RAMESH CHANDRA Vs. TULSHI RAMS

JUDGEMENT

(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.

(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