JUDGMENT :- This appeal arises out of a suit for redemption of a usufructuary mortgage deed dated 14-6-1907 filed by the plaintiff-respondents Nos. 1 and 2. This mortgage was executed by Salik Ram and Chotey Lal in favour of Mahadeo Prasad and others. The defendant-appellant as well as the defendant-respondents Nos. 3 to 5 are the successors of the original mortgagees. The plaintiff-respondents are admittedly the successors of Salik Ram, one of the two mortgagors. They claimed themselves to be the successors of the other co-mortgagor Chotey Lal also, though this fact, was disputed by the defendants.

2. The trial Court held that the plaintiffs were the successors of Chotey Lal also and as such they were entitled to maintain, this sort for redemption of the entire mortgaged property.

3. The lower appellate Court without reversing this finding of fact of the trial Court sidetracked this issue as it was of the opinion that even if the plaintiffs are held to be successors of Salik Ram alone, they were entitled to maintain the suit for redemption of the entire mortgaged property and the non-impleadment of the legal heirs, if any, of Chotey Lal would not be fatal to the suit as the controversy involved in the suit could be effectively decided as between the parties to the suit.

4. This view of the lower appellate Court is assailed in this second appeal by the learned counsel for the appellants. The findings recorded by the Courts below on some other controversial points were also challenged, but the learned counsel for the appellants did not press those points, and rightly, because those matters are concluded by findings of fact.

5. I have, therefore, to see whether in this case the non-impleadment of the legal heirs of Chotey Lal mortgagor, assuming that there were any such heirs at the time of the suit is a defect which should result in the dismissal of the suit The learned counsel for the appellant relies on the provisions contained in Order XXXIV, Rule 1 of the Code of Civil Procedure which provides that subject to the provisions of this Code, 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. This provision is subject to the provision contained in Order 1, Rule 9 of the Code of Civil Procedure which lays down that no suit shall be defeated by reason of the mis-joinder or non-joinder of parties, and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it Section 60 of the Transfer of Property Act confers a right of redemption on every mortgagor subject to the condition that if he has only a share in the mortgaged property he will not be entitled to redeem his share only on payment of a proportionate part of the mortgage money except where the integrity Of the mortgage has been broken on account of the mortgagee having acquired in whole or in part the interest of a mortgagor.

From this it follows that if the integrity of the mortgage has been broken, the other co-mortgagor can redeem his own share by payment of the proportionate amount of the mortgage money but otherwise he has to redeem the mortgage as a whole or not to redeem at all. Where the integrity of the mortgage having broken, a co-mortgagor wants to redeem his own share it is necessary for him to implead the other co-mortgagors also because in their absence his share cannot be determined and without the determination of his share he cannot be permitted to redeem the entire mortgage. In such a case he is entitled to redeem only to the extent of his own share. So, the defect of non-joinder of his co-mortgagors in the suit, either as co-plaintiffs or as pro forma defendants, may be fatal resulting in the dismissal of his suit But where the integrity of the mortgage is intact and one of the co-mortgagors wants to redeem the entire mortgaged property, the other co-mortgagor should be