JUDGEMENT

Appeal (No. 90 of 1939) from a decree of the High Court (April 15, 1936) affirming a decree of the Subordinate Judge of Agra (February 18, 1932).

The following facts are taken from the judgment of the Judicial Committee This appeal was by the plaintiff in a redemption suit which was brought in the Court of the Subordinate Judge of Agra in 1924. It had reference to a village called Muthamai, in the district of Agra, which at one time belonged to a zemindar called Nawal Singh. In that village the plaintiff inherited the interest of the mortgagee under a mortgage of 1893 granted by Nawal Singh to the plaintiffs grandfather. Having brought a suit (No. 50 of 1911) to enforce that mortgage, the plaintiff purchased Muthamai at the judicial sale in 1923, and thus became vested with the right and title which Nawal Singh had possessed in 1893. The question now raised was as to the amount which he had to pay to free Muthamai from the prior charge created by a mortgage granted by Nawal Singh in 1882 over three other villages as well as Muthamai. Was it the whole sum outstanding on the mortgage of 1882 ? Or was he, in the events which had happened, entitled to redeem Muthamai on payment of a part thereof, and if so, how much had he to pay ? Both Courts in India had held that he must pay the whole sum outstanding, which was Rs.30,000.

Sect. 60 of the Transfer of Property Act (IV. of 1882) was a statement of the right to redeem. It required payment or tender of "the mortgage-money” which had been defined by cl. (a) of s. 58 as "the principal money and interest of which "payment is secured for the time being." Sect. 60 as it stood until 1929 concluded as follows "Nothing in this "section shall entitle a person interested in a share only of "the mortgaged property to redeem his own share only, on "payment of a proportionate part of the amount remaining "due on the mortgage, except where a mortgagee, or, if there "are more mortgagees than one, all such mortgagees, has or "have acquired, in whole or in part, the share of a mortgagor."

Four mortgages were involved in the case—the first three being granted by Nawal Singh in his lifetime, and the fourth after his widows death by his reversionary heirs, (a) January 6, 1882 to Bast Ram and Ram Kishen for Rs.25,000 with interest at 6|- per cent, with yearly rests a simple mortgage of four villages—Muthamai, Phulaechi, Sherpur and Salempur. (b) January 13, 1893 to plaintiffs grandfather, Shah Bhagirath for Rs. 10,000 of two villages—Muthamai and Larhipur. (c) June 24, 1893 to Bast Ram and Ghasi Ram, son of Ram Kishen for Rs.40,000 with interest at 6 per cent, with half-yearly rests a simple mortgage of five villages— Muthamai, Phulaechi, Sherpur, Salempur and Undni. The first four of those villages had been comprised in mortgage (a) and Rs.27,000 out of that mortgage money went to pay off mortgage (a), (d) March 31, 1905 usufructuary mortgage to Ghasi Ram, successor of Bast Ram and Ram Kishen for Rs.i,03,200 of four villages—namely, Muthamai, Undni, Phulaechi and Matsena. Rs.68,097 of that mortgage money went to pay off mortgage (c). It was stipulated that Phulaechi and Matsena might be first redeemed for Rs.43,700 and Muthamai and Undni thereafter for Rs.59,500.

In his mortgage suit of 1911 it was determined against the plaintiff that the mortgage of 1882 was extant as a charge for the original advance having priority to the plaintiffs interest in Muthamai, and that was the basis of his present claim to redeem. The amount due thereon at March 31, 1905, when the usufructuary mortgage was executed, was Rs.45,967. No question of subsequent interest arose since that date the profits of the property had been enjoyed by way of interest as provided in the usufructuary mortgage. But the plaintiff relied on the following transactions which had since taken place with reference to that mortgage.

In 1909 the successors in interest of Ghasi Ram were sued to judgment by certain creditors, and their securi