Satyanarayana Rao, J.-

The first defendant is the appellant in the second appeal. The suit was for redemption of a mortgage executed by the plaintiff and others on 23rd April, 1908 (Exhibit D-1) in favour of one Veeraraghava Pillai, the mortgage being a usufructuary mortgage. Contemporaneously with the document, there was a lease-back of the properties to the mortgagors by the mortgagee. On 28th September, 1910, under Exhibit D-2 the mortgagee assigned his rights under the mortgage to one Venkatarama Gowder who was the head of a joint family. In a partition of 1941, evidenced by Exhibit P-1, dated 30th April, 1941, the rights under this mortgage were allotted to the first defendant, the present appellant. In the mortgagors’ family there were four members, viz., the plaintiff, Palani Chettiar, the second defendant and the third defendant. These were the members of the joint family at the time of the execution of the deed. The assignee-mortgagee purchased in 1916 in a court auction sale one-fourth interest of Palani Chettiar who is now dead and therefore was a merger of the two interests to the extent of one-fourth. The substantial defence, apart from some other minor matters, to the action for redemption was that the plaintiff should not be allowed to redeem more than one-fourth share in the hypotheca, as by reason of his purchase of one-fourth interest of Palani Chettiar the integrity of the mortgage was broken. The learned District Munsif who tried this suit upheld this contention and directed that the plaintiff should get only one-fourth share after partition particularly as there were no other properties in the family to be divided and as he was not inclined to dismiss the suit for redemption on the ground that it was not maintainable which was the objection taken on behalf of the defendants. This course was all the more necessary because after the mortgage, Exhibit D-1, the third defendant created two usufructuary mortgages in favour of Venkatarama Gowder one dated 1st September, 1917 (Exhibit D-5) for a sum of Rs.100 and the other dated 29th August, 1924 (Exhibit D-5-a) for Rs.200. The second defendant created on 5th September, 1925, under Exhibit D-6 a usufructuary mortgage for a sum of Rs.350. The mortgages will undoubtedly operate on their respective shares and cannot affect the interests of the plaintiff. Notwithstanding the fact that defendants 2 and 3 remained ex parte, he also directed division inter se between defendants 2 and 3 and also redemption of one-fourth share to each of them subject however to the condition that before they get possession of the property from the first defendant they should pay the amount due under the usufructuary mortgages to the first defendant. There was some dispute regarding tacking on of some payments made by the first defendant to the mortgage amount, the main item being Municipal taxes paid by the first defendant in respect of the property hypothecated to him. He held that he was entitled to tack it on and granted him relief accordingly. On appeal, the learned Subordinate Judge reversed the decree of the trial court directing partition and granted instead a decree for redemption of the entire property and directed the first defendant to work out his rights by a separate suit for partition.

In the second appeal the main ground urged by Mr. Swaminathan, counsel for the first defendant-appellant is that the view taken by the trial court was correct and that the learned appellate Judge ought not to have interfered with it. It cannot be disputed that the integrity of the mortgage was broken by reason of the merger of one-fourth interest of Palani Chettiar in the mortgagee, the first defendant. A suit for redemption in such circumstances of the entire property was not the proper remedy of the plaintiff who owns only an one-fourth share in the properties. He should have sued for partition and claimed redemption in respect of his share. But the trial court took, what appears to us a sensib

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