The main legal point established in the judgment is that the court will allow redemption of the whole of the mortgage at the instance of a person entitled to a part only of the equity of redemption, depending on the circumstances of each case and the rights acquired by the mortgagee or by third persons subsequent to the mortgage.

Sundara Aiyar, J.

1. The facts of this case so far as they are necessary for the decision of this second appeal are briefly as follow. One Vedachala executed an usufructuary mortgage deed to one Thangavelu on the 7th April 1900, Ex. II. This mortgage was subsequently transferred to the 2nd and 3rd defendants in the suit. The 1st defendant is the heir of Thangavelu. Vedachala had three sons. He and each of the sons were therefore entitled to a fourth share in the property. On the 2nd May 1900 two of the sons Singaravelu and Tiruvengada sold their half share of the property to the 4th defendant. The mortgagees, the 2nd and 3rd defendants received half of their debt from the 4th defendant and gave up possession of a portion of the properties to him.

2. The plaintiff obtained a transfer of the equity of redemption from Vedachela and his remaining son and he has instituted his suit for redemption of the mortgage. He claims to be entitled to be put in possession of the whole property mortgaged by Vedachala on payment of the whole amount and is not content with a decree for possession of half the property on payment of half the mortgage amount. The 4th defendant resists the plaintiffs attempt to recover the whole of the property and contends that as he has become the owner of half of the equity of redemption and the plaintiff entitled only to the remaining half, he should not be allowed to recover possession of more than half of the properties and he claims to be entitled to retain possession of the property in his possession as representing the share of his transferors. The District Munsif gave the plaintiff a decree for the whole property. On appeal the District Judge modified the Munsifs decree holding that the plaintiff was not entitled to recover the whole of the property and held that on payment by the plaintiff of half of the mortgage amount, the plaintiff and 4th defendant should be held to be jointly entitled to the possession of the mortgaged lands. The second appeal to this Court is preferred by the plaintiff and he contends that he is as a matter of right, entitled to recover the whole of the property mortgaged under Ex. II. The question for decision is whether the plaintiff is entitled as a matter of right to redeem the whole of the mortgage and to recover possession of the whole of the property in the circumstances of the case. It will be noticed that the mortgagees have split up the mortgage so far as they could by receiving a portion of the mortgage amount from the 4th defendant, the assignee of half of the equity of redemption and the 4th defendant has now become the owner of a share both in the equity of redemption and mortgage. Section 91 of the Transfer of Property Act lays down that any person having an interest in the right to redeem the property may redeem or institute a suit for redemption of the mortgaged property but I do not think that it lays down that a person who is entitled to a share only of the equity of redemption has under all circumstances, the right to insist on redeeming the whole of the mortgage and recovering possession of the whole of the mortgaged property. Section 60 enacts that a person entitled to a share only of the mortgaged property is not entitled to redeem his share only on payment of a proportionate part of the amount remaining due on the mortgage and lays down an exception where a mortgagee has acquired in whole or in part a share of the mortgagor. The mortgagee under this section has ordinarily a right to insist on treating the mortgage as indivisible and on the redemption of the whole mortgage. But he cannot do so where he has split up the equity of redemption by becoming the owner of a part of it himself. I do not think that there is any principle of justice which requires that a person who is entitled only to a part of the equity of redemption should necessarily he held to have a right to redeem the whole of the mortgage. If there are several persons in whom the equity of