R.N. Sahay, J.
1. This appeal, by the plaintiffs in the suit, is against the decree of 5th Addl. Sessions Judge, dated 27th March, 1985, whereby the plaintiffs' appeal against the decree of the Munsif dismissing the suit for redemption of usufructuary mortgage-bond dated 6.5.1914 and for restoration of possession of entire property described in Schedule-A of the plaint was affirmed.
2. The relevant facts stated as follows. Bansi Ram, Murai Ram and Ajodhya Ram were the owners of 8 decimals of land of plot No. 2827 situated at Barbigha. On 8.1.1914, they executed a mortgage-bond to Chetan Ram and put him in possession. Chetan Ram transferred the mortgage deed to Amirchand Ram by registered deed. Amirchand Ram also transferred his mortgage deed to Shiva Prasad Lai. The latter transferred the mortgage deed to Dhaka Ram who was the ancestor of the defendants. Dhaka Ram died about 30 years ago from the date of institution leaving behind his sons Harangi Ram, Damodar Ram, Ram Jiwan Ram, Ramandan Ram and Nand Kishore Ram and they became usufructuary mortgagees, in respect of the land in question.
3. Three brothers sold the suit property with encumbrance to Naurangi Ram, Ajodhya Ram and Lakhan Ram. These brothers were separate. The purchasers did not redeem the mortgage-bond dated 6.1.1914. Lakhan Ram sold his interest in the mortgage property to his cousins Naurangi Ram and Ajodhya Ram who became the owners of half and half. They had purchased the property in representative capacity of their family. Ajodhya Ram had purchased on behalf of himself and his brother Haro Ram, Bihari Ram and Gajadhar Ram. After the death of Naurangi Ram, his heirs sold their interest to the plaintiffs by registered, deed of sale in the year 1964. Out of remaining 6 annas share the plaintiffs had already purchased 6 annas share in the same year but registration was done only with regard to 4 annas share and the suit is pending for specific performance of 2 annas shares. Plaintiffs tendered the full mortgage money to the defendants but they have not allowed the redemption of mortgage. Hence the suit.
4. The case of the defendants in the written statement was that the mortgage-bond dated 6.1.1914 is not subsisting and hence the redemption could be allowed. The execution of mortgage-bond of 1914 is admitted. On 21.10.1964, descendant of the mortgage-bond executed a sale-deed in favour of defendant No. 1 and other heirs of Dhaka Ram had no concern with the purchase of co-sharer mortgagor's interest and he had paid the money to the heirs of Dhaka and got back the Rehan deed.
5. The learned Munsif, Lakhisarai decided issue No. 4 'whether the Rehan deed dated 6.1.1914 stood redeemed or has been subsisting' in favour of the plaintiff. The learned Munsif found that the defendants had completely given up his case of redemption. The learned Munsif, therefore, held that there is no legal bar to the redemption of the mortgage.
6. The second important issue was whether the plaintiffs are entitled to redeem the entire mortgage-bond or to the extent of their purchase. Though the plaintiffs have claimed 14 annas share in the suit property but in evidence they have claimed 12 annas share. Kewalas Ext, 2 to 2/b show the purchase of 12 anna share of the mortgagors. Regarding 2 anna share there is no Kewala but only Mahada for which a separate suit bearing Title Suit No. 47 of 1967 had been filed. The learned Munsif held that Ext.-A to A/3 shows purchase of 4 anna share only and not 5 anna. It was held by the learned Munsif that these shares show that Ayodhya Ram, Haro Ram and Gajadhar Ram each had 2 anna 8 pie share. The learned Munsif held that the plaintiffs are not entitled to redeem the entire mortgage-bond. They are entitled to redeem the mortgage-bond to the extent of their purchase, i.e., 12 annas share in the mortgage.
7. The appellants preferred appeal against the decree of the Munsif. It was submitted before the learned Addl. District Judge that the judgment of Munsif that the plaintiffs are entitled 12 anna share only was founded on incorrect interpretation of Section 60 of the Transfer of Property Act. The learned Additional District Judge has observed that the plaintiffs are purchaser of 12 anna interest in the property and although they are in possession of a portion of the house property. It was argued before the Addl. District Judge that the owner of the equity of redemption is competent to maintain a suit for redemption of the entire mortgage even against the will of the mortgagee. It was submitted relying on 1949 Privy council 330 that original mortgage cannot claim any mortgagee rights in the remaining lands. In paras 23 and 24 of the judgment the learned Addl. District Judge has discussed the legality of the finding of the Munsif on issue No. 5 as follows:
23. The learned Munsif while deciding issue No. 5 has rightly come to a conclusion that exception to the general provision of Section 60 of the T.P. Act is fully applicable in the present suit. The learned Munsif has quoted the last paragraph of the said Section of the T.P. Act in his judgment. This being the position a mortgagor is not entitled to redeem his share only in the mortgaged property on payment of proportionate amount except only where a mortgagee or if there are more mortgagees than one all such mortgagees has or have acquired, in whole (sic) in part, the share of a mortgagor. From the provisions as laid down under Section 60 of the T.P. Act, it clearly bars part redemption of the mortgage but provides an exception in the case of acquisition of a share by a mortgagee or mortgagees in the share of the mortgagor. Mohan Ram and others under registered, deed of sale which are marked as Ext. A series. It 'was immaterial whether acquisition of the mortgage share was his own acquisition but so far as other co-sharer mortgagees, i.e., the heirs of Dhaka Ram were concerned. It was not necessary that all the mortgagees must acquire share in the mortgage for the application of the exception referred to above.
24. Position would be anomalous if a purchaser defendant who is already in possession of a portion of the property is asked to vacate and give possession to other purchasers. This may create complication. As regards partition of the property amongst the purchasers, they will be at liberty to effect partition by taking shelter of proper forum.
8. The accepted position is that the appellants acquired only 12 anna share in the mortgage property. Defendant No. 1 Damodar Ram who was a mortgagee had purchased the share of the mortgagor Mohan Ram and others under registered deed of sale.
9. The learned Munsif held that the plaintiffs are entitled to redeem the mortgage-bond to the extent of their purchase, i.e., 12 annas share in the mortgage. The appellate Court has taken the same view.
10. In AIR 1994 Kerala 75, it has been held that when a mortgagee acquires portion of the inquiry of redemption, mortgage does not extinguished completely. There can be only a pro tanto extinguishment of the mortgage right to the extent of interest of mortgagor's acquired by the mortgagee and the mortgage of several shares of inquiry of redemption would subsist in view of last para of Section 60 of the Transfer of Property Act, that allows partial redemption.
11. The judgment of the Courts below is proper and no interference is warranted. This appeal is dismissed but without costs.