(1.) THIS Second Appeal is by the plaintiffs, the first appellant being the wife of the second appellant. The suit was instituted to redeem 28 cents of paddy field in survey No. 598/ia of Kunnathukal Village, held under a mortgage. Ext. P-1dated 16-9-1108, executed by one Sankara Pillai Eswara Pillai in favour of the first defendant. Defendants 2 and 4 are the children of the first defendant. Though the mortgagor has purported to execute Ext. P-1as if he was the owner of the property, admittedly he had only a mortgage right therein from one Madappan who was its original owner. The plaintiffs seek to redeem the plaint schedule property on the ground that the rights of Madappan as well as those of Sankara pillai Eswara Pillai have devolved in them. The second defendant alone contested the suit. He contended that the rights of Sankara Pillai Eswara Pillai had not devolved in the plaintiffs, and that he had also no knowledge of the devolution of madappan's rights in favour of the plaintiffs. The parties did not adduce any oral evidence. The plaintiffs produced a number of documents, which were marked by consent. The trial Court held on the basis of these documents that the rights of Madappan as well as Eswara Pillai had devolved in the plaintiffs; and it passed a decree for redemption. The second defendant filed an appeal to the District Court, trivandrum. One Thankappan got impleaded in that appeal as additional second appellant, claiming himself to be the person in whom the rights of the second defendant had devolved. He seems to have advanced other contentions also before the lower appellate court, but they were rightly not considered by that court. The learned District Judge, however, held that the documents produced by the plaintiffs did not establish that Sankara Pillai Eswara Pillai's right had devolved in the plaintiffs, and that they were not, therefore, entitled to redeem. He did not however consider the question whether the rights of Madappan had devolved in the plaintiffs, and if so, whether the plaintiffs were entitled to succeed. The plaintiffs have filed this Second Appeal.
(2.) THE learned Counsel for the appellants contended before me that the documents would show that Sankara Pillai Eswara Pillai's rights have been acquired by the first plaintiff. The only document which he relied on for this purpose is Ext. P-4 D/- 3-9-1954. It is a deed of partition executed by the first plaintiff and others; and it is said item No. 7 in C schedule takes in the plaint schedule property. Ext. P-4 cannot, and does not show, that Eswara Pillai's rights have devolved in any one of the plaintiffs. It proceeds on the assumption that the first plaintiff's tarwad has got the rights of Eswara Pillai in the said property. The plaintiffs have not produced any documents to show that the rights of Eswara Pillai had devolved in them. As the evidence stands, no objection can be taken to the finding of the learned District Judge. On the question whether the rights of madappan had devolved in the plaintiffs, the learned Counsel for the appellants referred me to three documents, Exts. P-6, P-5 and P-2. Ext. P-6 is dated 6-31121; and it is a sale deed executed by one Parvathy Parappi and others in favour of one Levi Nadar. It shows that the executants were the members of Madappan's tarwad, that Madappan was their karnavan. This is also clear from the recitals of a sale deed. Ext. P-5 dated 30-9-1119, which they executed in favour of the same levi Nadar. Ext. P-5 dated 7-10-1959 is a sale deed executed by Levi Nadar in favour of one Eswara Pillai Kumara Pillai, who is said to be the first plaintiffs brother. Ext. P-2 dated 8-3-1950 is another sale deed executed by the said kumara Pillai in favour of the first plaintiff. Exts. P-6, P-5 and P-2 take in a property bearing survey No. 598/1a in Kunnathukkal Village. The plaint schedule property also bears the same survey number. The plaintiffs' learned Counsel submits that the plaint schedule property is part of the property included in the aforesaid documents as Survey No. 598/1a. There are certain indications in the documents in support of that submission. But in the absence of oral evidence, it is not possible to find that the first plaintiff has become the owner of the plaint schedule property under the said documents. Ext. P-5 also states that the property bearing Survey No. 598/1a is in the possession of the first plaintiff as per partition deed Ext. P-4 dated 3-9-1954. This statement would indicate that the rights of Sankara Pillai Eswara Pillai have also devolved in the plaintiffs. In the absence of evidence to establish the plaintiffs' right to redeem the suit mortgage, the suit should have been dismissed. But the trial Court decreed the suit, holding that the plaintiffs had established their rights. The lower appellate Court, though it reversed the decree of the trial Court, did not consider the question whether Madappan's rights had devolved in the plaintiffs, and they are entitled to redeem on that ground. This is a question on which the plaintiffs were entitled to have a decision from the lower appellate court. The decision of that Court, had, therefore, to be set aside on that ground. The manner in which the trial Court has disposed of the suit is also very unsatisfactory. I, therefore, set aside the judgments and decrees of the Courts below, and remit the case to the trial Court for disposing the suit afresh after taking evidence on the above questions, namely whether the rights of Sankara Pillai Eswara Pillai and those of madappan in the plaint schedule property have devolved in the plaintiffs.
(3.) A question was mooted before me whether the plaintiffs, if they have obtained only the rights of Madappan and not the rights of Eswara Pillai, are entitled to redeem Ext P-1. In other words, the question is whether a mortgagor or a person claiming under him can redeem a sub-mortgage; without seeking to redeem the mortgage, or even impleading the mortgagee. The matter appears to be covered by Section 91 of the Transfer of Property Act. Clause (a) of this Section provides that "any person (other than the mortgagee of the interest sought to be redeemed) who has any interest in or charge against the property mortgaged or in or upon the right to redeem the same" may redeem a mortgage. On the language of the section, there can be no doubt that a mortgagor is a person entitled to redeem a sub-mortgage. The learned Counsel for the respondents contended that the expression "property mortgaged" means the mortgage right, and not the mortgaged property, and that a mortgagor was not, therefore, entitled to redeem a sub-mortgage. It was also submitted that a mortgagor has no privity of contract with a sub mortgagee, and that such a person is not entitled to redeem the other. Reliance was placed in support of the above contention on a decision of the Bombay High court in Nagaya v. Baji Babaji Moholkar, (1896) ILR 20 Bom 549. This was a case where a mortgagor sought to redeem the mortgage, impleading the sub-mortgagee also. The mortgagee died during the pendency of the suit; and the question arose whether the suit could be continued against the sub-mortgagee without impleading the legal representatives of the mortgagee. The Court held that the suit had abated, and it was not maintainable against the sub-mortgagee, as he was not an assignee of the mortgagee. The question which arose for decision in that case was different from the one which arises in the present case and hence the above decision does not help the learned Counsel Mulla in his book on Transfer of Property Act, 5th Edition, referring to the above decision points out that the observation contained in the above decision to the effect that there is no privity between the mortgagor and the sub-mortgagee, is not correct, for there is privity of estate as both of them have rights in the same property. Privity of estate is not a term employed in Section 91, and what is required under the section to enable a person to redeem a mortgage is not privity of estate, but any interest in the mortgaged property or in the right to redeem the same. The learned Counsel for the respondents referred me to another decision of the travancore-Cochin High Court in Gouri v. Lekshmi, AIR 1953 Trav-Co. 271. That case arose out of a suit for redemption of a sub-mortgage by the mortgagee. The defendant had purchased the equity of redemption from the mortgagor and he had also got a re-lease of the sub-mortgage, in his favour. It was contended by the defendant that the suit was not maintainable as the sub-mortgage has ceased to exist, consequent on the release obtained by him. This contention was repelled by the High Court, holding that the said release operated only as an assignment of the sub-mortgage right in favour of the defendant, and that he was liable to be redeemed, even though the equity of redemption had vested in him. It was also pointed out that the defendant, who stood in the position of the mortgagor, would be entitled to redeem the original mortgage, but it does not provide any defence to the suit for redemption of the sub-mortgage. I respectfully accept the above decision; but it does not help the learned Counsel. Reliance was placed by him on the following passage appearing in the said decision:--"the sub-mortgagee has no privity of estate or privity of contract with the original mortgagor, who is now represented by the defendant. So far as the sub-mortgage is concerned the privity of estate and privity of contract are between the mortgagee and the sub-mortgagee and as such the sub-mortgage can be put an end to by redemption or by release, only by the original mortgagee and his representative-in-interest. " this statement is only an obiter; it does not appear to be fully correct. I have already referred to the observation contained in Mullah's book on Transfer of property Act, wherein the learned author points out that it is not correct to say that there is no privity of estate between the mortgagor and the sub-mortgagee. I agree with the learned Judge in saying that the release of a sub-mortgage in favour of the original mortgagor does not extinguish the sub-mort-gage, but it operates only as an assignment of the sub-mortgage in favour of the mortgagor. This question does not arise in the instant case; and the passage quoted above does not, therefore, support the contention of the learned Counsel.;