Purna Chandra Tewari v. Gobinda Mishra — 1948 DIGILAW 9 (PAT)

Judgment Reuben, J. 1. This appeal by the plaintiff is directed against a decision of the Additional Subordinate Judge of Purulia, dated the 25th July 1945, dismissing an appeal against decision of the Munsiff of Raghunathpur, dated the 24th March 1945. A cross-objection was filed in the lower appellate Court. This has been allowed and the suit has been remanded for a fresh decision on Issue No. 7 framed by the Munsiff and also on new issues directed to be framed by the Subordinate Judge. The appeal arises out of a suit for redemption. 2. The mortgaged property consists of a one anna share in a Kheraj brahmottar interest in mouza Mettala. The Kheraj brahmottar interest to the extent of four annas was held by four brothers, Haii Lall Tewari, Madhu Lall Tewari, Thakur Lall Tewari and Jatan Lall Tewari, each of the brothers being entitled to an interest of one anna. The one anna interest of Madhu Lall Tewari was mortgaged by his grandson, Jaso-danandan Tiwari (defendant No. 5), on the 26th May, 1921, to one Siva Narayan Mishra, father of defendants Nos. 1 to 3 and husband of defendant No. 4. Subsequent to this mortgage, on the 3rd November 1924, the Tewaris of the four branches executed an arpannama, dedicating some of the Kheraj brahmottar interest to Sri Sri Durga Mata for the purpose of Durga Puja. This arpannama included some of the mortgagee sued on the foot of his mortgage (Mortgage Suit No. 103 of 1934), and got a decree for sale. In this suit, the Diety was not impleaded. In execution of the decree, Kanai Lal Mudi (Defendant No. 6), purchased the mortgaged property on the 9th of December 1935, in full satisfaction of the decretal dues and got delivery of possession on the 3rd April 1936. Subsequently he sold his interest to defendants Nos. 8 and 9, who have themselves transferred a three pies share out of this interest to defendants Nos. 10 to 13. The present suit has been brought by the piety, represented by plaintiffs Nos. 1 to 6 as sebaits, for redeeming the entire mortgage. They have impleaded as defendants, defendants Nos. 8 and 14, whom they describe as sebaits of the Diety, alleging that they are unwilling to join as plaintiffs. 10 to 13. The present suit has been brought by the piety, represented by plaintiffs Nos. 1 to 6 as sebaits, for redeeming the entire mortgage. They have impleaded as defendants, defendants Nos. 8 and 14, whom they describe as sebaits of the Diety, alleging that they are unwilling to join as plaintiffs. According to the plaintiffs, two members of each branch of the family were appointed as sebaits of the Diety, plaintiffs Nos. 1 and 2 representing the branch of Hari Lall, Plaintiffs NOS. 5 & 6 the branch of Madhu Lall, plaintiffs Nos. 3 and 4 the branch of Thakur Lall, and defendants 8 and 14 the branch of Jatan Lall. 3. The defence substantially was that the de-bottar grant was not valid, and that it was not acted upon, and, finally, that even if it was a valid and effective grant, the plaintiffs are entitled to redeem only the property governed by the grant and not the entire mortgaged property. 4. The Munsiff, in a detailed and painstaking judgment, decided the first two points in favour of the plaintiffs. The third point he decided in favour of the defendants and decreed the suit accordingly. 5. An appeal was filed against this decision by the plaintiffs. There was a cross-objection by the defendants. On the point regarding partial redemption, the Subordinate Judge agreed with the Munsiff and dismissed the appeal. As regards the validity of the grant, he considered that further investigation was necessary on certain points specified by him and directed the Munsiff to investigate them after giving the parties an opportunity of adducing fresh evidence thereon. He considered that the Munsiff had not properly discussed the evidence on the record as to whether the arpannama had been acted upon. He, therefore, set aside the Munsiffs finding on the point and directed him to give a fresh finding on a reconsideration of the evidence "according to law." 6. The first point urged by Mr. Ghosh on behalf of the appellants is that, by the dismissal of the appeal, the Subordinate Judge confirmed the decree for partial redemption and, therefore, the order remanding the case was without jurisdiction. It seems to me that the effect of the order dismissing the appeal must be considered in the light of all the circumstances of the case. Ghosh on behalf of the appellants is that, by the dismissal of the appeal, the Subordinate Judge confirmed the decree for partial redemption and, therefore, the order remanding the case was without jurisdiction. It seems to me that the effect of the order dismissing the appeal must be considered in the light of all the circumstances of the case. Ordinarily, where there is only an appeal and no cross-objection, the effect of dismissing an appeal is to confirm the decree of the lower Court. Here, however, there was a cross-objection and that cross-objection was given effect to by the Subordinate Judge at the same time that he dismissed the appeal. We have, therefore, to consider exactly what relief was asked for by the appeal and by the cross-objection. In the appeal what the plaintiffs asked for was that, in place of partial redemption, they should be allowed to redeem the entire mortgage. In the cross-objection the defendants asked that the decree for partial redemption should be set aside altogether. When, therefore, the Subordinate Judge dismissed the appeal and remanded the case for rehearing in pursuance of the cross-objection, he decided finally so far as his Court was concerned that the plaintiffs could not get anything more than a decree for partial redemption. At the same time, however, he kept open the question as to whether they were entitled to a decree for redemption at all -- a question to be decided on the basis of the rehearing directed by him. There is, therefore, no force in this contention of Mr. Ghosh. 7. Next Mr. Ghosh urges that the validity of the arpannama and the investigation as to whether it was acted upon raises questions of paramount title which ought not to be gone into in a mortgage suit. I do not think that there is any force in this contention. These issues directly relate to the title of the plaintiffs to redeem the property and to maintain this suit. Under the sale in execution of the mortgage decree in Suit No. 103 of 1934 and the subsequent sales mentioned above, the title to the one anna share of Madhu Lall Tewari has passed to the contesting defendants and they are entitled to challenge the validity and effect of the arpannama so far as it relates to this property. Under the sale in execution of the mortgage decree in Suit No. 103 of 1934 and the subsequent sales mentioned above, the title to the one anna share of Madhu Lall Tewari has passed to the contesting defendants and they are entitled to challenge the validity and effect of the arpannama so far as it relates to this property. It must be remembered, however, that the arpannama was executed in 1924 and the challenge to the title of the deity has been raised in 1944. Supposing that effect was given to the arpannama, it seems very unlikely that there still survives in any one the right to challenge the title of the diety. Therefore, if in the re- , hearing by the lower Appellate Court which we propose to order, the learned Judge finds that the arpannama was acted upon, it will be necessary for him to consider further whether the right to challenge the title of the deity survives. 8. The next contention of Mr. Ghosh is that there is sufficient evidence upon the record relating to the issues in respect of which the remand has been made and the Subordinate Judge was not justified in making the remand. 9. This objection is in my opinion justified so far as the remand relates to the question whether the arpannama was acted upon. An express issues was framed relating to this question and evidence was adduced by both the parties upon the point. The reason given for the remand on this point is that in the opinion of the Subordinate Judge the evidence had not been properly discussed by the Munsiff, He points out that the original arpannama was produced before the Munsiff by one of the donors, and that an allegation was made on behalf of the defendants that the arpannama had never been made over to the sebaits. The Munsiff rejected this contention basing his decision on certain information obtained by him, otherwise than by evidence duly tendered in Court, regarding the practice in Registration Offices when documents are taken delivery of after the lapse of one month after registration. In the opinion of the Subordinate Judge, the Munsiff acted irregularly in not putting into the witness-box some officer of the Registration Office and giving the defendants an opportunity of cross-examination. In the opinion of the Subordinate Judge, the Munsiff acted irregularly in not putting into the witness-box some officer of the Registration Office and giving the defendants an opportunity of cross-examination. Secondly, he considered that the Munsiff took a great risk upon himself by personally comparing the alleged signatures of some of the donors appearing in certain account books produced by the plaintiffs. It is riot necessary for me at this stage to express any opinion as regards the correctness of the view taken by the Subordinate Judge regarding the procedure followed by the Munsiff. It is sufficient to say that the reasons given by the Subordinate Judge are not sufficient for setting aside the finding of the Munsiff and directing him to reconsider the evidence. It was obvious from a perusal of the Munsiffs judgment that he had taken considerable pains to deal with all the evidence in the case. There was, therefore, no point in compelling him to review the evidence again in the hope that, perhaps, he might come to a different finding on this point of fact. The Subordinate Judge himself was equally a Court of fact, the evidence was all before him, and he was entitled on that evidence to come to a contrary finding if in his opinion, the Munsiffs finding was wrong. So far as the remand has been ordered on this point, therefore, the direction of the Subordinate Judge must be set aside. This point must be decided by the lower appellate Court itself on a consideration of the evidence upon the record. 10. As regards the fresh issues directed to be framed by the Subordinate Judge, it is necessary to refer to the plea of the plaintiffs and the finding of the Munsiff. In paragraph 3 of the plaint, it is alleged that the arpannama was executed by "defendant No. 5 and all the other Tewari co-sharers." The relevant issue on the point is, "was the deed of gift in question validly executed?" This is the issue upon which the parties went to trial. In paragraph 3 of the plaint, it is alleged that the arpannama was executed by "defendant No. 5 and all the other Tewari co-sharers." The relevant issue on the point is, "was the deed of gift in question validly executed?" This is the issue upon which the parties went to trial. The finding of the Munsiff that the arpannama was validly executed is based not upon the fact that it was executed by all the co-sharers, as alleged in the plaint, but on two grounds: (1) that the persons executing that arpannama did so with the consent of all the coparceners, and (2) that the dedication relates to an insignificant part of the joint family property, within the powers under the Mitakshara law of the Karta of a joint family to make a dedication in favour of a Deity. Neither of these points having been raised by the pleadings or in the issues, the Subordinate Judge was perhaps justified in directing that they should be investigated after framing proper issues and giving the parties an opportunity of adducing fresh evidence thereon. Whether such an investigation is necessary will, however, depend upon whether the lower appellate Court finds that there still exists in the contesting defendants a right to challenge the title of the Deity, 11. In addition to the above issues, the Subordinate Judge also directed issues to be framed as to "whether the grant was invalid by reason of the fact that some of the shebaits appointed, as also some of the donors, were minors, and whether the plaintiffs are entitled to maintain this suit under the terms of the grant." It has been urged by Mr. Ghosh that these points were not raised in the Court of the Munsiff. They are obviously points which require consideration. The second of these issues seems to arise out of paragraph 4 of the plaint, where it is stated: "that it is mentioned in the arpannama whatever shall be done by a majority of the sebaits shall be legal. Hence the plaintiffs institute this suit, by making all the other co-sharers parties to the suit." The Subordinate Judge had the arpannama before him. A remand was, therefore, not necessary on this point. As to the other, the necessity of a remand would only arise if the right to challenge the title of the Diety is found to be still surviving. 12. Mr. A remand was, therefore, not necessary on this point. As to the other, the necessity of a remand would only arise if the right to challenge the title of the Diety is found to be still surviving. 12. Mr. Ghosh is on a firmer ground when he attacks the form in which the investigation of these issues has been directed. What the Subordinate Judge has done "has been to treat the cross-objection as disposed of, to re-open the suit, and to direct the Munsiff to dispose of the suit on the result of his investigation of the issues referred to him, leaving it to any party that may be aggrieved by the fresh decisions of the Munsiff to file a fresh appeal. This procedure obviously causes unnecessary harassment to the parties. The proper procedure is provided by Order XLI, Rule 25, under which the appellate Court is empowered, if necessary to frame issues and refer the same for trial to the Court from whose decree the appeal is preferred, and it is directed that the lower Court shall proceed to try such issues, and shall return the evidence to the appellate Court together with its findings thereon and the reasons therefor. If upon the rehearing the lower appellate Court finds a remand necessary, it should be made as provided in Order XLI, Rule 25. 13. This brings me to the main point in the appeal, namely, whether the plaintiffs, if they are entitled to redeem the property, are entitled to redeem the entire mortgage and not merely the portion affecting the property dedicated to the Deity. For the purpose of this discussion, I will assume that the arpannama was duly executed and has been acted upon, that is to say, that the plaintiffs are entitled to maintain this suit. 14. For the purpose of this discussion, I will assume that the arpannama was duly executed and has been acted upon, that is to say, that the plaintiffs are entitled to maintain this suit. 14. It seems to me that the answer to this question is to be found in the last paragraph of Sec. 60 of the Transfer of Property Act, 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." By the purchase at the sale in execution of the mortgage decree, the purchaser acquired not merely the rights of the mortgagor but also the rights of the mortgagee. The effect of the sale, therefore, was the same as it would have been if the purchase had been made by the mortgagee himself. In the sale, what was put up to be sold was the equity of redemption in the property. That sale, when it was confirmed, became effective against all persons interested in the equity of redemption, except the Deity, who, not having been impleaded, retained her right to redeem. The result of the sale, therefore, was that the purchaser, who stood in the position of the mortgagee, acquired an interest in a part of the mortgaged property. This under the provisions of the last paragraph of Sec. 60 is sufficient to sever the integrity of the mortgage, and the plaintiffs can only sue for partial redemption. The principle has been explained by Das, J., in Sheo Narain Sahu V/s. Ram Nirekhan Ojha, AIR (6) 1910 pat 399, where the mortgagee had purchased the mortgaged property in execution of a decree obtained on the foot of the mortgage without impleading a person interested in a portion of the mortgaged property. "The general rule is, of course, based on the principle that a mortgage is one and indivisible, and that the property comprised in it is in its entirety security for the entire debt and for every part of it; but the general rule cannot obviously apply when the integrity of the mortgage is broken up. "The general rule is, of course, based on the principle that a mortgage is one and indivisible, and that the property comprised in it is in its entirety security for the entire debt and for every part of it; but the general rule cannot obviously apply when the integrity of the mortgage is broken up. In the case before me the plaintiff, who is the mortgagee, has acquired the entire share of the mortgagor, except such share which passed to the defendant by his purchase. The equity of redemption is now in two different person, namely, the plaintiff and the defendant, with this result; that the integrity of the mortgage security is broken up. In such circumstances, it is well settled that a purchaser of a portion of the equity of redemption is clearly entitled to claim partial redemption : See Hari Kissen V/s. Veliat Hossein, 30 Cal 755, Gangadas Bhatar V/s. Jpgendra Nath, 11 Cal WN 403 and Hamida Bibi V/s. Ahmad Hussain, 31 All 335. In my opinion, whenever a person is entitled to claim partial redemption, he may also be compelled to redeem that portion of the mortgaged properties in which he may be interested. If this were not so it would require two litigations to work out the equities between the parties." 15. In somewhat similar circumstances, in Mt. Azlzunissa V/s. Komal Slngh, 9 Pat 930, Kulwant Sahay, J., with whom Adami, J. agreed observed: "The general principle of law is that the mortgage contract is indivisible and it is the right equally of the mortgagor and the mortgagee to keep it it indivisible. Where, however, there has been a severance of the security and the integrity of the mortgage has been broken, it is the right of the mortgagee as well as of the mortgagor, or the person having the equity of redemption, to insist on an apportionment of the mortgage debt upon the several mortgaged properties and on partial redemption. The purchaser of the mortgaged properties in execution of a mortgage decree acquires not only the interest of the mortgagee but also the equity of redemption of the mortgagor, and he is entitled to redeem other mortgagor. The purchaser of the mortgaged properties in execution of a mortgage decree acquires not only the interest of the mortgagee but also the equity of redemption of the mortgagor, and he is entitled to redeem other mortgagor. The defendant No. 1 as a purchaser of one of the mortgaged properties has acquired the equity of redemption of Jawad Hussain and can claim a right to redeem the entire mortgage of the plaintiffs inasmuch as she is not bound by the decree obtained by the plaintiffs in the suit on their mortgage as her predecessor-in-title was not made a party thereto. Upon such redemption by the defendant No. 1 the plaintiffs in their turn as purchasers of the equity of redemption of Jawad Hussain can similarly claim the right to redeem the defendant No. 1. The question in the present case is how are the equities between the parties to be worked out? In my opinion the view taken by the learned Subordinate Judge is correct and the defendant No. 1 can be allowed to redeem only mauza Jamuawan, Tauzi No. 7703." 16. Another authority to the same effect is Bhekdhari Mahton V/s. Radhika Koer, AIR (21) 1934 Pat 648, in which Mohammad Noor, J., Agarwala, J., (as he then was) agreeing, on an examination of the above two cases along with some other decisions came to the conclusion that: "If the mortgagee omits to implead persons interested in a portion o f the mortgaged property and then tarings about the property to sale and purchases it himself, he is bound to allow the redemption of the portion concerned on payment of the proportionate amount." The facts were similar in Kamakshya Narain Singh V/s. Ramzan Ali, AIR (32) 1945 Pat 106, decided by me sitting with Chatterji, J. There, however, the suit had been brought by the mortgagee himself and that fact was relied on by Chatterji, J., who delivered the leading judgment, as taking the case out of the operation of Section 60. In my judgment I indicated, however, that the provisions of the last paragraph of Sec. 60 were applicable by reason that the plaintiff was seeking to allow redemption on the basis that after the redemption he, the mortgagee, "would continue to own a portion of the mortgaged property. 17. In my judgment I indicated, however, that the provisions of the last paragraph of Sec. 60 were applicable by reason that the plaintiff was seeking to allow redemption on the basis that after the redemption he, the mortgagee, "would continue to own a portion of the mortgaged property. 17. In that decision, we referred to a decision of the Judicial Committee of the Privy Council in Shah Ram Chand V/s. Parbliu Dayal, 47 Cal W N 1, a case which has also been cited at the Bar before us here. On the facts, that case is distinguishable, for the point which arose there for decision was whether a mortgagee, by permitting some of the mortgaged properties to be redeemed on payment of mortgage money, severs the integrity of the mortgage. Their Lordships held that it did not. In the course of their decision, their Lordships referred to the provisions of Sec. 60 of the Transfer of Property Act and made the following pertinent observation: "That single exception mentioned -- the case of his having acquired in whole or in part the share of a mortgagor -- shows that subsequent transactions by him as to parts of the property are within the contemplation of the clause. Indeed part of the argument for piecemeal redemption is that a release of a portion of the land is equivalent to a purchase by the mortgagee. But the exception is made in the latter case, not on the footing that it is unjust that the full burden Of the security should be imposed on the other parts of the property, but because their claim to contribution has now become a claim against the mortgagee or his interest in the equity of redemption. Circuity of action is thought to be avoided if partial redemption be permitted." The position is exactly the same here. Supposing that the plaintiffs are permitted to redeem the entire mortgage, they would not thereby be entitled to recover and retain possession of the entire mortgaged property. All that they would be entitled to against the contesting defendants is a right to claim contribution. The equities between the parties, therefore, would have to be worked out in a subsequent suit, an eventuality which will be avoided by allowing only partial redemption. 18. In support of his contentions, Mr. All that they would be entitled to against the contesting defendants is a right to claim contribution. The equities between the parties, therefore, would have to be worked out in a subsequent suit, an eventuality which will be avoided by allowing only partial redemption. 18. In support of his contentions, Mr. Ghosli has referred to the case of Mirza Yadalli Beg V/s. Tukaram, 47 Ind App 207 (PC) and Fakir Chand V/s. Babulal, 39 All 719. In the former case, the mortgagee had got a decree for foreclosure against the mortgaged property which consisted of nine fields. The transferee of the equity of redemption in one field who was not impleaded in the foreclousure suit, sought to redeem the mortgage. It is obvious on this statement of the facts that nothing has occurred to affect the integrity of the mortgage. It was, therefore, held that he was entitled to redeem the entire mortgaged property. 19. In Fakir Chand V/s. Babu Lal, 39 All 719, there was a mortgage in favour of the plaintiff-appellant of a certain house by two joint owners of the same, each entitled to and in possession of a half share in the house. One of these mortgagors subsequently sold his half share to the respondent one Mt. Lachmi Kunwar, who thereupon deposited in Court, for payment under Section 83 of the Transfer of Property Act, what was found to have been the full amount due on the mortgage, both principal and interest. The mortgagee refused to accept this deposit but suggested that he would have no objection to allowing Mt. Lachmi Kunwar to redeem, upon payment of one-half of the mortgage debt, one-half of the house. In these circumstances, it was held that Mt. Lachmi Kunwar was entitled to redeem the whole mortgage. Here, again, it is clear from the recital of the facts that nothing had occurred to sever the integrity of the mortgage. 20. The contention of Mr. Lachmi Kunwar to redeem, upon payment of one-half of the mortgage debt, one-half of the house. In these circumstances, it was held that Mt. Lachmi Kunwar was entitled to redeem the whole mortgage. Here, again, it is clear from the recital of the facts that nothing had occurred to sever the integrity of the mortgage. 20. The contention of Mr. Ghosh finds some support in the following passage occurring in the judgment of Chatterji, J. ((Rowland, J, agreeing) in Mir Wajid Ali V/s. Alidad Khan, AIR (27) 1940 Pat 45: "Where the mortgagee tarings a suit omitting a necessary party and obtained a decree and purchases the mortgaged property in execution thereof the mortgage decree and the execution sale are of no effect as against the person who was not impleaded in the mortgage suit, and he is entitled to treat the entire mortgage as subsisting and can therefore ask for its redemption in its entirety. The position is quite different where the equity of redemption of some of the mortgagors has been effectively sold and purchased by the mortgagee himself, at a private sale or in execution of a money decree." The facts in that case were that the mortgagee at a private sale had purchased a share in the equity of redemption and had thus severed the integrity of the mortgage. On the facts, therefore, it was rightly held in that case that the plaintiff was entitled to redeem in part. The passage relied on by Mr. Ghosh is merely an obiter dictum. It lays down the proposition very broadly and is stated to be based on the cases of Mirza Yadalii Beg V/s. Tukaram, 47 Ind App 207 and Pramatha Nath V/s. Ramkishen Singh, 8 Pat L T 81. I have given above the facts of the former case, and I find nothing in it to support the above proposition. Nor does the decision in Pramaitha Nath Mitters case support the broad proposition laid down. In that case a share of three annas and odd was mortgaged by three brothers, two of whom subsequently sold two annas out of their shares of two annas and odd to the plaintiffs and some other persons. Then Defendant No. 1 sued on the mortgage and got a decree for sale, without impleading the plaintiffs. Defendants Nos. In that case a share of three annas and odd was mortgaged by three brothers, two of whom subsequently sold two annas out of their shares of two annas and odd to the plaintiffs and some other persons. Then Defendant No. 1 sued on the mortgage and got a decree for sale, without impleading the plaintiffs. Defendants Nos. 2 and 3 purchased the mortgaged property in execution of the mortgage decree and transferred the property to defendants Nos. 4 and 5. Then the plaintiffs sued to redeem the whole mortgage. Adami, J. Macpherson, J. agreeing, held that they were entitled to redeem the whole mortgage "subject, of course, to the right of any others, who have an equity of redemption to exercise that right". The question, therefore, was one of working out the equities between the parties, and their Lordships solved the problem by means of the following complicated direction: "In my opinion the appeal should be dismissed with costs, and, in order to safeguard the interest of all the co-owners of the right of redemption, the case should be sent through the lower appellate Court to the trial Court in order that the amount due upon the mortgage with interest, may be passed directing the plaintiff to deposit that amount in Court within three months of its ascertainment. If the plaintiffs fail to deposit the amount their suit will have to be dismissed. On such deposit being made, a final decree for redemption will be passed, but possession, will not be delivered to the plaintiffs until after the expiry of one week from the date of such decree. If defendants Nos. 4 and 5 consent within that week that their proportion of the total mortgage-money due in respect of their 1 anna 2 pies and odd share be repaid, and also pay up the costs of the suit and appeals decreed against them and their proportion of any other costs which would be a charge under S. 95, or consent that the same be paid to plaintiffs out of the total mortgage-money, possession of the share of those defendants will not be delivered to plaintiffs. If at any time within that week or afterwards-the owners of the two anna share, other than, the plaintiffs, pay to the plaintiff their respective proportion of the total mortgage money, and of the charge under Section 95 other than the amount recovered as costs from defendants No.s. 4 and 5, their respective shares shall be delivered to them, and the plaintiffs shall either not come into possession of them or shall forthwith make over possession of them, as the case may be." His Lordship Adami, J., in Mt. Azizunissa V/s. Komal Singh, 9 Pat 930, agreed to a simpler method of working out the equities, namely that of allowing-only partial redemption, a method which as explained by the Judicial Committee in Shan Ram Chand V/s. Parbhu Dayal, 47 Cal W N 1 (P C) avoid circuity of action. 21 For the reasons stated above, I consider, that the Courts below have rightly held that, supposing the plaintiffs are entitled to redeem at all, they can only redeem in part. 22. In the result, I would set aside the order of the Subordinate Judge and direct that the appeal be reheard in the light of the above remarks. The appeal to this Court having failed as regards the prayer for total redemption, I would direct that the contesting defendants, defendants Nos. 8 to 13, get the costs of this Court proportional to their success in this respect. Shearer, J. 23 The lower appellate Court- will have to consider whether it is at all open to the defendants to raise a plea of this kind. A simple mortgage is a mere contract of loan and, when the mortgagors have conveyed the equity of redemption to a third person and that third per son seeks to redeem the mortgage, is it open to the mortgagee to resist his suit on the ground that there is a flaw or defect in his conveyance and one of the mortgagors on whose behalf the others purported to act might be entitled to avoid the conveyance in whole or in part? However, I agree with my learned brother that there must be a remand as this point will not arise for consideration, unless and until it is decided that the arpannama was acted upon and that is a question of fact which the lower appellate Court ought to have determined. However, I agree with my learned brother that there must be a remand as this point will not arise for consideration, unless and until it is decided that the arpannama was acted upon and that is a question of fact which the lower appellate Court ought to have determined. I also agree that if redemp tion is to be allowed it must be partial redemption. As to costs I also agree.