The right to redeem a mortgage is a tangible property, and an oral partition of mortgaged property is valid.

HARI LAL AGRAWAL, J.

1. This second appeal is by the defendant No. 1 (defendant first party). The plaintiffs-respondents first party instituted a suit for redemption of a mortgage bond dated the 6th May, 1927, executed by four persons, namely, Lakshmi Narain Sukul, Brijnandan Sukul, Pradip Sukul and Chaturbhuj Sukul who were admittedly members of the same family in favour of defendants second party. The plaintiffs are the purchasers of the property under the mortgage from the widow of Brijnandan Sukul under a registered sale deed 3-4-1961 (Ext. 8) for Rs. 1300/-, measuring 3.35 acres, situate in village Musakchak, in the district of Sitamarhi.

2. The plaintiffs case in this regard is that by a private family arrangement between the members of the family of the mortgagors, the land in question was allotted to the share of Brijnandan Sukul who accordingly got himself recorded in Register D and after his death, his widow Ramjoti Kuer inherited his estate. Ramjoti Kuer was also mutated in place of her husband in Register D. She executed the sale deed in favour of the defendant first party on 3-4-1961, as stated earlier, leaving the mortgage debt in deposit for payment to the mortgagees and in this way they acquired a valid title to the properties and became entitled to redeem the mortgage bond.

3. The suit was contested only by the defendant first party who is a competing purchaser of the same property under a registered deed of sale dated 17-4-1961 (3-4-1961) from the members of the second party. The plea set up by the contesting defendant, in essence, was that on a private partition the bharna land had fallen to the share of the heirs of Pradip Sukul and others and not to Brijnandan Sukul alone. It is mentioned that in the mutation proceedings just mentioned above, an application Ext. 2(a) was filed on behalf of the defendant second party on 18-12-1937, wherein they supported the case of Brijnandan Sukul for mutation of his name, admitting therein that there had been a private portion in the family of the mortgagors. With respect to this document, which was described as an Ejabnama (a document akin to a deed of disclaimer) it was alleged that it was a fabricated and fraudulent document. It was further pleaded that in any view of the matter, as it was not a registered document, no title could be claimed on its basis by the husband of Ramjoti Kuer. On these allegations, the right of redemption was contested by the defendant No. 1.

4. The trial court dismissed the suit on the ground that the plaintiffs failed to prove that the suit land had fallen to the share of Brijnandan Sukul in the partition and, therefore, the sale deed executed by his widow did not confer any marketable title on the plaintiffs. An appeal was taken to the lower appellate court by the plaintiffs and the learned Additional Subordinate Judge in disagreement with the trial court, decreed the plaintiffs suit. The lower appellate Court has recorded the following findings :-

(i) Ext. 2(a) even in absence of the registration cannot be brushed aside in as much as it stated to the effect that the bharna land actually fell in the share of Brijnandan Sukul, husband of the plaintiffs vendor (Ramjoti Kuer);

(ii) The defendant first party completely failed to prove his case that the land in question had fallen to the share of his vendors under the private partition in question. There is yet another finding recorded by the lower appellate court to the effect that the plaintiffs were bona fide purchasers. On these findings, the lower appellate court held that the plaintiffs were entitled to redeem the mortgage.

5. From the findings as recorded by the ultimate court of fact, as mentioned above, it is apparent that it has recorded a clear finding that the bharna land had fallen to the share of Brijnandan Sukul. The facts that there had been a private partition between the co-sharers of the mortgagors family is not disputed. As already stated earlier, the defendant based