1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.681 OF 2006 1 Gangadhar Manji Choudhari, age: 71 years, Occ: Agril., R/o Takali, Tq. Akole. 2 Sakharam Tanhu Naikwadi, age: 61 years, Occ: Agril., R/o Takali, Tq. Akole. 3 Sindhubai Bhausaheb Khilari, age: 51 years, Occ: Agril., R/o Pimpalgaon Konzira, Tq.Sangamner. 4 Sau.Bharati Bharat Datkhile, age: major, R/o Akole. 5 Sadashiv Tanhaji Naikwadi, age: 66 years, Occ: Service, 6 Bhaurao Tanhaji Naikwadi, age: 69 years, R/o as above. 7 Tarabai Bhaurao Naikwadi, age: major, R/o Akole. 8 Suman Sadashiv Naikwadi, age: major, R/o Akole, District Ahmednagar. Appellants Versus 1 Tukaram Kisan Naikwadi, age: 53 years, Occ: Agril., R/o Akole, District Ahmednagar. 2 Laxmibai Yeshwant Naikwadi, dead, through L.Rs.: 2A Sindhubai Bhausaheb Khilari, 2 age: 48 years, Occ: Agril., R/o Pimpalgaon, Tq.Sangamner. 2B Latabai Yesu @ Yeshwant Naikwadi, after marriage Bharati Bharat Datkhile, age: major, R/o Akole. 3 Badrinarayan Bhaniram Jaju, dead, through L.Rs.: 3A Nandu Badrinarayan Jaju, age: 61 years, 3B Anil Badrinarayan Jaju, age: 58 years, 3C Ramesh Badrinarayan Jaju, age: 55 years, All R/o Akole, Dist. Ahmednagar. Respondents Mr. P.R.Katneshwarkar, advocate for appellants. Mr.V.J.Dixit, Senior Counsel holding for Mr.A.N.Nagargoje, advocate for Respondent No.1. CORAM: R.M.BORDE, J. DATE : 06 th October, 2009. JUDGMENT: 1 This is an appeal by original defendants raising exception to the concurrent judgments delivered by both the Courts below. 2 After presentation of appeal, notice was directed to be issued to the Respondents. Accordingly, Respondents – original plaintiffs have caused their appearance. Learned Counsel for appellants seeks leave to delete names of unserved Respondents who are in fact not contesting parties. Leave granted. Accordingly names of unserved Respondents stand deleted. 3 3 Appeal is admitted on following substantial questions of law and by consent of learned Counsel for respective parties is taken up for final disposal forthwith. (A) Whether the trial Court was justified in granting decree in favour of plaintiff no.1 thereby holding him entitled to equity of redemption of ½ share in the suit property on making payment in the Court? (B) Whether decree passed by the trial Court directing partial redemption is in consonance with provisions of Section 60 of the Transfer of Property Act? 4 Plaintiffs instituted Regular Civil Suit No.9 of 1983 claiming declaration that the sale deed dated 11.03.1987 be declared as illegal, void and further that a decree for redemption together with possession of suit lands be passed in favour of plaintiffs. According to plaintiffs, in March 1971, they were in need of money due to household difficulties and as such, loan amounting to Rs. 1500/- was secured from defendant no.1 and mortgage deed in respect of suit land was executed in his favour. In accordance with the terms contained in the mortgage deed, defendant no.1 was to cultivate the property in lieu of interest. The term for repayment of mortgage amount was prescribed as five years. Defendant no.1, however, executed an Assignment Deed in favour of defendant no.2 and transferred the suit land in his favour. Defendant no.2, in turn, executed Assignment Deed in favour of defendant no.3 and as such, defendant no.3 got possession of the property. According to plaintiffs, transfer by way of assignment between defendants is bad in law. Plaintiffs demanded redemption of mortgage, however, defendants avoided to redeem same and as such, plaintiffs issued notice on 23.03.1992 calling upon defendants to accept the amount and put plaintiffs in possession of the property. It further transpires that defendant no. 4 1, on 11 th March 1987, executed sale deed of the suit land in favour of defendant no.3. According to plaintiffs, the transaction, which has taken place during pendency of suit, is bad in view of principle of lis pendens. 5 Defendant no.3 presented his written statement at Exhibit-13 and controverted the contentions raised by plaintiffs. Defendant no.1 and defendants no.4 and 5 adopted the written statement presented by defendant no.3. Defendants contend that the transaction evidenced in the deed dated 19.03.1971 is not mortgage transaction, but it is a sale with an agreement in respect of repurchase within a period of five years. Plaintiffs have failed to repay the amount within five years, as such, according to defendants, the sale has become absolute. It is not controverted that the land originally belong to plaintiff no.1 and husband of plaintiff no.2 and they executed the mortgage deed in favour of defendant no.1. Defendant no.1 executed an Assignment Deed in favour of defendant no.2 and defendant no.2 has again executed the Assignment Deed in favour of defendant no.3. It is also not disputed that during pendency of suit, plaintiff no.2 transferred her ½ interest in the suit property to defendant no.2 and defendant no.2 had partitioned the property and distributed shares to defendants no.7 to 9. Plaintiff no.1, in these circumstances, claimed partial redemption of equity of mortgage to the extent of his entitlement in the property and for putting him in possession over ½ portion of the suit property. 6 That, so far as transaction dated 19.03.1971 is concerned, the trial Court has held same to be a mortgage transaction on consideration of evidence placed on record. The trial Court granted decree in favour of plaintiffs thereby holding him entitled to equity of redemption of his ½ share of the suit land. The judgment and decree passed by the trial Court has been confirmed by the first appellate Court in Regular Civil Appeal No.725/20000, which came to be heard 5 and disposed of by Additional District Judge, Sangamner. 7 Learned Counsel appearing for appellants has contended that so far as the finding recorded by the Courts below in respect of nature of the transaction between plaintiffs and defendant no.1 is concerned, same is erroneous. According to him, the transaction in question cannot be said to be a mortgage by conditional sale, however, it has to be construed as conditional sale with a stipulation of repurchase. However, it is not open for the appellants to make a grievance in that behalf, as, before the first appellate Court, it has been contended by appellants that the transaction evidenced by deed dated 19.03.1971 is a mortgage by conditional sale and not out an out sale. Even otherwise, on perusal of the document itself, an inference can very well be drawn that the nature of transaction between the parties is that of mortgage by conditional sale as contemplated by Section 58 (c) of the Transfer of Property Act. There is no confirmation of title on the presentee on the date of transaction, but same is postponed for a period until expiry of five years, which itself is an indicator of the fact that the document in question is a mortgage by conditional sale. The evidence led by the plaintiffs in that behalf is also in consonance with the case stated by them in the plaint. The Courts below were, therefore, justified in reaching the conclusion that the transaction entered into between the plaintiffs and defendant no.1 on 19.03.1971 is a mortgage transaction. 8 It is contended by learned Counsel for appellants that it is not permissible for plaintiff no.1 to seek equity of redemption partially. It is contended that integrity of mortgage cannot be permitted to be broken and plaintiff no.1 is not entitled to seek partial redemption, which itself is opposed to provisions of Section 60 of the Transfer of Property Act. Section 60 of Transfer of Property Act, 1882 reads thus: 6 60 Right of mortgagor to redeem:- At any time after the principal money has become due, the mortgagor has a right, on payment of tender, at a proper time and place, of the mortgage-money, to require the mortgagee (a) to deliver to the mortgagor the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee, (b) where the mortgagee is in possession of the mortgaged property, to deliver possession thereof to the mortgagor, and (c) at the cost of the mortgagor either to re-transfer the mortgaged property to him or to such third person as he may direct, or to execute and (where the mortgage has been effected by a registered instrument) to have registered an acknowledgment in writing that any right in derogation of his interest transferred to the mortgagee has been extinguished: Provided that the right conferred by this section has not been extinguished by act of the parties or by decree of a Court. The right conferred by this section is called a right to redeem and a suit to enforce it is called a suit for redemption. Nothing in this section shall be deemed to render invalid any provision to the effect that, if the time fixed for payment of the principal money has been allowed to pass or no such time has been fixed, the mortgagee shall be entitled to reasonable notice before payment or tender of such money. 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. 9 It is to be noted at this stage that defendant no.1 is the mortgagee who has entered into transaction of mortgage with plaintiffs no.1 and 2 on 19 th 7 March, 1971. Defendant no.1 has executed Assignment Deed in favour of defendant no.2 and defendant no.2 has assigned his rights as a mortgagee in favour of defendant no.3. Thus, defendant no.3 has stepped into the shoes of other defendants and is a mortgagee against whom the suit for redemption is entertainable. The provision contained in Section 60 of the Transfer of Property Act, in respect of partial redemption, is operative and applicable in all the cases, “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”. In the instant case, defendant no.3, who steps into the shoes of mortgagee by virtue of assignment in his favour by other defendants, original mortgagee has acquired in part share of mortgagor i.e. plaintiff no.2. It is not controverted that defendant no.3 has acquired ½ share of the mortgagor i.e. plaintiff no.2. Thus, in the circumstances, bar contained in proviso to Section 60 would not be attracted and plaintiff no.1, who is a co-mortgagor is entitled to seek redemption on deposit of proportionate share of the mortgage amount. 10 It is true that when there are two mortgagors, only one among them is not entitled to seek partial redemption to the extent of his mortgaged property. However, this could not be a case when co-mortgagor sells his interest in the mortgaged property in favour of mortgagee himself. Thus, by the act of co-mortgagor, integrity of mortgage is broken and as such, one of the mortgagors would be entitled to seek equity of redemption to the extent of share belonging to him. In these circumstances, plaintiff no.1 is entitled to seek redemption of his ½ share in the suit property by paying the mortgage amount in proportion with his share. 11 Reliance is placed on the judgment in the matter of Maulabax Vs. Sardarmal and another, reported in AIR 1952 Nagpur 341. The above referred principle is reiterated in the judgment cited. It is observed by the Division Bench 8 of this Court: “If the indivisibility of the mortgage is broken, as provided in the proviso to Section 60 of the Transfer of Property Act whether by purchase, inheritance or otherwise, the mortgagor, the subsequent mortgagor or any person entitled to redeem would be entitled to only partial redemption.” 12 Reliance is also placed on the judgment in the case of Vallikatthekkedath Valappil Lakshmikutty Amma and others Vs. Vallikatthekkedath Valappil Demodara Mennon & others, reported in (1997) 3 SCC 317. However, the facts giving rise to the dispute are totally different. The question posed before the Apex Court was as to whether action for securing possession of the mortgaged property can be initiated after expiry of twelve years from the date of redemption of mortgage as decreed. In the instant matter, the question is not as regards securing possession after securing decree in respect of redemption of mortgage. Therefore, ratio laid down in the said judgment is not relevant for consideration of instant appeal. 13 Reliance is also placed on the judgment in the case of Naurang Singh and another Vs. Jangir Singh and others, reported in AIR 1985 Punjab & Haryana 268, wherein it has been held that where only one amongst the number of mortgagees has acquired by purchase a part of the mortgaged property, it cannot be said that the mortgage over that portion has merged in the sale. The purchaser-mortgagee is in no different position as an outsider so far as his rights conferred by his purchase are concerned and he cannot insist that mortgagor should redeem only that part of the property which has not been purchased. The facts giving rise to the dispute in the reported judgment are 9 quite different. In para 4 of the judgment, the High Court has made it clear that the situation would be different and principle applicable to cases wherein other mortgagee or one or all the mortgagees acquire in whole or in part share of the mortgagor, in such contingency, provisions of proviso to Section 60 would be attracted. Thus, in the reported judgment, the contingency, as envisaged by proviso to Section 60, has not arisen and, therefore, the Court has taken a view that the mortgagee cannot insist for partial redemption. 14 In the judgment in the case of Chhaganlal Keshavlal Mehta Vs. Patel Narandas Haribhai, reported in AIR 1982 SC 121, it is observed that: “A perusal of Section 60 indicates that a co- mortgagor cannot be permitted to redeem his own share of the mortgaged property only on payment of proportionate part of the amount remaining due. In other words, the integrity of mortgage cannot be broken.” However, on close scrutiny of the judgment, it appears that the facts giving rise to the controversy before the Apex Court were quite different. In para 17 of the judgment, the Apex Court has observed that: “Section 60 of the Transfer of Property Act deals with the rights and liabilities of a mortgagor. It confers a right of redemption. There is, however, a rider to the right of redemption in the Section itself, which provides: 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.” 15 Thus, it cannot be said, as tried to be canvassed by learned 10 Counsel for appellants, that in no case, the mortgagor can be permitted to redeem his own share in the mortgaged property on payment of proportionate amount remaining due. The exception has been stated in Section 60 itself and the instant case falls within the exception. In the instant matter, it is the mortgagee himself, who has acquired part of the mortgaged property. As such, co-mortgagor is entitled to seek redemption to the extent of his own share on making payment of proportionate part of the amount. 16 For the reasons stated above, I am of the view that the reasons recorded by the Courts below in support of final conclusion drawn are logical and proper and do not call for any interference at the hands of this Court in exercise of powers under Section 100 of the Code of Civil Procedure. The appeal does not deserve favourable consideration. 17 In the result, appeal stands dismissed. However, in the facts and circumstances of this case, there shall be no order as to costs. Pending Civil Applications do not survive and stand disposed of accordingly. (R.M.BORDE) JUDGE ******* adb/sa68106