N.K. Balakrishnan, J.

Defendants in a suit for partition are the appellants. The suit property measures 47½ cents. It originally belonged to one Narayanakurup and his sister Gowrikuttyamma obtained as per Ext.A1 Otti assignment deed of 1966. Gowrikuttyamma is the mother of the first defendant's husband. Undivided half right of Narayanakurup was assigned to his nephew-the plaintiff, as per Ext.A2 of 1996. On the death of Gowrikuttyamma, her undivided half right devolved upon the defendants, who are the wife and children of Gopinathakurup, the deceased son of Gowrikuttyamma. Thus the plaintiff contended that he has got half right over the entire 47½ cents covered by Ext.A1.

2. The defendants contended that out of 47 cents mentioned above, one half measuring 23 cents being the northern portion was obtained by Gowrikuttyamma and her deceased son as per Ext.B2 document of 1959. It was stated that on the southern side of the suit property, plaintiff has got 9 cents of land, which is not part of the suit property. It was further stated that, to the north of the 9 cents referred to above, first defendant's husband obtained 3 cents as per a release deed of 1985. It was also sated that Gowrikuttyamma had 9 cents of kudikidappu land on the north-western side and it is outside the plaint schedule property.

3. It was found by the courts below that parties are bound by Ext.A1 which is in respect of the entire suit property, whereas Ext.B2 is only in respect of the northern half measuring 23 per cent. The contention that Narayanakurup had only half right over the southern half measuring 23 was found against. It was also found by the courts below that since the entire plaint schedule property was outstanding on mortgage right as per the mortgage deed No. 1600/1113 ME, Gowrikuttyamma and her son had obtained, as per Ext.B2, only the equity of redemption in respect of the northern 23 cents of land.

4. The following substantial questions of law have been framed in this case:

(i) When, under Ext.B2, the equity of redemption became vested in the defendants who are the holders of the equity of redemption, has there not been an extinguishment of the mortgage ?

(ii)Is there not a merger of the mortgage rights as regards the northern half of the plaint schedule property consequent to Ext.B2 and Ext.A1 documents ?

5. There is no dispute regarding the fact that as per Ext.B2 the defendants had obtained the mortgagor's right in respect of the northern half measuring 23 cents. The defendants, who had obtained equity of redemption in respect of the northern half subsequently obtained assignment along with the plaintiff's predecessor, the mortgagee's right, so far as it relates to the northern half and hence the appellants contend that there is a pro-tanto extinguishment of the mortgage right and so in respect of the northern portion of the land, the appellants' predecessor became the absolute owner of the property and as such, the northern half is not available for partition. Since the appellants' predecessor is a co-mortgagee along with the plaintiff's/respondent's predecessor, over the southern half, the appellants have undivided half right over the southern half which alone is available for partition, to be divided into two equal shares, it is further argued on behalf of the appellants. The learned counsel for the respondents would submit that it is not a case where the mortgagee purchased the mortgagor's right and so there cannot be coalescing of the mortgagor's right with the mortgagee's right.

6. It was held by the Apex court in Chhaganlal Keshavlal Mehta v. Patel Narandas Haribhai, (AIR 1982 SC 121):

"A perusal of this provision indicates that a co-mortgagor cannot be permitted to redeem his own share of the mortgaged property only on payment of proportionate part of the amount remaining due. In other words the integrity of the mortgage cannot be broken. Order 34, Rule 1 of the Civil Procedure Code deals with the parties to suits for foreclosure, s