Co-mortgagors have the right to redeem the whole mortgage, and the absence of the other co-mortgagor's heirs does not prevent a decree for redemption from being granted.

1. The suit property which is the subject of the mortgage in suit is the western half of a property,1 acre and 3 cents in extent. The mortgage was by Kali Aiyan and Chadayan Kunjan, being Ext. G of the year 1093; it was followed by a purakadom by Chadayan Kunjan, being Ext. E of the year 1096. The right under Exts. C and E became vested in one Velu by assignment Ext. I. Velu leased the property to one Kochuraman and afterwards by Ext. A to the first plaintiff with direction to redeem Kochuraman.

Kochuraman was redeemed. Velu transferred his mortgage right in the property to the defendant who filed a suit O. S.569 of 1952 against the first plaintiff for recovery of possession and obtained a decree. That decree was not executed. The four plaintiffs who are the childeren of Kali Aiyan have instituted the suit out of which this second appeal arises, for redemption of Exts. C and E on payment of the amount due to the defendant. The defendant pleaded that there was a partition between Kali Aiyan's heirs and Chadayan Kunjan under which the mortgaged property fell wholly to the share of the latter, and that therefore the plaintiffs have no right to redeem. The Subordinate Judge has found against the partition so pleaded and has also found that one-half of the property belonged to Kali Aiyan in these words:

"It is clear from Exts. C and E that only one-half of the plaint property belonged to Kali Aiyan".

But he dismissed the suit on the ground that Chadayan Kunjan's heirs are not parties to the suit. Incidentally, the judge recorded a finding as follows:

"So the lower court's finding that the plaintiffs have not proved that they are the owners of the equity of redemption is correct".

This in terms does not follow from his reasoning. Having held earlier that the partition set up by the defendant is not proved, it followed as a matter of course, that the plaintiffs as heirs of Kali Aiyan are entitled to a half share of the equity of redemption. As co-mortgagors the plaintiffs have a right to redeem the whole mortgage.

2. As I understand the judgment of the Subordinate Judge, his view seems to be. that without the heirs of the other co-mortgagor on record no decree for redemption could be passed. Under S.91 of the Transfer of Property Act, a co-mortgagor is a person entitled to redeem the mortgage, but it is also prescribed by Order XXXIV, R.1, C. P. C. that 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. In this view, the other co-mortgagor also is a necessary party to the suit. But the question to determine is whether in his absence, a decree could not be granted to the co-mortgagor who sues for redemption. In this case learned counsel for the plaintiffs have also taken the point, that the objection as to nonjoinder is not now open to the defendant, not having set up the objection at an early stage as laid down by Order I, R.9, C. P. C., his case being only that the plaintiffs have no right to redeem. However that be, it has been held in Bansidhar Pandey v. Masudan Singh (A. I. R.1962 Patna 191), that the true test for deciding the point is, whether the rights of the parties on the record can be fully determined in the absence of the other co-mortgagor and whether that determination can be made so as not to affect the rights of the absent party. Following an earlier decision of the same court in Mt. Raj Mohni Debi v. Harihar Mahton (A. I. R.1958 Patna 67) it was held, that one of the fractional owners of the equity or redemption may sue to redeem the whole mortgage and the suit is not liable to be dismissed for nonjoinder of the other co-mortgagors. In the present case, as the owner of the half share of the equity of redemption, the plaintiffs can be allowed to redeem the mortgage by payment to the defendant of whatever is found due to him on settlement of accounts. This will effectually dispose of the case as between the