Appeal No 1672 of 1966
Appeal from the judgment and order dated 16th March 1965 of the Madras High Court in Appeal Suit No 139 of 1961
P Balagopal A Y Rangam and Lily Thomas Advocates for the appellant
4 28 MNatesan R Ramamurthi lyer and R Gopalakrishnan for the Respondent
The Judgment of the Court was delivered by Grover J
This is an appeal by certificate from a decree of the Madras High Court
The appellant mortgaged his property bearing No 162A West Masi Street Madurai town for a sum of Rs 45000 with the respondent Bank on October 14 1950
He agreed to repay Rs 50001 within a specified date and the balance was payable within two years from the date of the deed together with interest at 101
It was further agreed that if the mortgagor failed to pay the interest periodically and regularly he would be liable to
pay interest at the rate of 12 per annum from the date of such  default and further it he failed to pay the entire amount stipulated within two years he would have to pay the whole amount together with interest at 3 12  per annum
The sum of Rs 5000 was paid within the time specified but the balance remained unpaid
In January 1952 the appellant and his wife borrowed Rs 25000and jointly executed a promote
The wife deposited her title deeds relating to premises No 162 West Masi Street
On June 25 1952 the appellant and his wife created a mortgage of their respective properties Nos 1 62A and 162 West Masi Street to secure repayment of a sum of Rs 8850 
All the three mortgages were in favour of the respondent Bank
In 1953 the Bank instituted a suit on the foot of the last two mortgages and obtained a decree against the appellant and his wife
 This decree appears to have been satisfied
In April 1958 the suit out of which the present appeal has arisen was filed by the Bank on the foot of the mortgage dated October 14 1950
The main defence of the appellant who was the sole mortgagor was that the suit was not maintainable in view of the provisions of section 67A of the Transfer of Property Act and that the stipulation of interest was penal and in contravention of the provisions of the 
A number of other issues were framed but it is altogether unnecessary to mention them
The trial court granted a preliminary decree for the recovery of principal amount of Rs
40000 which remained unpaid with interest at 12 per
annum from August 1 1952 till the date of the decree and thereafter at 6 per annum till realisation
An appeal was taken to the High Court where two points were agitated
The first was based on the provisions of section 67A of the Transfer of Property Act and the second related to the rate of interest
The High Court did not accede to any  of the contentions and dismissed the appeal
Section 67A of the Transfer of Property Act provides that a I mortgagee who holds two or more mortgages executed by the same
mortgagor in respect of each of which he has a right to obtain the same kind of decree under section 67 and who sues to obtain such decree 429 on any one of the mortgages shall in the absence of a contract to the contrary be bound to sue on all mortgages in respect of which the mortgage money has become due
This section was inserted by the Amending Act 20 of 1929 in view of certain conflict among the High Courts in this country with regard to the right of the mortgagee to sue at different times on different mortgages although the mortgagor was the same
As pointed out in Mulla s Transfer of Property Act 5th Edn at page 481 sections 61 and 67A of this Act lay down the simple rule that if a mortgagor has made two or more mortgages of the same property or of different properties to the same mortgagee the mortgagor may redeem each separately but that the mortgagee must enforce all or none
To attract the applicability of section 67A it is essential that the mortgagor must be the same and he should have executed two or more mortgages in respect of each of which he has a right to obtain the same kind of decree under section 67A
In the present case it is not possible to hold that the mortgagor in the suit on the foot of
the mortgage dated October 14 1950 is the same as the mortgagor in the previous suit which was filed on the foot of the mortgages in favour of the appellant and his wife
In the other two mortgages there were two mortgagors one the appellant and the other his wife
There is no statutory provision or rule or principle by which the wife and the husband could be treated as one entity for the purpose of the mortgages
Each was owner of a separate and distinct property and both joined in mortgaging their respective properties
In Moro Raghunath vs Balaji1 the first mortgage was by two bro thers and the second mortgage of part of the same property was by one brother
The Bombay High Court held that the suit to enforce the first mortgage did not bar a suit to enforce the second mortgage
This was before the insertion of section 67A but the principle embodied in that section is clearly illustrated by that case
The bar of section 67A therefore could not possibly come in the way of the institution of the present suit
On the question of interest we are of the view in the light of the provisions of the mortgage deed and all the circumstances that the rate of 12 is unfair and penal
We are inclined therefore to give this relief that the interest should be calculated at the rate of 10 12 which was the original contractual rate from the date of the mortgage to the date of the preliminary decree
Thereafter the interest shall be Payable as directed by the trial court at the rate of 6 per annum till realisation
With this modification the appeal is dismissed but in view of the entire circumstances the parties are left to bear their own costs in this Court
Appeal dismissed
GC 1 ILR 13Bom


Summary:
The appellant mortgaged his property bearing No 162A West Masi Street Madurai Town for a sum of Rs 45000 with the respondent Bank on October 14 1950
In January 1952 the appellant and his wife borrowed Rs 25000 and jointly executed a pronote
The wife deposited her title deeds relating to premises No 162 West Masi Street On June 25 1952 the appellant and his wife created a mortgage of their respective properties Nos
162A and 162 West Masi Street to secure repayment of a sum of Rs 8850
All the three mortgages were in favour of the respondent Bank
In 1953 the Bank instituted a suit on the foot of the last two mortgages and obtained a decree against the appellant and his wife
This decree was satisfied
In April 1958 the Bank filed a suit on the foot of the mortgage dated October 14 1950
The main defence of the appellant who was the sole mortgagor was that the suit was not maintainable in view of the provisions of s 67A of the Transfer of Property Act and that the stipulation of interest was penal and in contravention of the provisions of the 
The trial court decreed the suit and the High Court dismissed the appeal
By special leave appeal was filed in this Court
HELD  If a mortgagor has made two or more mortgages of the same property or of different properties to the same mortgagee the mortgagor may redeem each separately but the mortgagee must enforce all or none
To attract the applicability of section 67A it is essential that the mortgagor must be the same and he should have executed two or more mortgages in respect of each of which he has a right to obtain the same kind of decree under section 67
In the present case it was not possible to hold that the mortgagor in the suit on the foot of the mortgage dated October 14 1950 was the same as the mortgagor in the previous suit which was filed on the foot of the mortgages in favour of the appellant and his wife
In the other two mortgages there were two mortgagors one the appellant and the other his wife
There is no statutory provision or rule or principle by which the wife and the husband could be treated as one entity for the purpose of the mortgage
Each was owner of a separate and distinct property and both joined in mortgaging their respective properties
The bar of section 67A therefore could not possibly come in the way of the institution of the  present suit
429 B F Moro Raghunath vs Balaji ILR  approved  applied
iiIn the light of the provisions of the mortgage deed and all the circumstances the interest rate of 12 was unfair and penal
Rate suitably Reduced
429 G