B. J. HEGDE, J. ( 1 ) THIS is a second appeal filed by the plaintiff, defendant 2 and defendant 3. The suit of the plaintiff was for partition of his 1/4 share in the plaint properties and mesne profits. One marcel had four issues. The plaintiff and defendant 1 are his sons whereas defendants 2 and 3 are his daughters. They are christians and it is not disputed that the wife of marcel is no more. There are six items in the plaint schedule. The first item was owned by marcel and his brothers and the plaintiff and defendants 1 to 3 have only 1/4 shares over it. 1/16 shares has been alloted over this item to the plaintiff and defendants 1 to 3 each and there is no dispute in this regard. Defendant 1 has claimed item no. 6, as his own chalageni holding, over which occupancy right has been conferred upon him. Both the courts have accepted this contention and this is not challenged in this second appeal. With regard to item no. 4, there is serious dispute. Defendant 1 claims it as his own whereas the plaintiff and defendants 2 and 3 claim 1/4 share each over that item. The first appellate court has held that item no. 1 does not belong to defendant 1 exclusively. ( 2 ) THE trial court held that the plaintiff and defendants 1 to 3 are entitledto 1/4 share each over item nos. 2,3 and 5. But, in appeal, the learned civil judge modified this order. He held that defendant 1 is entitled to the shares of defendants 2 and 3 in addition to his own in view of relinquishment deeds executed by defendants 2 and 3 as per exhibits d-28 and d-29. ( 3 ) THE appellants are challenging the allotment of defendant 2 and defendant 3 s share to defendant 1 in this appeal whereas defendant 1, in his cross-objections, has challenged the finding of the first appellate court holding that item no. 4 is a divisible property. ( 4 ) HENCE, the points disputed in this second appeal are: (I) whether by virtue of exhibits d-28 and d-29, defendants 2 and 3 have relinquished their rights over the plaint properties in favour of defendant 1? And (II) whether item no. 4 is a divisible properly? 4 is a divisible property. ( 4 ) HENCE, the points disputed in this second appeal are: (I) whether by virtue of exhibits d-28 and d-29, defendants 2 and 3 have relinquished their rights over the plaint properties in favour of defendant 1? And (II) whether item no. 4 is a divisible properly? ( 5 ) DEFENDANT 1 contends that defendants 2 and 3 have relinquished the irrights over the plaint properties. He relies on exhibits d-28 and d-29 in support of his contention. Defendants 2 and 3 have denied the very execution of exhibits d-28 and d-29 and further contend that exhibits d-28 and d-29 do not convey any right over the plaint properties to any one. Though the execution of exhibits d-28 and d-29 is denied, defendant 1 has proved the same by examining the attestors and defendants 2 and 3 have not entered into the box to deny the same. It is, therefore, frankly conceded by the learned counsel for the appellants that exhibits d-28 and d-29 can be taken as having been proved. But, he strongly urges that exhibits d-28 and d-29 cannot have any effect of conveying any right over the plaint immovable properties for want of registration under section 17 of the registration act. ( 6 ) EXHIBIT d-28 reads thus: ( 7 ) EXHIBIT d-29 reads thus: ( 8 ) IT is contended on behalf of the respondents that exhibits d-28 andd-29 are family settlements and they do not require registration. Further, it is contended that they purport to record past events and the rights over the immovable property have not been relinquished under those documents on the dates of their execution. If really, those exhibits d-28 and d-29 are memoranda prepared to record the family arrangements, that had already taken place, the learned counsel for the respondents would be justified in contending that they do not require registration in view of the decision in the case of kale v deputy director of consolidation, AIR 1976 SC 807 , wherein it is stated thus:"10. Xxx xxx xxx. (4) it is well-settled that registration would be necessary only if the terms of the family arrangement are reduced into writing. Xxx xxx xxx. (4) it is well-settled that registration would be necessary only if the terms of the family arrangement are reduced into writing. Here also, a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been made either for the purpose of the record or for information of the court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immovable properties and therefore does not fall within the mischief of section 17 (2) (sic) [section 17 (1) (b)?] Of the registration act and is, therefore, not compulsorily registrable;" ( 9 ) NOW, let me examine whether exhibits d-28 and d-29 are only records of past transactions. The recitals in both the documents are more or less similar. In the first part, the executants acknowledged that defendant 1 had spent considerable amount at the time of their marriage. In the second part of both the documents, it is stated clearly that the executant will have no right over the properties thereafter. It is this clause that is relied upon by defendant 1 to contend that defendants 2 and 3 have relinquished their rights over the plaint properties. If they had stated that they had already relinquished their rights over the plaint properties in exhibits d-28 and d- 29, it could be classified as a memorandum of a previous arrangement that had already taken place. But, in both the documents it is stated clearly that only they do not have any right over the properties. This would clearly indicate that they had relinquished their rights over the immovable properties on the dates of exhibits d-28 and d-29. The dictionary meaning of the word " is "hereafter". I am, therefore, of the view that nothing has been conveyed under exhibits d-28 and d-29. Since the said documents have not been registered, the first appellate court was not justified in allotting the shares of defendants 2 and 3 to defendant 1 in addition to his own. Hence, the contention of defendant 1 that he is entitled to the shares of defendants 2 and 3 in addition to his own share cannot be accepted. Since the said documents have not been registered, the first appellate court was not justified in allotting the shares of defendants 2 and 3 to defendant 1 in addition to his own. Hence, the contention of defendant 1 that he is entitled to the shares of defendants 2 and 3 in addition to his own share cannot be accepted. ( 10 ) IT is not in dispute that one paul louis had executed a simple mortgage over plaint item no. Iv in favour of marcel, father of the plaintiff and defendants 1 to 3, on 12-6-1943. Later, louis executed a usufructuary mortgage over the same property on 12-7-1943 under exhibit p. 1, under which the then existing simple mortgage had been discharged. The plaintiff contends that defendant 1 had purchased the equity of redemption from the mortgagor under the registered sale deed dated 22-4-1944 for a sum of Rs. 1,000/- and that the consideration of this sale was the entire principle sum of Rs. 650/- reserved under the aforesaid mortgage, arrears of rent and additional interest due and out of the income of the estate inherited by the parties from their father. The plaintiff and defendants 2 and 3 contend that the sale in favour of defendant 1 is on behalf of All of them and it is taken in his name benami for the benefit of the plaintiff and defendants 1 to 3. This contention has been disputed by defendant 1. Sri padubidri raghavendra rao, learned counsel for the respondents, in my opinion rightly, contends that the plaintiff cannot claim any share over the property purchased by defendant 1 under exhibit p. 2, sale deed dated 22-4-1944. In m. n. aryamurthy v m. l. subbaraya setty, AIR 1972 SC 1279 , it has been laid down that if one of the members remains in possession of the entire properties of the family even after severance in status, there is no presumption that the property, which is acquired by him after severance of the status, must be regarded as acquired for the family. Where rents and profits are received by the member in possession, he would be liable to account for the same. But, the funds in the hands of that member do not become impressed with any trust in favour of the other members. Where rents and profits are received by the member in possession, he would be liable to account for the same. But, the funds in the hands of that member do not become impressed with any trust in favour of the other members. Therefore, if such a member acquired some property with the funds in his possession, the other members could claim no share in that property. In the case before us, the parties are christians and the question of severance of status would not arise and they are tenants in common. So, neither the plaintiff nor defendants 2 and 3 can claim share over the rights purchased by defendant 1. Further, it is not open to the plaintiff to contend that item no. 4 was purchased benami in the name of defendant 1 on behalf of the other heirs of marcel. Section 4 of the benami transactions (prohibition) act (45 of 1988) prohibits taking up such a plea and as laid down in the case of mithilesh kumari v prem behari khare, AIR 1989 SC 1247 , this provision will apply to a case pending when the act came into force. So, the contention of the plaintiff that he is entitled for 1/4 share of ownership right over item no. 4 cannot be accepted. ( 11 ) BUT, Sri vishweshwara, learned counsel for the appellants, contendsthat the materials placed before the court disclose that the usufructuary mortgage executed still subsists at least insofar as the mortgagee's rights inherited by the plaintiff, defendant 2 and defendant 3 are concerned. Defendant 1 has admitted in his written statement in paragraph 6 (d) that paul louis had executed usufructuary mortgage on 12-7-1943. Upon the death of marcel, the plaintiff and defendants 1 to 3 became co-mortgagees by virtue of section 59-a of the transfer of property act. On 22-4-1944 i. e. , on the date of exhibit p. 2 sale in favour of defendant 1, there were four co-mortgagees. Exhibit p. 2 sale deed purports to purchase the ownership of item no. 4 which had been subjected to a mortgage. It also purports to put an end to the mortgage. Defendant 1 undoubtedly has acquired title or right of redemption over plaint item no. Iv by virtue of the document dated 22-4-1944, executed by paul louis who was the mortgagor. 4 which had been subjected to a mortgage. It also purports to put an end to the mortgage. Defendant 1 undoubtedly has acquired title or right of redemption over plaint item no. Iv by virtue of the document dated 22-4-1944, executed by paul louis who was the mortgagor. But, the question is whether the entire mortgage has been put an end to and whether defendant 1 alone was entitled to put an end to the mortgage without the joinder of the plaintiff and defendants 2 and 3, who are the other co-mortgagees. ( 12 ) IT is contended on behalf of the respondents by Sri padubidri raghavendra rao that when a mortgagee purchases a mortgaged property, the mortgage comes to an end relying on a decision in the case of soni lalji jetha v soni kalidas deychand, AIR 1967 SC 958. This is a case of a single mortgagee purchasing the mortgaged property. In such a case, the mortgage comes to an end. In the instant case before us, there are four mortgagees. Only defendant 1 has purported to discharge the mortgage under exhibit p. 2. Could he have done it? Sri padubidri raghavedra rao, relying on a decision in the case of fallesatha banu v muhammad rashidhuddin quaraishi, AIR 1934 Madras 656, contends that the purchase of equity of redemption by one of the co-mortgagees puts an end to the mortgage. It is true that a division bench of Madras High Court has held so, relying on an earlier decision of the same High Court in the case of barber maran v ramanna goundan, (1897)20 mad. 461. In the said decision their lordships have observed that the calcutta High Court had taken a different view on that question and the learned commentators like pollock and mulla have doubted the correctness of the Madras view. With respect, I disagree with the view taken by the Madras high court. ( 13 ) NO decision of the Supreme Court or of this court is placed before methrowing light on this point. Sri vishweshwara, learned counsel for the appellants, says that the view of the Madras High Court is not sound and if accepted, it will lead to serious anomalies. ( 13 ) NO decision of the Supreme Court or of this court is placed before methrowing light on this point. Sri vishweshwara, learned counsel for the appellants, says that the view of the Madras High Court is not sound and if accepted, it will lead to serious anomalies. According to him, if two persons advance a loan on the security of a specific immovable property and if one of the mortgagee accepts the mortgage amount and releases the security, then the other mortgagee will be deprived of the security. The argument of Sri vishweshwara appears to be correct. It is no doubt true that defendant 1 has purchased the ownership over suit item no. Iv. But, what authority defendant 1 had to put an end to the mortgagee's right which was legally held by the plaintiff and defendants 2 and 3?. It appears, the bombay, Allahabad and calcutta high courts have differed from the view taken by the Madras high court. ( 14 ) IT may be useful in this connection to refer to the follow in gobservations made in mulla's transfer of property act"once the mortgage money has been paid, the mortgage comes to an end, though the statutory right to recover possession survives. Payment. payment may be made not only to the mortgagee but also to an authorised agent of the mortgagee, e. g. , the mortgagee's solicitor, but a payment to an agent who disclaims authority is made at the payer's risk. When there are several mortgagees there is a conflict of decisions as to whether payment to one is valid. In wallace v kelsall, (1840)7 m and w 264, payment to one of several joint creditors was held to operate as a discharge; but in steeds v steeds, (1889) 22 q. b. d. 537, wills, j. , observed that though this may be the rule in law yet in equity the general rule with regard to money lent by two persons to a third is that they will prima facie be regarded as tenants in common both of the debt and of the security held for it and cited a passage from the judgment of lord alvanley, m. r. , in morley v bird, (1798)3 ves. 681, that "though they take a joint security, each means to lend his own money and to take back his own. 681, that "though they take a joint security, each means to lend his own money and to take back his own. " again, the authority of wallace v kelsall (supra) has been shaken by the decision in powell v brodhurst, (1901)2 ch. 160 that payment to one of two joint mortgagees in the other's lifetime, though a good discharge of the debt at law, only discharges the security to the extent of the payee's beneficial interest, even though the payee ultimately becomes the survivor of the joint account. The Madras high court, following wallace v kelsall (supra) has held that payment to one of several mortgagees is a valid discharge [barber maran v ramana, (1897)20 mad. 461], this was doubted in several Madras cases and was not followed in Bombay and calcutta. In annapurnamma v akkayya, (1913)36 mad. 544 : 191. c. 12, a full bench of the Madras High Court held that one of several payees of a negotiable instrument can give a valid discharge of the entire debt but white, c. j. , in a dissenting judgment was of opinion that the equitable presumption of a tenancy in common should prevail. This opinion has since been followed, and it is unquestionably correct, for the security being in favour of several mortgagees cannot be retransferred by any one of them and therefore the mortgage cannot be discharged except by payment to all. In an Allahabad case, [janhari singh v ganga, (1919)41 all. 631:51 i. c. 107] a full discharge given by one of two joint mortgagees was held to operate in respect of his share only. The judicial committee in shrinivasdas bavri v meherbai, (1917)41 bom. 300 : 44 la. 36 : 39 i. c 627, held that one of two mortgagees was not bound by a recital of a release given by the other and this decision in effect overrules barber maran v ramanna (supra ). But even after this decision, the Madras High Court has held that a purchase by one of several co-mortgagees of the equity of redemption has the effect of extinguishing the mortgage, and that the appropriation of the income by a co-mortgagee in possession was a valid discharge of the mortgagee. But even after this decision, the Madras High Court has held that a purchase by one of several co-mortgagees of the equity of redemption has the effect of extinguishing the mortgage, and that the appropriation of the income by a co-mortgagee in possession was a valid discharge of the mortgagee. The Bombay High Court has held that in the case of payment to the heirs of a mortgagee, payment must be made to All unless they have constituted one of their number karta or manager;. . . . . . . . . . . . . . . . " ( 15 ) IT is also pointed out by the learned counsel for the respondents that there is no specific provision under the transfer of property act which disables a co-mortgagee to discharge the entire mortgage on behalf of other co-mortgagees. If really the legislature wanted to confer authority to one of the co-mortgagees to discharge the entire mortgage, a clear provision would have been made. ( 16 ) IT is next contended by the learned counsel for the respondents that the appellants have not pleaded that the usufructuary mortgagee rights of the plaintiff and defendants 2 and 3 subsists even after exhibit p. 2, dated 22-4-1944 and that a new case is putforth by the appellants during the course of the arguments. It is true that the plaintiff and defendants 2 and 3 have only sought 1/4 right each over item no. Iv on the basis that the heirs of marcel have ownership over it. But it has been stated in the plaint that the property was subjected to usufructuary mortgage in favour of marcel and this was admitted by defendant 1. In the plaint, it is nowhere stated that that mortgage does not subsist. Theugh their claim that they are the co-owners of item no. Iv has been rejectet, it is now established that their co-mortgagee's right over item no. Iv has remained undisturbed despite exhibit p. 2 sale deed dated 22-4-1944. The appellants have not pleaded nor relied on any additional facts. If, from the facts placed before the court, the court comes to the conclusion that the parties are entitled to a lesser right, that right cannot be denied to them. Iv has remained undisturbed despite exhibit p. 2 sale deed dated 22-4-1944. The appellants have not pleaded nor relied on any additional facts. If, from the facts placed before the court, the court comes to the conclusion that the parties are entitled to a lesser right, that right cannot be denied to them. In the instant case, it has been held that the plaintiff and defendants 2 and 3 are not entitled to any share as full owners of item no. Iv. But, it is clear that their usufructuary mortgagee's right over item no. Iv remains in tact. This is not a new case pleaded nor based on facts now produced. So. The plaintiff and defendants 2 and 3 are entitled to 1/4 share each in their capacity as usufructuary co-mortgagees over item no. Iv of the plaint properties. ( 17 ) IN the result, the judgments and decrees of both the courts below aremodified and the suit is decreed as follows: (A) the plaintiff and defendants 1 to 3 each are entitled to 1/16 share over item no. I. (b) the plaintiff and defendants 1 to 3 are entitled to 1/4 share each over item nos. In iii and V. (c) item no. Vi is not divisible as it belongs to defendant 1. (d) the plaintiff and defendants 2 and 3 each are entitled to 1/4 usufructuary mortgagee's right over item no. Iv. (e) there shall be an enquiry relating to mesne profits from the date of suit till the delivery of possession under order 20, rule 12 (c), cpc and (f) no costs throughout. Let there be a preliminary decree as aforesaid. The appeal and cross-objections are disposed of accordingly. --- *** --- .