JUDGMENT : BANERJI, J. This was a suit for redemption of a mortgage and was brought under the following circumstances :—On the 4th of September, 1890, Ashik Husain and Abadi Begam executed a mortgage in favour of Mahbub Ali, to secure the principal sum of Rs. 4,335-3-6. Abadi Begam mortgaged in the document 32 bighas, 13 biswas, 13 biswansis of resumed milak land and Ashik Husain mortgaged 27 bighas, 7 biswas, 17 bis-wansis of muafi land, but the amount of the mortgage was charged on both these shares. Abadi Begam is dead and she left as her heirs her husband, a son and two daughters. The extent of the shares of the children of Abadi Begam was three-fourths, and these they have assigned to the plaintiffs. The share of Ashik Husain, the husband of Abadi Begam, in her property has been transferred to Bhagwati Prasad, one of the defendants to the suit. Out of the amount of the consideration for the mortgage, Rs. 2,122-11-6 were left unpaid by Mahbub Ali, in order to redeem a prior mortgage of the 10th of January, 1880, executed in favour of one Mukh Ram by Ashik Husain. This amount was never paid, and consequently Mukh Ram brought a suit for sale on the basis of his mortgage, obtained a decree and hrought to sale 23 bighas, 17 biswas, 6 biswansis out of Ashik Husain's share. This was purchased by Mahbub Ali on the 21st of August, 1893, in the name of a benamidar. The plaintiffs contend that as the integrity of the mortgage of the 4th of September, 1890, was broken up in consequence of the purchase of a portion of the mortgaged property by the mortgagee, Mahbub Ali, they are entitled to redeem the three-fourths share purchased by them on payment of a proportionate amount of the mortgage money. Their right to bring the suit and to obtain redemption of the three-fourths share which they purchased has been admitted by the courts below and a decree for redemption was granted. The question is, what amount out of the total mortgage money should be paid by the plaintiffs in order to entitle them to redeem. The plaintiffs in their plaint offered to pay Rs. 600 on the allegation that the amount borrowed by Abadi Begam was only Rs. 1,000.
The question is, what amount out of the total mortgage money should be paid by the plaintiffs in order to entitle them to redeem. The plaintiffs in their plaint offered to pay Rs. 600 on the allegation that the amount borrowed by Abadi Begam was only Rs. 1,000. This allegation has been found by the courts below to be incorrect and it must be held that the full amount of the mortgage was payable by the two mortgagors, Abadi Begam and her husband, Ashik Husain. The lower appellate court has directed the plaintiffs to pay Rs. 1,588-6-9. The appellants dispute the correctness of this amount. We are unable to follow the principle on which the court below has declared that sum to be payable by the plaintiffs. The property of Abadi Begam and Ashik Husain being subject to the mortgage of the 4th of September, 1890, the share of each mortgagor was liable, under the provisions of section 82 of the Transfer of Property Act, for the portion of the mortgage debt, which was proportionate to the value of the property mortgaged by her. The learned Vakil for the respondents contends that as the property of Ashik Husain was sold to discharge the prior mortgage held by Mukh Ram and as the mortgagee, Mahbub Ali, purchased that property, he was entitled to throw the whole burden of the mortgage of the 4th September, 1890, on the share of Abadi Begam alone. We are unable to accept this contention. As we have said above, Mahbub Ali withheld payment of Rs. 2,122-11-6, which he undertook to pay to Mukh Ram. It was in consequence of his omission to pay this amount to the prior mortgagee that a portion of the property mortgaged by Ashik Husain under the mortgage of the 4th of September, 1890, was sold. It was Mahbub Ali's own conduct which led to the sale, and he cannot take the benefit of his own wrong. He therefore could not claim that he was entitled to throw the whole burden on the share of Abadi Begam, though originally that share was liable only for its own quota of the debt.
It was Mahbub Ali's own conduct which led to the sale, and he cannot take the benefit of his own wrong. He therefore could not claim that he was entitled to throw the whole burden on the share of Abadi Begam, though originally that share was liable only for its own quota of the debt. We think that the plaintiffs are only liable to pay three-fourths of the amount for which the share of Abadi Begam was proportionately liable under the mortgage, and that out of this amount should be deducted three-fourths of the amount of compensation paid to the mortgagee or his transferees for the acquisition under the Land Acquisition Act of a part of the property mortgaged by her. In calculating the value of the two properties mortgaged to Mahbub Ali, the prior mortgage on Ashik Husain's share ought undoubtedly to be taken into consideration in ordinary circumstances. But as in the present case almost one-half of the amount of the mortgage, which we may reasonably assume to be the amount which Ashik Husain was borrowing, was never paid, we should exclude from consideration the liability of his share of the property under the prior mortgage the amount of which was nearly equal to the amount which Mahbub Ali did not pay. 2. In this view the calculation of the proportionate liability of the share of Abadi Begam should be made as if Ashik Husain's share was not subject to the prior mortgage. On this basis the parties have calculated the amount for which the plaintiffs are liable, and they are agreed that that amount should be Rs. 1,145. We, accordingly, vary the decree of the court below and direct that the plaintiff's claim for redemption of a three-fourths share be decreed on payment within six months from this date, of Rs. 1,145. The parties will pay and receive costs in all courts in proportion to failure and success. In other respects the decree of the court below is affirmed.