JUDGMENT

1. This appeal is against the judgment of a learned Judge of this Court and raises two points.

2. It appears that the learned Judge decided a question of fact, viz., whether all the representatives, of the original mortgagees, together, had acquired an interest in a part of the mortgaged property or whether some of the representatives of the original mortgagees had acquired that interest. It has been pointed out to us that this question never arose in this Court and the argument of the appellants seems to be right.

3. In Clause (g), para 2 of the plaint, the plaintiffs stated that the original share mortgaged was a 5 biswa one, that a portion of it, viz., 1 biswa, had already been redeemed, that 2 biswas had been purchased by the mortgagees themselves, that 2 biswas remained under mortgage, that out of these 2 biswas an 11/42 share had also been redeemed and that they wanted the redemption of the remaining 31/42 share out of the 2 biswas. The defendants in their written statement did not contest this statement of facts. Indeed, in para 1 of their additional statements they accepted this statement of facts and raised the plea in law that the integrity of the mortgage having been broken the plaintiffs were not entitled to ask for redemption of more than their legitimate share. It will be noticed, therefore, that on the pleadings question of fact, as to whether all the representatives of the mortgagees had purchased or not a share of the mortgaged property arose. When an appeal was taken to the lower Appellate Court that Court remanded three issues of fact. One of these was:

Have the mortgagees or their representatives acquired the ownership of any part of the mortgaged property.

4. The answer to this was given by the learned Munsif in the following language:

I have to hold that the defendants have no doubt acquired ownership of a small part of the mortgaged property.

5. Not only did the plaintiffs not object to this finding which was really, in accordance with their statement of facts in the plaint, but their Pleader relied on this finding and argued before the learned Judge that the integrity of the mortgage had been broken. In view of these circumstances it is difficult for us to understand how the new question of fact was for the first time raised in the second appeal.

6. Mr. Aziz, the learned Counsel for the respondents, has argued that what the plaintiffs really meant by their statement in the plaint was not that all the representatives of the mortgagees had together acquired a share in the mortgaged property but what was meant was this that, individually, the several representatives had purchased certain shares and the result was that the total amount of shares purchased amounted to 2 biswas. This is really a pleading which cannot be fairly deduced from the statement of facts made in Clause (g), para. 2 of the plaint. Evidently this argument was raised before the learned Judge of this Court for the first time and the learned Judge determined the question of fact because it had never been determined by the Court below. As we understand the pleadings and the proceedings, the pleading brought up before this Court was an entirely new pleading and in our opinion it should not have been allowed to be urged in second appeal.

7. The learned Judge of this Court has held that where the integrity of a mortgage is broken a mortgagor is not entitled to recover by way of redemption more than his share in the property. Mr. Aziz has contested this proposition of law and has cited, as an authority, the cause of Shiam Saran v. Banarsi Das 65 Ind. Cas. 866 : 20 A.L.J. 258 : 4 U.P.L.R. (A.) 102 : AIR (1922) 192. In this case the question was never raised very specifically and no authorities were cited. Indeed, the opinion delivered in this judgment is contrary to the opinion expressed in this Court in Kallan Khan v. Mardan Khan 28 A. 155 : (1905) A.W.N. 225 Munshi v. Daulat 29 A. 262 : A.W.N. (1107)49 : 4 A.L.J. 74 and Zaib-un-nissa v. Prabhu