Judgment Raj Kishore Prasad, J. 1. This is an appeal by the defendant from the concurring decision of Mr. Kanhaiya Singh, then a Subordinate Judge at Patna, affirming the decision of the first Court, decreeing the plaintiffs suit for redemption. 2. On 6th June, 1932, Bhagwan Das Mahton, the father of the plaintiff, for self and as guardian for the plaintiff and his deceased brother Dhurkheli Mahton, along with his mother-in-law, Mst. Bipti, executed a baibulwafa deed in respect of plot 680, appertaining to khata 339, having an area of .71 acres, in village Sandalpur, in favour of Bhagera Ram Mahto, the deceased husband of the defendant-appellant, for a term of five years from 1340 to 1344 Fasli. 3. The case of the plaintiff is that the transaction between the parties is a mortgage by conditional sale; and, since the mortgage has not been foreclosed, he is entitled to redeem it on payment of the money mentioned in the bond and recover possession of the mortgaged property. The defendant refused to accept the money, and, therefore, he deposited it under Section 83 of the Transfer of Property Act, but, in spite of the service of the notice thereof, the defendant did not give up possession over the suit lands, and, as such, the plaintiff was obliged to bring the suit for redemption, out of which the present appeal arises. 4. The suit was contested by the defendant. Her defence was that there was no relationship of mortgagor and mortgagee between the parties, and, as such, the plaintiff had no right to redeem. Her case was that the transaction between the parties was not a mortgage by conditional sale, but an absolute sale with a reservation of the right of purchase by the vendor. She, therefore, contended that since the right reserved by the deed was not exercised by the vendor within the time" limited by the agreement, the right of reconveyance ceased to have any effect, and as such, the suit was misconceived. The defendant further contended that the suit was not maintainable because of non-joinder of the heirs of Mst. Bipti, the co-mortgagor. 5. The Courts below concurrently held that the transaction between the parties was a mortgage by conditional sale, and, that the non-joinder of the heirs of Mst. Bipti did not entail the dismissal of the suit. The defendant further contended that the suit was not maintainable because of non-joinder of the heirs of Mst. Bipti, the co-mortgagor. 5. The Courts below concurrently held that the transaction between the parties was a mortgage by conditional sale, and, that the non-joinder of the heirs of Mst. Bipti did not entail the dismissal of the suit. On these two findings, the first Court decreed the plaintiffs suit, which was affirmed, on appeal by the defendant, by the Court of appeal below. 6. Mr. Rameshwar Prasad Sinha, in support of the appeal, reagitated the above mentioned two objections, which were taken by the defendant in the Courts below. 7. The first question for our consideration, therefore, is whether the baibulwafa deed dated 6th June, 1932, which is the basis of the suit, is a mortgage by conditional sale, or a conditional sale with the reservation of a right to repurchase. 8. The above deed is Ext. B, and, it has been, officially translated in this Court. This deed has been called baibulwafa deed, which has been translated as "conditional sale". The material terms of the document, omitting the unnecessary portions of it, are in these terms : "When at the end of 30th Jeth 1344 Fs. the term of the conditional sale will expire, I (sic) the executant and the heirs and representatives of us (sic) the executants shall repay the consideration money, amounting to Rs. 1320.00 (one thousand three hundred and twenty) and will give up his possession and occupation of the property covered by this deed of conditional sale and (we) shall enter into sir possession thereof. If within the due date of payment, we the executants like to pay (the said amount) at the end of 20th Jeth (of any year), Bhagera Ram aforesaid will have no objection to accept the money spent over spade work in the field if spade work be found to have been done in the field, besides the consideration money, and remove (his) possession and occupation therefrom. After (the expiry of) 30th Jeth, 1344 Fs., Bhagera Ram Gope aforesaid or any of his heirs and representatives neither has nor shall have any right to accept the consideration money rather he will continue to be in possession and occupation of the property covered by this deed of conditional sale as absolute proprietor and appropriate the produce and income thereof. After the expiry of the said due date of payment of this conditional sale, Babu Bhagera Ram and his heirs and representatives are and shall be competent to take necessary steps and get foreclosure effected by a competent Court in respect of this deed. In lieu of the said consideration money, the property covered by this deed of conditional sale will stand mortgaged, hypothecated, liable and pledged." 9. The material vernacular words have been quoted by the learned Subordinate Judge which are : "Bakarrawai lajmi baibat and shaibat adalat majaj se kara lewenge". 10. The learned Subordinate Judge has mentioned that the word "baibat", according to Wilsons Glossory, means both a mortgage by conditional sale as also an absolute sale with a right to repurchase, and, therefore, he says, the mention of the word "baibulwafa" in the document, which is susceptible to both the meanings, is not conclusive of the matter, and, consequently the determination of the question, whether the transaction amounts to a mortgage by conditional sale or an out and out sale, will entirely depend on the terms and conditions of the document itself. The reasons, given by the learned Subordinate Judge for holding that the transaction was a mortgage by conditional sale, are as follows : "The right given to the executants to repay the amount loaned to them even before the expiry of the stipulated period, and imposition of the conditions upon Bhagera Ram Gope to have his right finally determined and document foreclosed by an appropriate proceeding in a Court, which is nothing but a reproduction of the right of mortgagee as embodied in Sec. 67 of the T. P. Act and the reservations of a right in him in respect of the prior mortgages redeemed out of the consideration of the bond in suit and emphasis upon the word mortgage in the concluding portion of the document unmistakably point to the transaction being a mortgage by conditional sale. The learned Advocate for the appellant laid empahsis upon the condition which purported to debar absolutely the executants from redemption on the expiry of 30th Jeth 1344 Fasli and to confer upon the transferee absolute right. Words and phrases used in the bond which indicated sale will not render the document an absolute sale for the simple reason that in all cases of mortgage by conditional sale, there is an ostensible sale of the property. Words and phrases used in the bond which indicated sale will not render the document an absolute sale for the simple reason that in all cases of mortgage by conditional sale, there is an ostensible sale of the property. As will appear from the definition of mortgage by conditional sale in Section 58 (c) of the T. P. Act in all cases an ostensible sale of the mortgaged property by the mortgagor on condition that on default of payment of the mortgage money on a certain date the sale shall become absolute will amount to mortgage by conditional sale. Sale is implied in all such cases. Accordingly, the condition in the bond that in the event of failure on the part of the executants to pay the mortgage money by the due date the sale shall become absolute is not at all inconsistent with a mortgage by conditional sale. On a consideration of the document, the only conclusion that I come to is that the transaction evidenced by it is a mortgage by conditional sale and consequently the right of the mortgagor to redeem the property remains unaffected by the expiry of the term, as held by the learned Munsif." 11. I am in complete agreement with the above reasoning of the learned Subordinate Judge. 12. The document ends with a recital that "in lieu of the said consideration money, the property covered by this deed of conditional sale will stand mortgaged, hypothecated, liable and pledged." 13. In my opinion, on reading the document as a whole, and, taking into consideration all the terms and conditions mentioned therein, there is no doubt that the transaction is in the nature of a conditional mortgage, and, that the parties intended to confer by this deed upon themselves the relationship of a mortgagor and a mortgagee. 14. I have, therefore, no hesitation in holding that the transaction between the parties was a mortgage by conditional sale, as alleged by the plaintiff, and not an absolute sale with the reservation of a right of repurchase by the vendor, as alleged by the defendant. I, accordingly, affirm the decision of the Courts below on the construction of the document in question. 15. As regards the second question that the non-joinder of the heirs of Mst. Bipti, who was a co-mortgagor, is fatal to the suit. Mr. I, accordingly, affirm the decision of the Courts below on the construction of the document in question. 15. As regards the second question that the non-joinder of the heirs of Mst. Bipti, who was a co-mortgagor, is fatal to the suit. Mr. Rameshwar Prasad Sinha has relied on a number of decisions of the different High Courts including of this Court in support of his contention that non-joinder of a co-mortgagor or his or her heirs is fatal to the suit, and, such a suit, in the absence of a co-mortgagor or his or her heirs, is not maintainable. 16. The Patna cases relied upon are Girwar Narain Mahton V/s. Mt. Makbulunnissa, 1 Pat LJ 468: (AIR 1916 Pat 310) (A); Sital Prasad Ray V/s. Asho Singh, AIR 1922 Pat 651 (B); Sri Kanta Prasad V/s. Jag Sah, AIR 1925 Pat 57 (C) and Ram Charitar Sao v. Bawan Prasad Singh, AIR 1946 Pat 225 (D). The decision of the Bombay High Court relied upon is Naro Hari V/s. Vithalbhat, ILR 10 Bom 648 (E). He has also relied upon two decisions of the Allahabad High Court in Ahamad Husain V/s. Muhammad Qasim Khan, AIR 1926 All 46 (F), and, Ghura Koer V/s. Bishun Ram, AIR 1929 All 814 (G). 17. Mr. Nandlal Untwalia, on the part of the respondent, however, contended that such a non-joinder of the mortgagor, or his or her heirs was not fatal to a suit brought by a co-mortgagor for redemption, in that, the only legal effect of non-joinder would be that the co-mortgagor, or his or her heirs, who have not been joined as parties either as plaintiffs or defendants, will not be bound by the decree passed in the suit of the other co-mortgagor. In support of his contention, he has relied on Narain Pandey V/s. Surajbhan Lal, AIR 1937 Pat 414 (H) ; AIR 1946 Pat 225 (D); ILR 2 Pat 175: (AIR 1922 Pat 651) (B); Siaram Singh V/s. Jugutdeo Singh, AIR 1952 Pat 161 (I); Mirza Yadalli Beg V/s. Tukaram, AIR 1921 PC 125 : 47 Ind App 207 (J) ; Jai Narain V/s. Surajmull, AIR 1949 FC 211 (K). Ho has also, in this connection, relied on Ss. 60 and 95 of the Transfer of Property Act, and, Order 34, Rule 1 and Order 1, Rule 9 of the Code of Civil Procedure. 18. Ho has also, in this connection, relied on Ss. 60 and 95 of the Transfer of Property Act, and, Order 34, Rule 1 and Order 1, Rule 9 of the Code of Civil Procedure. 18. The Court of appeal below has relied on AIR 1925 Pat 57 (C) and Rai Satyadeva Narayan Sinha V/s. Tribeni Prasad, 161 Ind Cas 579: (AIR 1936 Pat 153) (L), for holding that non-joinder of the heirs of Mst. Bipti, the co-mortgagor, was not fatal to the suit. 19. It is not necessary to examine each of the cases cited at the Bar in detail, because as far as this Court is concerned, the settled view is what was laid down in ILR 2 Pat 175: (AIR 1922 Pat 651) (B). The law laid down in this case still holds the field, and, has consistently been followed by this Court up to this day. The earlier decision of this Court in 1 Pat LJ 468 : (AIR 1916 Pat 310) (A), relied upon strongly by Mr. Sinha, has been considered in this case as well as in all the subsequent cases, and, it has not been followed. 20. It is, therefore, well settled by several decisions of this Court that Order 1, Rule 9 of the Code of Civil Procedure, is not subordinate to Order 34, Rule 1 of the Code of Civil Procedure, The combined effect of Order 1, Rule 9 and Order 34, Rule 1 in so far as mortgages are concerned, is, that all persons whose rights and interests may be adjudicated upon and determined in the suit ought to be added as parties, but that failure to add one or more such persons should not have the effect of defeating the suit, if the Court, in their absence, can deal with the matters in controversy so far as regards the rights and interests of the parties actually before it. If no decree can be passed without affecting the rights of absent parties the suit cannot proceed in their absence and should be dismissed. If, however, the rights of the parties actually before it can be determined in the suit leaving the rights and interests of others unaffected, then, even though the other parties might properly have been added, the Court should determine the matters in controversy between the parties actually present. If, however, the rights of the parties actually before it can be determined in the suit leaving the rights and interests of others unaffected, then, even though the other parties might properly have been added, the Court should determine the matters in controversy between the parties actually present. In order to decide whether a suit can proceed in the absence of certain proper parties, two tests have been laid down : (1) Can the rights of the parties on the record be fully determined in their absence? and, (2) Can that determination be made necessarily affecting the rights of those absent? : ILR 2 Pat 175: (AIR 1922 Pat 651) (B); AIR 1946 Pat 225 (D) and AIR 1952 Pat 161 (I). In the last two cases, all the relevant earlier decisions on the point have been considered, and, on a review of those decisions, the above proposition of law has been laid down. 21. The case of AIR 1937 Pat 414 (H), was a case of a co-mortgagor and is on all fours with the present case. In that case, some of the persons who were interested in the equity of redemption had not been made parties. Fazl Ali, J., as he then was, upheld the decision of the Courts below rejecting the objection of the defendants that omission to im-plead some of the persons interested in the right of redemption was fatal to the suit. His Lordship observed: "Thus the rule laid down in Order 34, Rule 1, that all the persons interested in the right of redemption shall be joined as parties is merely a rule of procedure which has been enacted with the object of avoiding multiplicity of suits. Assuming therefore that some of the proprietors who were also interested in the equity of redemption have not been made parties, the point which is to be decided here is whether the presence of these persons is essential to enable the Court to adjudicate upon the rights and interests of those actually before it. Assuming therefore that some of the proprietors who were also interested in the equity of redemption have not been made parties, the point which is to be decided here is whether the presence of these persons is essential to enable the Court to adjudicate upon the rights and interests of those actually before it. The most important question which arose in this case was whether the mortgaged property could be redeemed or not; and, if one of the co-mortgagors is entitled to redeem it, I do not think that on the facts of this particular case, the omission to implead some of the proprietors (assuming that there was in fact such an omission) can affect the decree passed by the Court below." 22. It was held by the Privy Council in AIR 1921 PC 125: 47 Ind App 207 (J), which was also a case of a co-mortgagor, that one of the several mortgagors can redeem the entire mortgage. It was pointed out by Viscount Haldane, who delivered the opinion of the Board that: "The Judge in the original Court thought that the decisions of the Courts in India had established that one of several mortgagors cannot redeem more than his share unless the owners of the other shares consent or do not object. Subject to proper safeguarding of the rights to redeem, which these owners may possess, their Lordships are of opinion that this is not so in India any more than in England." 23. One of the several mortgagors, therefore, is entitled to redeem the entire mortgage. As was pointed out by the Privy Council, it is not the law in India that one of the several mortgagors cannot redeem more than his own share unless the owners of the other shares consent or make no objection. Subject to proper safeguarding of the right to redeem, which these owners may possess, one of several mortgagors can redeem the entire mortgage. Subject to proper safeguarding of the right to redeem, which these owners may possess, one of several mortgagors can redeem the entire mortgage. Section 60 of the Transfer of Property Act which gives right to redeem the mortgage only provides that 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. 24. Now, it is, therefore, settled beyond controversy that any one of the co-mortgagors can redeem the entire mortgage; and, therefore, if one of the co-mortgagors is entitled to redeem the entire mortgage, the omission to implead some of the persons, who are also interested in the equity of redemption cannot affeet the suit for redemption brought by a co-mortgagor. 25. In 161 Ind Cas 579: (AIR 1936 Pat 153) (L), a Bench of this Court held that it is now a unanimous opinion, that failure to make a person interested in the equity of redemption a party to the mortgage suit is not fatal, as the Court may exercise its powers of joining parties under Order 1, Rule 10, Civil Procedure Code, if it so likes. 26. For the reasons given above and on a consideration of the several decisions of this Court, I have no hesitation in holding that nonjoinder of the heirs of Mst. Bipti, who was a co-mortgagor, was not fatal to the suit of the plaintiff, and, therefore, the decision of the Court of appeal below is correct, and, is, accordingly affirmed, 27. In the result, I hold that there is no merit in the appeal, which is, accordingly, dismissed with costs. Ramaswami, J. 28 I agree.