JUDGMENT : STANLEY, C.J.:— This appeal is not by any means free from difficulty. It arises out of a suit for a redemption of a usufructuary mortgage of the 7th of June, 1860. The plaintiffs are admittedly entitled to the equity of redemption of the entire property which consists of villages called Chapor Asli and Dakkili. It is also admitted that the plaintiffs are entitled to 2 anna 8 pie share of the mortgagee's interest which belonged to one Balbhaddar and to a 5 anna 4 pie share of the mortgagee's interest which belonged to Sukhdeo and Balmakand. The first two defendants are in possession of an 8 anna share of the property as mortgagees representing to that extent original mortgagees and they are also in possession of a 5 anna 4 pie share which belonged to Sukhdeo and Balmokand as sub-mortgagees under two sub-mortgages. The claim of the plaintiffs is to redeem the entire mortgaged property by payment of the amount due on foot of the mortgage, viz., seven thousand five hundred rupees, after deducting a sum of rupees twelve hundred and fifty representing the 2 anna 8 pie share to which the plaintiffs are absolutely entitled. The court below has allowed the plaintiffs' claim save in respect of the 5 anna 4 pie share. This share it has excluded from the operation of the decree on the ground that the plaintiff did not seek to redeem the sub-mortgages to which we have referred and therefore they cannot get possession of these shares in this suit. We think in adopting this view the Subordinate Judge was wrong. The plaintiffs, who have purchased the equity of redemption of all the mortgaged property, are entitled to redeem the mortgage provided that they implead all necessary parties. The sub-mortgagees have derivative interests in the mortgage as sub-mortgagees and they were therefore properly impleaded in the suit. The proper course we think for the court below to have adopted was to ascertain what sum is due to the sub-mortgagees or to their representatives on foot of the sub-mortgage which are dated respectively the 15th of December, 1890, and 6th of September, 1895, and to direct payment of this sum out of the money lodged in court which is the full amount of principal which the plaintiffs are liable to pay.
The learned Subordinate Judge appears to us to have attached undue weight to the proceeding recorded by him on the 9th of December, 1903 (No. 68 of the record). The pleaders for the plaintiffs made certain admissions in answer to questions put to them which led the court to entertain the view that the plaintiffs abandoned their claim in respect of the 5 anna 4 pie share. The answers of the pleader which induced this belief did not warrant the conclusion. He merely stated that the redemption which the plaintiffs sought was of the mortgage of 1860, and they did not set up a claim to redeem the sub-mortgagees. He did not apparently understand the position, but this did not justify the court below in assuming that the plaintiffs did not desire to have the mortgage of 1860 fully redeemed. As was laid down in the case of Narayan Vithal Maval v. Ganoji, [1891] I.L.R., 15 Bom., 692., the rule is that “in the case of a derivative mortgage or sub-mortgage the judgment directs an account of what is due to the original mortgagee or his assignee and then what is due to the derivative or sub-mortgagee, and that upon payment to the latter of the sum due to him, not exceeding the sum found due to the original mortgagee and on payment of residue, if any, of what is due to the original mortgagee, both of them shall reconvey to the mortgagor.” Before we pass a final order Ave must, therefore, remand the following issue to the court below, viz.,—” What sums are due to the defendants 1 to 4 on foot of the sub-mortgage of the 10th December, 1890, executed by Sukhdeo Prasad in favour of the defendant, Debi Prasad, and also on foot of the sub-mortgage of 6th September, 1895, executed by Balmokand in favour of the defendants 1 and 2.” The court may take such relevant evidence as the parties may tender. On return of the findings the parties will have the usual ten days for filing objections. As regards the only other ground of appeal which has been discussed before us, viz., that a bond executed on the 9th of December, 1861 (No. 41C of the record) is a clog upon redemption and as such could not be given effect to.
On return of the findings the parties will have the usual ten days for filing objections. As regards the only other ground of appeal which has been discussed before us, viz., that a bond executed on the 9th of December, 1861 (No. 41C of the record) is a clog upon redemption and as such could not be given effect to. The learned vakil for the respondents was bound to admit that this ground of appeal was well-founded, In view of the decision in Sheo Shanker v. Parma Mahton, [1904] I.L.R., 26 All., 559. this ground of appeal could not be resisted. The bond, which has been relied upon clearly is a clog upon redemption within the rule referred to in that case. This matter must not be overlooked when the case comes up for final orders. The objections filed under section 561 of the Code of Civil Procedure have been abandoned.