A sharer in the equity of redemption can redeem the entire mortgage, even though the purchaser of the equity of redemption in one of the mortgaged properties is not a party to the suit.

G. K. MISRA, J.

( 1 ) DEFENDANTS 1 and 2 are the appellants against a confirming judgment. Plaintiff no. 1 and defendant No. 3 are brothers. Plaintiffs Nos. 2 and 3 are sons of plaintiff no. 1. The suit is for redemption on the allegation that the plaintiffs and defendant no. 3 executed a mortgage bond Ext. A dated 15-6-1935 for Rs. 200/- in favour of the father of defendants 1 and 2. The mortgagees were put in possession and under Section 17 of the Orissa Money Lenders Act the mortgage has been automatically discharged. There was an allegation in the plaint by way of amendment that defendant No. 3 transferred a portion of the suit property (It relates to item 2 of the schedule) in favour of defendant No. 4. The schedule given in the plaint contains two items not numbered. The dimension of the first item is 35 cubits x 20 cubits, and the dimension of the second item is 30 cubits x 20 cubits. For purpose of convenience these would be described in the judgment hereinafter as items 1 an 2.

( 2 ) DEFENDANTS 1 and 2 contested the suit and averred that Ext. A is a sale and not a mortgage. They further stated that item No. 1 of the plaint schedule was purchased by one Baidyanath Banerji in Court auction for which a sale certificate ex. C dated 15-8-36 was obtained. With regard to the purchase by defendant-4, they denied knowledge.

( 3 ) BOTH the Courts concurrently found that Ex. A is a mortgage and not a sale. Mr. Mohanty does not assail this finding particularly in view of the averment in the written statement that defdts. 1 and 2 admitted that the purchase by Baidyanath was subject to their mortgage.

( 4 ) IT is the common case of the parties that Baidyanath Banerjee purchased the equity of redemption of item No. 1 property by sale certificate Ex. C on 15-8-36. In the trial Court it was admitted by the counsel for both parties that it was not necessary to find out whether any sale was effected by defendant-3 in favour of defendant-4. Both the Courts have accordingly not recorded any finding whether the plaintiffs have any subsisting interest in item No. 2 property.

( 5 ) MR. Mohanty advanced two contentions-- (i) plaintiffs having sold away the equity of redemption in item No. 1 property to Baidyanath Banerjee, and defendant No. 4 having acquired title to item No. 2 property by the sale from defendant-3 and by adverse possession, plffs. have no subsisting title to the equity of redemption of the mortgage security, and so the suit for redemption at their instance is not maintainable; and (ii) even assuming that plaintiffs have a subsisting share in the equity of redemption in respect of item No. 2 property, they are entitled to redemption of that share only and not of the entire mortgage property.

( 6 ) I will first take up the second contention. On the authority of Nawab Azimut Ali khan v. Jowahir Singh, 13 Moo Ind App 404 (PC) Mr. Mohanty contends that a sharer in the equity of redemption cannot redeem the entire mortgage without the consent of the mortgagee. The facts involved in the Privy Council decision were as follows; An estate consisting of 16 villages had been mortgaged to the predecessor-in-title of the Nawab. The villages were then sold in execution of a money decree against the mortgagors. One village Hosseinpur was purchased by the plaintiffs, one village by A, one by B, one quarter of another village by C, and 12 3/4 villages by the mortgagee-Plaintiffs sued to redeem their village of hosseinpore on payment of rateable proportion of the debt, but did not make A, B, and C parties to the suit. The mortgagee objected that they should have been made parties, and that the plaintiffs should have offered to redeem their villages also. The Sadar Court gave effect to the mortgagee's contention and dismissed the suit. Plaintiffs then filed a fresh suit claiming to redeem all the 31/4 villages excepting those purchased by the mortgagee. The mortgagee objected that the plaintiffs were only entitled to redeem their own vill