a proportionate part of the amount remaining due on the mortgage, except only where a mortga gee, or, if there are more mortgagees than one, all such mortgagees, has or have acquired, in whole or in part, the share of a mortgagor."
This means that if the plaintiffs wish to redeem the firs two mortgages they must redeem them entirely and cannot ask for their own share only. They must pay the entire mortgage money and if that is so. they must obtain the entire property under mortgage. It would be ridiculous to argue that although they are under an obligation to pay the entire mortgage money they should receive only half of the property under mortgage. This position is not denied, but it is argued that because one of the mortgagors has executed a subsequent mortgage in res pect of the same property, the mortgagee is entitled to retain possession of the share of this particular mortgagor under the subsequent mortgage. Mr. Kaikaus, who appeared for the plaintiffs, argued that since the contract between the parties to the first and second mortgages was governed by section 60, which made it obligatory on any one of the mortgagors to redeem the entire mortgage, no subsequent contract by one of the mortgagors with one or more of the mortgagees to which the other mortgagors were not parties, could effect the rights of such mortgagors under the first contract. Now although Mr. Kaikaus did not rely on any particular provision of the law for this argument, I think the principle is stated in or may be deduced from section 61. By this section, "a mortgagor who has executed two or more mortgages in favour of the same mortgagee shall, in the absence of a contract to the contrary, when the principal money of any two or more of the mortgages has become due, be entitled to redeem any one such mortgage separately, or any two or more of such mortgages together". This means that even if the plaintiffs or their father had been a party to the third and the fourth mortgages, they were not bound to redeem these mortgages and they could redeem on the first two mortgages separately unless there had been a clear contract to the contrary. Now since under section 60 the mortgagor has .a right on payment or tender of the mortgage money to require the mortgagee to deliver possession, it follows that on redeeming the first two mortgages the plaintiffs are entitled to the possession of the entire property covered by these mortgages.
The appeal is, therefore, accepted with costs throughout. The case will go back to the first Court for the ascertainment of the amount on payment of which the first two mortgages will be redeemable.
A. H. Case remanded.
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