- (1.) THIS appeal arises out of a suit for redemption of a usufructuary mortgage deed dated 14-6-1907 filed by the plaintiff-respondents Nos. 1 and 2. THIS mortgage was executed by Salik Ram and Chotey Lal in favour of Mahadeo Prasad and others. The defendant-appellants as well as the defendant-respondents Nos. 3 to 5 are the successors of the original mortgagees. The plaintiff-respondents are admittedly the successors of Salik Ram, one of the two mortgagors. They claimed themselves to be the successors of the other co-mortgagor Chotey Lal also, though this fact was dis puted by the defendants.
(2.) THE trial Court held that the plain tiffs were the successors of Chotey Lal also and as such they were entitled to maintain this suit for redemption of the entire mort gaged property. The lower appellate Court without reversing this finding of fact of the trial Court sidertracked this issue as it was of the opinion that even if the plaintiffs are held to be successors of Salik Ram alone, they were entitled to maintain the suit for re demption of the entire mortgaged property and the non- impleadment of the legal heirs, if any, of Chotey Lal would not be fatal to the suit as the controversy involved in the suit could be effectively decided as between the parties to the suit This view of the lower appellate Court is assailed in this second appeal by the learned counsel for the appellants. The findings recorded by the Court below on some other controversial points were also challenged, but the learned counsel for the appellants did not press those points and rightly, because those matters are concluded by findings of fact.
(3.) I have, therefore, to see whether in this case the non-impleadment of the legal heirs of Chotey Lal mortgagor, assuming that there were any such heirs at the time of the suit, is a defect which should result in the dismissal of the suit. The learned counsel for the appellants relies on the pro visions contained in Order XXXIV, Rule 1 of the Code of Civil Procedure which pro vides that subject to the provisions of this Code, all persons having an interest either in the mortgage-security or in the right of redemption shall be joined as parties to any suit relating to the mortgage. This provi sion is subject to the provision contained in Order 1, Rule 9 of the Code of Civil Pro cedure which lays down that no suit shall be defeated by reason of the misjoinder or non-joinder of parties and the Court may in every suit deal with the matter in contro versy so far as regards the rights and inter ests of the parties actually before it. Sec tion 60 of the Transfer of Property Act con fers a right of redemption on every mortga gor subject to the condition that if he has only a share in the mortgaged property he Will not be entitled to redeem his share only On payment of a proportionate part of the mortgage money except where the integrity of the mortgage has been broken on account of the mortgagee having acquired in whole or in part the interest of a mortgagor. From this it follows that if the integrity of the mortgage has been broken, the other co-mortgagor can redeem his own share by payment of the proportionate amount of the mortgage money but otherwise he has to re deem the mortgage as a whole or not to redeem at all. Where the integrity of the mortgage having broken, a co-mortgagor Wants to redeem his own share it is neces sary for him to implead the other co-mort gagors also because in their absence his share cannot be determined and without the deter mination of his share he cannot be permitted to redeem the entire mortgage. In such a case he is entitled to redeem only to the extent of his own share. So the defect of non-joinder of his co- mortgagors in the suit, either as co-plain tiffs or as pro forma defen dants, may be fatal resulting in the dismissal of his suit. But where the integrity of the mortgage is intact and one of the co-mortga gors wants to redeem the entire mortgaged property, the other co-mortgagors should be impleaded as proper parties, but their non-impleadment is not fatal to the suit All the controversial matters between the mortgagee and the mortgagor can be effectively decid ed between the parties who are before the Court within the meaning of Order 1, Rule 9 of the Code of Civil Procedure. In such a case the defect of non-joinder of other co-mortgagors will not be fatal. The same view was taken by a Bench of Patna High Court in Muhammad Yunus v. Champamani Bibi, AIR 1939 Pat 49. It was held in this case that whereas the general rule is that all persons having the equity of redemp tion ought to be brought on the record, the failure to bring any one of them on the record does not necessitate the dismissal of the suit if the Court in his absence can deal with the matters in controversy so far as regards the rights and interests of the parties actually before it The learned counsel for the appellants relied on a decision of this Court in Ahamad Husain v. Muhammad Qasim Khan AIR 1926 All 46. In that case the integrity of the mortgage had been broken and there after one of the co-mortgagors brought a suit for redemption in which the other co-mortgagors were also impleaded as pro forma defendants besides the mortgagee who had acquired ownership in part of the mort gaged property giving rise to the breaking of the integrity of the mortgage. The plain tiff wanted to redeem the entire share in the mortgaged property except that which had been acquired by the mortgagee. It was held that he was not entitled to redeem more than his own share. It was pointed out on his behalf that since in the suit he had implead ed his other co-mortgagors also as pro forma defendants he ought to have been al lowed to redeem their share also along with his own share. This contention was not ac cepted. It was observed that so far as the impleadment of other co- mortgagors is con cerned it was necessary for the proper fram ing of the suit but that fact by itself would not give him a right to redeem more than his own share. Another decision of this Court in Ghura Koer v. Bishun Ram, AIR 1929 All 814, was also referred by the learned counsel for the appellant. That too has no relevancy for the point which is directly in issue before us. In that case also after the integrity of the mortgage had been broken, one of the mortgagors filed a suit for re demption arraying both the mortgagee and his co-mortgagors as defendants. In that suit account was taken and the liability to pay the mortgage money, in respect of the properties which were still left with the mort gagors, was determined. The amount was not paid. Subsequently, another co-mortga gor brought a suit for redemption and he wanted that the accounting should be done again to determine the amount due by the property left with the mortgagors. It was not done by the Courts below on the ground that the previous decision in which this amount had been determined operated as res judicata on that point. When the matter was brought before this Court, it was con tended on behalf of the plaintiff that in the former suit though the plaintiff was impleaded as pro forma respondent he was not a necessary party and as such the determina tion of the amount between the mortgagee and the co-mortgagor, who had brought the previous suit, would not be binding on him. That contention was not accepted on the ground that he was a necessary party in that previous suit in view of the provisions con tained in Order XXXIV, Rule 1 of the Code of Civil Procedure. As observed above, after the integrity of the mortgage has been broken a co-mortga gor who wants to redeem his own share and he is not entitled to redeem more than his own share, has to implead the other co-mort gagors also so that the extent of his share in the mortgaged property and his proportionate liability in the mortgage money may be de termined. This is not the case in the pre sent suit where the plaintiffs wanted to re deem the entire mortgage of which the inte grity was intact. I am, therefore, of the opinion that the view taken by the lower ap pellate Court on this point is correct and this appeal is without any merits.;