GANPATIA Vs. CHHOTI

JUDGEMENT

(1.) THIS is a defendant -mortgagee's second appeal arising out of a suit for redemption of mortgage in respect of a house described in para No. 1 of the plaint and situated in the town of Dholpur.

(2.) THE facts not now in dispute are that the house in question was jointly owned by the plaintiff -respondent Smt. Chhoti and respondent -defendant No. 2 Smt Devalia, whose husbands Loka and Chhitariya respectively were brothers. After their husbands had died Smt. Chhoti and Smt. Devalia, mortgaged the house for a sum of Rs. 1000/ -in favour of the appellant -defendant No. 1 Ganpatia by a registered deed dated 5 -6 -1962. The mortgagee rented out the mortgaged house to the mortgagors and the rent agreed was' equal to the interest on the mortgage money. It further appears that Smt. Devalia sold her undivided half share in the property to the mortgagee Ganpatia. On 23 -3 -1963 plaintiff Smt. Chhoti filed suit for redemption of the whole house against Ganpatia and impleaded Smt. Devalia also as a proforma defendant. The learned trial Court held that the plaintiff can claim only partial redemption of the property to the extent of her share on payment of Rs. 500/ - and directed a preliminary decree to be drawn in accordance with Order XXXIV, Rule 7, C. P. C. On appeal by the plaintiff, the learned Civil Judge No. 1, Bharatpur modified the judgment and decree of the trial court as follows: - - 'This appeal partly succeeds and is hereby allowed to the effect that the plaintiff shall be entitled to redeem her half share in the property on payment of Rs. 500 as mortgage money. She shall, however, be entitled to recover possession of the whole of the property on payment of the above mortgage debt. On payment of Rs. 500/ - by the plaintiff to defendant No. 1, the latter shall reconvey half of the property to the plaintiff and shall also hand over possession of the whole of the property to her. In case of default in payment of the mortgage amount by the plaintiff within a period of 3 months, she shall be debarred from redeeming the property in future.'

(3.) LEARNED counsel for the appellant mortgagee has urged that a suit for partial redemption can be decreed in the facts and circumstances of the present case. He has relied on V. Ramaswami v. Kailasa Thevar AIR 1951 SC 189; Ghasiram v. Hiralal, AIR 1954 Madh Bha 67, Sidheshvar v. Ganpatrao AIR 1926 Bom 303. Khiarajmal v. Deim (1905) ILR 32 Cal 296 (PC) and Subba Rao v. Balusu Buchi AIR 1923 Mad 533. On the other hand learned counsel for the plaintiff -respondent has urged that the integrity and indivisibility of the mortgage must be maintained and the plaintiff is entitled to redeem the whole mortgage. He has placed reliance on Mamu v. Kuttu (1883) ILR 6 Mad 61. Subba Rao v. Balusu Buchi AIR 1923 Mad 533; Mirza Yadalli Beg v. Tukaram AIR 1921 PC 125, Ghulam Sarwar Khan v. Abdul Wahab Khan AIR 1949 PC 330, Ramaswami v. Subramania AIR 1967 Mad 156, Alekha v. Jagabandhu AIR 1971 Orissa 127, Moro Joshi v. Ram Chandra Dinkar Joshi (1891) ILR 15 Bom 24.