J U D G M E N T

Challenging the concurrent decree in a suit for partition and redemption of mortgage, defendants 4 and 5 are in appeal. Plaintiff and the first defendant are brother and sister. Defendants 2 and 3 are the children of the first defendant. Defendants 4 and 5 are assignees of plaint schedule item No.3 property from the second defendant. In this appeal, we are concerned only about plaint schedule item No.3 property.

2. The property-plaint schedule item No.3, belonged jointly to the plaintiff, his brother, late Madhavan Pillai and their mother Karthiyayani Amma as per Ext.A1 partition deed of the year 1953. The brother Madhavan Pillai died in the year 1957. His rights devolved on the mother. Thus the mother held 2/3 shares and the plaintiff held 1/3 shares over the property. In the year 1969, as per Ext.A2, the mother and the son-plaintiff, mortgaged the property to one Padmajan. Subsequently, the second defendant obtained assignment of the rights from Padmajan. Thereafter on 26.11.1977, as per Ext.A4 sale deed, the mother-Karthiyayani Amma conveyed her rights over the property to the second defendant. In the year 1980, the second defendant, as per Ext.A3 sale deed, conveyed the property to defendants 4 and 5. The plaintiff has filed the suit for partition and redemption of his 1/3 shares over the property on payment of the proportionate mortgage money.

3. The courts concurrently decreed the suit. The same is assailed in this Regular Second Appeal.

4. Heard learned counsel Sri.George Varghese Perumpallikuttiyil on behalf of the appellants- defendants 4 and 5 and Sri.M.Balagovindan, learned counsel for the contesting respondent-plaintiff on the following substantial question of law :- “Is the suit bad for partial redemption under Section

60 of the Transfer of Property Act ?”

5. The rights of the mortgagee-Padmajan under Ext.A2 mortgage was obtained assignment of by the second defendant. The mother held 2/3 shares and the plaintiff held 1/3 shares of the equity of redemption. As per Ext.A4 the mother purported to convey her rights over the property in favour of the second defendant. In Ext.A4, it was described that she was holding 1/2 right over the property whereas, in fact, she held 2/3 shares. The argument of the learned counsel for the appellant is that, under Ext.A4, the mother has conveyed only 1/2 of the mortgagor's right (equity of redemption) and that the 1/3 out of the 2/3 remained with her. The plaintiff has sought for redemption of only his 1/3rd share. Without seeking for redemption of the entire outstanding mortgage, the suit is bad for partial redemption, is the contention. I am unable to agree with the said contention.

6. The relevant part of Section 60 of the Transfer of Property Act (hereinafter referred to as “the Act”)

reads thus:-

“60. xxxxx xxxxx xxxxx xxxxx Redemption of portion of mortgaged property:- Nothing in this section shall entitle a person interested in a share only of the mortgaged property to redeem his own share only, on payment of a proportionate part of the amount remaining due on the mortgage, except [only] where a mortgagee, or, if there are more mortgagees than one, all such mortgagees, has or have acquired, in whole or in part, the share of a mortgagor.”

It incorporates the rule against partial redemption. A person holding a share only of the equity of redemption is not entitled to seek for redemption of his share alone, but, has to seek for redemption of the entire mortgage. This is the rule against partial redemption. The principle behind the rule is that, if there are several persons interested in the mortgage and each of them files separate suits for redemption of their share of the mortgage, the mortgagee would be put to difficulties. In Nilakant Banerji v. Suresh Chunder Mullick ILR (1886) 12 Cal. 414, the Privy Council held :-

“11. It is quite a new thing to hold that the purchaser of a single fragment of the equity of redemption may come, without bringing the other purchasers bef