JUDGMENT Sulaiman, C.J.
1. The facts are fully stated in the judgment of my learned brother. So far _as the question whether after the integrity of the mortgage has been broken a co-mortgagor can, as of right, claim redemption of his share only, is concerned, I have no doubt that he cannot claim more. He is not entitled to take possession of the share of the other co-mortgagors against the will of the mortgagee. When the mortgagee has acquired a part of the mortgaged property, he is on the same footing as the other co-mortgagors. He cannot be compelled to hand over possession of the shares which do not belong to the plaintiffs. I do not think that any of the cases referred to by my learned brother is an authority for the proposition that if the mortgagee submits to the redemption of the whole property on payment of the whole amount due, the taking over possession of the other co-mortgagors' shares is unlawful and the redeeming co-mortgagor enters into adverse possession of those shares immediately.
2. In Kuray Mal v. Puran Mal [1878] 2 All 565. Spankie, J., merely held that the representative of a mortgagor of a particular share is entitled to redeem his own particular share in the joint mort-gage of which the joint character has been broken up,but-he cannot redeem, against the will of the mortgagee, the share of another share-holder. Oldfield. J., also emphasised that when the joint character of the mortgage has been broken the right to redeem the whole mortgage resting on the joint character of the mortgage ceases, and he cannot redeem more than his share against the will of the mortgagee. In the case of Fakir Baksh v. Sadat Ali [1885] 7 All 376, the mortgage debt had been satisfied from the usufruct and therefore the mortgage no longer existed. Gobardhan v. Sujan [1894] 16 All 254 was also a case where the amount of the mortgage had been satisfied out of the usufruct, and, as the learned Judges put it, the mortgage had become extinct and the parties were relegated to the position in which they were before the mortgage. They accordingly held that one of the mortgagors could only claim from the mortgagee his own individual share, as he had no right to take possession of the share of the others. But the learned Judges also observed that there can be no doubt that when one of several mortgagors redeems the mortgage by payment of the mortgage money and takes possession of the mortgage property, he steps into the shoes of the mortgagee as regards the shares of his co-mortgagors, and his possession over those shares can only be regarded as the possession of the mortgagee. In Kalian Khan v. Mardan Khan [1906] 28 All 155 Banerji, J., relied on Kuray Mal's case [1878] 2 All 565, and quoted the obsarvation that the person interested in a part of the mortgaged property after the joint character had been broken up, was not entitled to redeem anything beyond his own share against the will of the mortgagee. He laid down the principle that such a mortgagor "may" redeem his own share only on payment of a proportionate part of the mortgage money, but he "cannot compel" the mortgagee to allow him to redeem the shares of the other persons in which he is not interested.
3. The case of Ahmad Husain v. Muhammad Qasim Khan AIR 1926 All 46 is an authority only for the proposition that one mortgagor after the integrity of the mortgage has been destroyed, cannot as of right claim redemption of more than his own share when the mortgagee objects to it. In that case the mortgagee was resisting the claim and was objecting to any greater share being allowed to be redeemed. The same remarks apply to Zaib-un-nissa Bibi v. Parbhu Narain 1917 39 All 618. On the other hand a Bench of this Court in Shiam Saran v. Banarsi Das AIR 1922 All 192 allowed a part owner of the mortgaged property to redeem just as much of it as did not belong to the mortgagees themselves, on payment of a proportionate share of the mortgage debt, possible. The learned Judges were influenced by the circumstance that the majority of the pro-forma defendants had supported the plaintiff's claim and had asked that his suit might be decreed as brought. I am not prepared to go to the length to which the Bench in Shiam Saran's case AIR 1922 All 192 did, but I would certainly say that none of the cases referred to above is any authority for the proposition that when the mortgagee himself does not object and submits to the redemption of the share of all the co-mortgagors other than that which he himself has acquired, on receipt of the proportionate amount of the mortgage money, the possession of the redeeming co-mortgagor at once becomes adverse as against the other co-mortgagors.
4. It seems to me that when the delivery of possession is made by the mortgagee to the plaintiff co-mortgagor the property is delivered to the latter on behalf of all the persons interested and the initial possession taken by them is in a representative capacity and therefore not at all adverse. The character of such representative possession would not change unless subsequently there is an assertion of adverse title to the knowledge of the other co-mortgagors. In the case where the redeeming co-mortgagor is a cosharer with the other co-mortgagors, his possession in the eye of the law is on behalf of all the cosharers and without an express denial of their title and their ouster to their knowledge, his adverse possession cannot commence. If the possession of one co-mortgagor redeeming the whole property were to become adverse automatically from the very commencement, the mortgagors would find their period of redemption suddenly cut down to 12 years sometimes without their knowledge. Article 144, Limitation Act, will apply where there has been no dispossession, and the defendant must prove his adverse possesion for over 12 years. Article 142 applies only when the plaintiff having been previously in possession has been dispossessed, in which case he must sue with in 12 years of his dispossession. I do not imagine that the learned Judges in Kanhaiya Lal v. Girwar AIR 1929 All 753 meant to lay down anything different. There is no doubt that Khem Singh, by virtue of his auction purchase in 1892 of the interest of Girdhari, became a co-mortgagor, when in 1898 he redeemed the entire mortgage on payment of the entire mortgage money and obtained possession of all the three mahals, his position was that of a full proprietor qua Girdhari's interest purchased by him and that of a charge holder qua the interest of the other co-mortgagors.
5. When Johri and Mangli, who subsequently purchased mahal Pitam, wanted to redeem the mortgage, they could not have insisted on Khem Singh submitting to a redemption of the entire property. If Khem Singh had insisted mpon his rights, he would have compelled Johri and Mangli to redeem only their share on payment of the proportionate amount. But as the redemption took place out of Court under a mutual agreement, Khem Singh did not object and handed over possession of the entire mortgaged property to Johri and Mangli on the receipt of the entire mortgage money. Subsequently Johri and Mangli purchased the whole of mahal Harbhan also. It seems to me that the position of Johri and Mangli, as regards the share of the plaintiffs, must be one of a person who has paid off their share of the mortgage money on their behalf and taken possession from the mortgagee and has not yet been paid off by the plaintiffs. The plaintiffs own the equity of redemption, but so long as they do not pay the mortgage money they are not entitled to obtain possession. The right to possession was with Khem Singh so long as he was not paid. He has passed on his possession to Johri and Mangli on taking the plaintiffs' share of the mortgage money from Johri and Mangli. The latter therefore cannot be treated as rank trespassers, but as persons who have been put in possession by the lawful mortgagee, Khem Singh, and who have paid off the share of the mortgage money due from the plaintiffs. The plaintiffs are, to say the least, the licencees of the mortgagees, and if 12 years were to expire, they would certainly acquire adverse possession as mortgagees against the other mortgagors. But before such adverse possession has matured they would not be entitled to enforce rights as plaintiffs, but as defendants they are in equity entitled to protection.
6. The position of the defendants there-fore is not that of trespassers, pure and simple, but of persons who are in possession of the mortgaged property, having paid off a part of the mortgage money, and are entitled to use that payment as a shield so long as they themselves are not redeemed. Legally the mortgagee rights have not been assigned to them so that they cannot, as plaintiffs, enforce any rights of subrogation in a Court of law. But as defendants in possession they can set up their payment as a shield. For authority I may refer to the observations made at pp. 281, 285 (of 1931 A.L.J.) in Nannu Mal v. Ram Chander AIR 1931 All 277. See also Nasiruddln v. Ahmed Hussain, A I. Rule 1926 P.C. 109. In the Full Bench case of Ram Sanehi Lal v. Janki Prasad AIR 1931 All 466, three out of the remaining four learned Judges agreed with my judgment in which on pp.744 to 745 (of 1931 A.L.J.) I referred to previous cases laying down the rule of equity in favour of a defendant in possession, to claim the amount paid by him in discharge of a previous mortgage. The position of a person paying off a simple mortgage (otherwise than by purchasing the property in execution of a decree on a prior mortgage) stands on a different footing because the mortgagee has no right to take possession. But a person paying off a possessory mortgagee in his capacity of a mortgagor or subsequent mortgagee does not obtain possession as a trespasser and cannot be turned out so long as the amount due is not repaid.
7. It seems to me that the plaintiffs who have neither redeemed their mortgage, nor paid the mortgage money, cannot recover possession against the defendants who have taken possession from the usufructuary mortgagees on payment of the mortgage debt. The case of a Mahomedan widow in possession of her husband's property in lieu of her dower debt over which she has a lien is different. The lien is always extinguished when possession is lost. If she transfers the property without transferring the lien itself, the transferee obviously cannot claim payment of the dower debt as against her heirs. But it has always been held that her right to recover the debt and her lien are both heritable and transferable. If she were to transfer the lien itself, there can be no doubt that the transferee would be able to resist a claim for possession brought by the heirs. But where she has not transferred the lien at all, a transferee of the property only cannot claim the lien. I do not think that any of the points which arise in this case at all arose in the Full Bench case of Sohart Lal v. Mohan Lal AIR 1928 All 726.
8. But it seems to me that the defendants can also call upon the plaintiffs to prove their title. The mere fact that at one time the mortgage existed, is not sufficient for a claim for redemption to succeed. The plaintiffs must further establish that the mortgage was made within sixty years or that their right of redemption has been kept alive by any subsequent acknowledgment. The burden is on them to show that they have a subsisting right of redemption: See Anup Singh v. Fateh Chand AIR 1920 All 92. The view of the majority of the Full Bench is binding upon me. Where a suit relates to possession of immovable property and limitation has expired, it is not only that the remedy is barred, but the right also is extinguished under Section 28, Limitation Act. If therefore 60 years have expired the plaintiffs' rights have been extinguished.
9. The defendants who are holding possession with the consent of the mortgagee, Khem Singh, are entitled to plead that they are not rank trespassers, and can legitimately urge that the plaintiffs should have brought their suit for redemption against the mortgagee, Khem Singh, impleading the present defendants as the persons who have been put in possession by the mortgagee. The plaintiffs cannot, over the head of the mortgagee Khem Singh, sue to dispossess the defendants who are in possession with their consent.
10. It also seems to me that the defendants are at any rate entitled to put the plaintiffs to proof of the fact that their right of redemption was subsisting till 1920, when the mortgagee Khem Singh put the defendants in possession. If the plaintiffs' right of redemption owing to lapse of time had become extinguished by the 26th of March 1920, then they cannot get a fresh start as against the present defendants merely on the ground that the latter are mere volunteers, even if they were so, who have paid off the mortgage money and taken possession of the mortgaged property without any formal deed of assignment. If the right of redemption had been extinguished by 1920, the only person to whom the defendants are responsible is Khem Singh from whom they have taken over-possession for" consideration. They cannot be compelled to hand over possession to the plaintiffs without receipt of their money. In the absence of proof of the exact date of the mortgage the plaintiffs' claim should be dismissed, as laid down by the Full Bench in Anup Singh's case AIR 1920 All 92. I would accordingly allow the appeal and dismiss the suit.
Mukerji, J.
11. The facts of the case are given in the judgment of the learned single Judge against whose judgment this Letters Patant appeal has been filed. I will state the facts only briefly so that the discussion involved in this judgment may be properly understood. The following pedigree will be useful:
_________________ | | Kalyan Ram Prasad | | Lachman | | | Pitam=Mt. Rarn Kuer | (widow). | ___________________________________ | | | | Dharam Singh Nand Kishore Girdhari Harbhan | | (defendant 3).
12. The two original owners Kalyan and Ram Prasad owned a 2 biswa share in a certain village and they mortgaged the same to one Lakshmi Chand on a date which has not been disclosed. All that we are told is that the mortgage is an ancient one. In course of time the 2 biswa share was split up into three complete Mahals. One Mahal consisting of 1 biswa was named after Pitam, the son of Lachrhan. Another Mahal was known after Girdhari, one of the four sons of Ram Prasad. This Mahal consisted of a half biswa of the original Mahal and was owned by Dharam Singh and Girdhari, two of the four brothers. The third Mahal was named after Harbhan and consisted of a half biswa original share and was given to Harbhan and Nand Kishore, the two remaining of the four brothers being sons of Ram Prasad.
13. Girdhari's half share in Mahal Girdhari was sold at an auction sale and was purchased by one Khem Singh. It has been found by the learned single Judge of this Court that Dharam Singh had died after the auction sale, therefore, so much of the share of Dharam Singh as was inherited by Girdhari was not sold by the auction sale. The correctness of this finding was impeached by the learned Counsel for the appellants, but I am satisfied that this finding is correct and the finding of the lower appellate Court on this point was vitiated by the fact that the lower appellate Court thought that there was no evidence as to the date of Dharam Singh's death. Girdhari's one quarter biswa in the original Mahal which is equivalent to one-half of Girdhari's Mahal passed by the auction sale to Khem Singh on 1st of December 1890. Khem Singh redeemed the mortgage in favour of Lakshmi Chand on 26th of June 1898 and thus became the owner of Girdhari's original share and became entitled to hold possession over the other shares till the co-owners redeemed the original mortgage in his hands.
14. Pitam's widow Ram Kuer sold the entire Mahal Pitam to the appellants for a sum of Rs. 600 and directed that out of this sum of Rs. 600, Rs. 210 should be paid by the purchasers in satisfaction of the mortgage. The appellants paid the sum of Rs. 210 to Khem Singh and we are told that Khem Singh handed over to the appellants not only the Mahal Pitam to which alone the appellants were entitled but also all other properties mortgaged including the property purchased by Khem Singh himself. This redemption, was by private treaty and took place on 26th March 1920.
15. The Appellants, it seems, purchased the whole of Mahal Harbhan. Two suits-were instituted in respect of property against the appellants. One was by Tunde, son of Nand Kishore, in the-right of his own father's original share-in Mahal Harbhan. He claims one-half of Mahal Harbhan without offering to pay anything to the defendants, on the allegation that the property belonged to him in his own right and Harbhan had no right to sell it, on 19th July 1920. This was suit No. 81 of 1928. The second suit was instituted by the four grandsons of Girdhari and. Nand Kishore's son Tunde for recovery of the share of Dharam Singh inherited by them. They claimed twelve shares out of 27 shares in Mahal Girdhari but they have obtained a decree for nine shares out of 27 shares or one-third. Their case was as follows: On the death of Dharam Singh his half share in Mahal Girdhari was inherited in three equal shares by Nand Kishore Girdhari and Harbhan. Nand Kishore-thus got one-sixth in the Mahal and Girdhari got one-sixth share in the Mahal and Harbhan got one-sixth Harbhan sold his share and therefore two one-sixths remained with Nand Kishore and Girdhari which the plaintiffs in suit No. 103 of 1928 claimed They did not offer to redeem the mortgage.
16. Both the suits succeeded in the lower-appellate court but in Suit No. 81, the plaintiffs got a decree on condition of payment of a sum of Rs. 70-2-4. Tunde in Suit No. 81 got a decree for possession of the share claimed without any condition of payment. The learned-single Judge of this Court held that the-mortgage of Lakshmi Chand was paid with the money left by Pitam's widow out of the sale proceeds with the appellants. The appellants paid off the mortgage with the money of Pitam's widow and therefore were not entitled to be repaid in giving up the property claimed by the plaintiffs. In other words, the appellants did not hold; according to the opinion of the learned single Judge, as mortgagees. The-defendants have appealed. The plaintiffs are not only satisfied with the decree of this Court made by the single Judge, but they have also not appeared in the Letters Patent appeals.
17. The points that have been urged before us are: (1) The appellants have paid off Khem Singh and having been put in possession of the plaintiffs' shares in the two suits are in the position of a mortgagee and therefore the plaintiffs cannot get possession without payment of a proportionate share of the mortgage money. (2) As the date of the mortgage is not established and as it cannot be said that the claim is within time, the suit must be dismissed. I have already disposed of the third point raised, namely, the share of the plaintiffs in suit No. 103 of 1928 which was filed by Tunde and the four grandsons of Giridhari was less than 9/27 or 1/3 as Dharam Singh died before Girdhari's share was sold. It is clear that if my answer on the point No. 1 be that the appellants do not hold as mortagees, the second question raised by them does not arise. It is settled law that when one of several co-mortgagors redeems, he holds his own share free from mortgage and he holds the remaining shares with the same rights as the mortgagee had. This position of the redeeming co-mortgagor is due to the fact that the co-mortgagors are in the eye of the law not only principal debtors but also are sureties for one another for the payment of the mortgage. When a surety satisfies a principal debt, he is entitled to hold the securities held by the creditor, in order to realise the sums which the co-mortgagors or co-debtors are liable to contribute towards the satisfaction of the principal debt. This is the principle of contribution as enacted in Section 82, T.P. Act, and this is the principle of subrogation as enacted in Section 92, T.P. Act, as amended in 1929.
18. The question then is when a co-mortgagor has redeemed the mortgaged property and when one of the co-mortgagors seeks to recover his property from the co-mortgagor who has redeemed, is the co-mortgagor entitled to recover not only his own share but the shares of other co-mortgagors who have not yet contributed towards the payment of the mortgage debt? It was conceded by the learned Counsel for the appellants before us that the co-mortgagors seeking redemption from his co-mortgagor is entitled only to take possession of his own share and not the shares of the other co-mortgagors. There is a conflict of opinion on this point among the various High Courts. But so far as this Court is concerned, the decisions except one are all one way and lay down that the co-mortgagor is entitled to his own share alone. This was held in Kallan Khan v. Mardan Khan [1906] 28 All 155, Zaibunnissa v. Parbhu Narain [1917] 39 All 618 and Kuray Mai v. Paran Mal [1878] 2 All 565. A contrary view was taken in the case of Shiatn Saran v. Banarsi Das AIR 1922 All 192. But a Bench of this Court in Ahmad Husain v. Qasim AIR 1926 All 46 preferred to follow the three earlier cases to the case of Shiatn Saran v. Banarsi Das AIR 1922 All 192. The principle on which these cases are decided is that the integrity of the mortgage has been broken. The only object of one of the mortgagors being compelled to redeem, the whole mortgage (being for the benefit of the mortgagee) no longer subsists. A co-sharer as such is not entitled to possession over the share of other co-sharers. The co-sharer who has redeemed the mortgage initially, holds shares other than his own simply for the sake of being able to enforce payment to himself. That object does not exist in the case of the other co-sharer. These pay their proportionate share in the mortgage money and take their own property from the redeeming co-mortgagor. This principle has been applied to cases where out of the usufruct of the mortgaged property entire mortgage money is paid off. In such a case, it has been held that one of the co-mortgagors is entitled to recover possession of his own share alone, and it has been further held that if one of the co-mortgagors takes possession of more than his legitimate share, he holds adversely to the owner of the excess share: see Fakir Bakhsh v. Sadat Ali [1885] 7 All 376 and Gobardhan v. Sujan [1894] 16 All 254. It is in the last mentioned case that the possession of the co-mortgagor who had obtained more than his share of the property was held to be adverse to the owner of the excess share. This must be so as there is no fiduciary relationship among the cosharers as such.
19. In this view of the law, the appellants, on payment to Khem Singh had no right to take possession of the property belonging to the plaintiffs in the two suits and held by Khem Singh as security for a proportionate share of the mortgage money paid by him to the heirs of Lakshmi Chand. I may remark here that I am unable to agree with the learned single Judge of this Court that the mere fact that the mortgage money was paid out of the sale proceeds of the share sold by Mt. Ram Kuer will deprive the appellants of their right to hold the redeemed property as mortgagees in order to secure payment of the proportionate mortgage money to themselves. That is to say if the appellants had paid off Lakshmi Chand's heirs, that is to say to the mortgagees themselves and not Khem Singh, a co-mortgagor, who had redeemed in the first instance, in my opinion, the appellants would have been entitled to hold the shares other than their own till the owners of those shares redeemed them. The money has actually been paid by the transferee and it is immaterial whether it was described as part of the purchase price. The purchase price was Rs. 600 and out of this sum Rs. 210 were left to pay Lakshmi Chand's heirs. The same transaction may very well have been described as a sale of property subject to mortgage for a sum of Rs. 600 minus Rs. 210, or for Rs. 390.
20. The argument on behalf of the appellants however is that although it may be correct in law that the appellants were not entitled to recover from Khem Singh any property other than the Mahal Pitam Singh the property; sold to the appellants, yet they having paid more than their legitimate share to Khem Singh and having recovered other shares from Khem Singh, they are in the same position as Khem Singh. I am unable to accept this position in law. If the appellants have no right to recover anything beyond their own share, and if they recovered anything more they are pure trespassers with respect to the extra share recovered by them. If they paid a little money due by others, they paid as mere volunteers. Nobody asked the appellants to pay and they cannot recover. I need hardly repeat that Khem Singh's rights arose on the principle of subrogation which is expressly granted to a co-mortgagor redeeming property. On the other hand I find no warrant in Section 92, T.P. Act, as amended in 1929 or indecided cases any warrant for the proposition that a right of subrogation can arise on redeeming property from a co-mortgagor who has already redeemed it.
21. For the reasons given above, in my opinion, the appellants are nothing but trespassers and are bound to hand over the property to the plaintiffs in the two suits and they asked for the same. Now remains to notice one more argument of the learned Counsel for the appellant. It is this. Assuming that -the appellants have no title to the property and they are not to be reimbursed for what they have paid, the plaintiffs have no right to recover the property as they have not paid off the mortgage. The answer to this argument is in my opinion simple. The "owner" of the property is the mortgagor at all times although the same property may have been mortgaged more than once. This question was discussed at length in the case of Sohan Lal v. Mohan Lal AIR 1928 All 726 and the view taken by the majority of the Judges in that case: see espacially pp. 991 and 992 and 999 to 1001 (of 50 Ali.) is in accordance with general principles. In view of that case the plaintiffs are the owners of the property and they are entitled' to recover the same from any person who has got possession of the same for less than twelve years. In the case of Amir Hasan v. Nazir Hasan AIR 1932 All 345 the widow of a deceased Mahomedan was in possession in lieu of dower. She sold her right of the dowers to a legal practitioner who was debarred from purchasing an actionable claim, and put him in possession. It was held that an heir of the deceased could recover the property from the transferee without paying the dowers. This was because the plaintiffs had no title and the defendant had none. The suit is based on title and to such a suit Article 144, Schedule 1, Limitation Act, applies, as held by their Lordships of the Privy Council [see the case of Chattra Kumari v. Mohan Bikram Shah AIR 1931 PC 196. This view had already been taken by two learned Judges of this Court in the case of Kanhalya Lal v. Girwar AIR 1929 All 753. This last mentioned case has been followed by me and Bennet, J., in other cases.
22. The title being thus with the plaintiffs the only person who could resist their claim for possession was either Lakshmi Chand and his successors-in-title or Khem Singh who redeemed the mortgage from them. The appellants' position being that of a traspasser pure and simple, they are bound to hand over, the property to the plaintiffs, if they fail to establish (as they cannot establish in this case) that they have held the property adversely to the' plaintiffs for more than twelve years. In my view the plaintiffs are entitled to a decree for unconditional possession in each case. The result is that I would dismiss both the appeals but without costs as the respondents are not represented before us.
23. As we differ on the questions of law arising in this case we direct that this case be laid before the Chief Justice for being sent to one or more of the other Judges.
King, J.
24. This was an appeal under Section 10, Letters Patent, against the decree of a learned single Judge of this Court dismissing a second appeal arising out of a suit for possession of zamindari property. As the two learned Judges who heard the appeal have differed in opinion on a point of law, the case has been referred to me for opinion on that point.
25. The point of law on which my opinion is required has not been formulated, but both sides have been represented before me by learned Counsel who agree that the question is:
Are the appellants Jauhari and Mangali in possession of the plaintiff's share in the capacity of mortgagees, or trespassers, or in any other capacity?
26. The position in 1898 was that there were 3 mahals jointly subject to an old usufructuary mortgage. The mahals were 3 mahals jointly subject to an old mortgage. The mahals called Mahal Pitam, Mahal Girdhari and Mahal Harbhan. One Khem Singh owned a share in Mahal Girdhari. Khem Singh, as one of the co-mortgagors, redeemed the whole mortgaged property by paying the mortgage money, Rs. 210-8-0 to the mortgagee Jwala Prasad and got possession of the whole property. After redemption the position was that Khem Singh held his share in mahal Girdhari free from the encumbrance. In respect of the rest of the mortgaged property Khem Singh was subrogated to the rights of the original necessary mortgagee. In the absence of authority the language of Section 95, T.P. Act, might have led one to hold that Khem Singh merely held a charge over the remaining property for the proportionate mortgage debt, but it is well established by judicial authority that in respect of the property of his co-mortgagors he must be treated as the assignee of the mortgage security. This proposition has received statutory recognition in Section 92, T.P. Act, as amended in 1929. So far there is no difficulty. In 1919 the appellants bought mahal Pi-tam, and on 26th March 1920 they redeemed, not only mahal Pitam, but the whole of the mortgaged property, on payment 'of the mortgage debt of Rs. 210-8-0 to Khem Singh. The latter delivered possession to them of the whole mortgaged property including even his own proprietary share in mahal Girdhari. It is not clear why Khem Singh delivered possession of his own share, which was free from the encumbrance, but it seems that he did so. Subsequently the appellants purchased from Harbhan certain shares in mahal Harbhan and Mahal Girdhari but these transactions have no material bearing on the point at issue.
27. Tunday (the plaintiff in suit No. 81 of 1928) owns a half share in mahal Harban. Tunday. and the grandsons of Girdhari (plaintiffs in suit No. 103 of 1928) between them own a share in mahal Girdhari. They claim possession of their shares from the appellants, without paying the proportionate share of the mortgage debt, alleging that the latter are in possession without title. The appellants, claim that as they had discharged the mortgage debt upon the plaintiff's share they cannot be dispossessed without being paid the proportionate share of the mortgage debt. Mukherji, J., takes the view that the appellants were only entitled to redeem, their own share and had no right to redeem the share of the plaintiff also. When they paid the mortgage debt clue upon the plaintiff's shares they did so as volunteers, and have no right to retain the property or to be reimbursed. For these reasons the appellants are nothing but trespassers and are bound to hand over the property to the plaintiff without receiving any payment. Sulaiman, C.J., is of opinion that although the appellants had no-right to redeem more than their own share against the will of the mortgagee, nevertheless they were entitled to redeem the whole property with the mortgagee's consent. Having redeemed the whole. property with the mortgagee's consent they cannot be dispossessed unless the plaintiff pays his proportionate share of the mortgage debt. As defendants in possession they can set up-their payment as a shield. At the very least they are licensees of the mortgagee and not mere trespassers.
28. I find it very difficult to hold that the appellants, who were co-mortgagors, and who obtained possession from the mortgagee, after paying up the entire mortgage debt, are mere trespassers. It is conceded that, when the integrity of a mortgage has been broken a. co-mortgagor is entitled to redeem his own share and cannot compel the mortgagee to permit redemption of more than his share. The mortgagee also cannot compel a co-mortgagor to redeem more than his share. But I cannot find any authority for the view that a co-mortgagor cannot redeem the whole mortgaged property with the mortgagee's consent. Such a transaction does not contravene or evade the provisions of any law nor does it injure anyone. The plaintiff as co-mortgagor was not entitled to recover possession of his share without'paying off the proportionate mortgage debt due upon his share. It is immaterial to him whether pays the money to Khem Singh or to the appellants, so he has not been prejudiced in any way.
29. In my opinion Section 95, T.P. Act, applies not only to the redemption by Khem Singh from the mortgagee, but also to the redemption by the appellants from Khem Singh. When Khem Singh redeemed the whole property from the mortgagee he was undoubtedly subrogated to the rights of the mortgagee. He occupied the position of an assignee of the original security. So when the appellants redeemed the whole property from Khem Singh, on payment of the whole mortgage debt, I think the appellants stepped into the shoes of Khem Singh as assignees of the original security. It is true that the appellants were not (like Khem Singh) bound to redeem more than their own share, as the integrity of the mortgage had been broken. But there is nothing in Section 95 to indicate that its application is restricted to cases where the co-mortgagor cannot redeem his own share only and is compelled to redeem the whole property. I think the same principle will apply where a co-mortgagor redeems the whole property, with the mortgagee's consent, although he might have compelled the mortgagee to permit the redemption of his own thare only. If the principle of Section 95 is applicable, as I think it is, then the appellants are clearly in possession of the plaintiff's share in the capacity of mortgagees.
30. No judicial authority which is directly in point has been cited before me. The case of Gobardhan v. Sujan [1878] 2 All 565 has been cited by the respondent to support the contention that the appellants are in adverse possession of the plaintiff's shares, as trespassers and not as mortgagees but that case is clearly distinguishable on the facts. In that case a usufructuary mortgage had been satisfied out of the usufruct. One co-mortgagor recovered possession of the whole property. It was held that he was not entitled to take possession of more than his own share, and that he did not occupy the position of a mortgagee to his co-mortgagors but his possession was adverse to them. The reason for the decision was that as the mortgage had been satisfied out of the usufruct the mortgage became extinct, and the parties were relegated to the position in which they were before the mortgage. In the present case the mortgage had not become extinct and the appellants took possession of the property from the mortgagee Khem Singh on payment of the whole mortgage debt. I think;' this ruling is no authority for holding that, on the facts of this case, the appellants are in possession of the plaintiff's share not as mortgagees but as trespassers.
31. There is one aspect of this case which has not been touched upon, either in the foregoing judgments or in arguments before me. The language of Section 70, Contract Act, seems wide enough to be applicable to the facts of this case. The appellants lawfully discharged the mortgage debt on the plaintiff's share. They clearly did not intend to do so gratuitously and the plaintiff enjoys the benefit of such discharge. The plaintiff claims possession of his share without payment on the ground that the appellants have discharged the plaintiff's debts officiously and voluntarily. But Section 70 is not restricted to cases where a service is rendered to another person under compulsion or in circumstances of pressing necessity. It is not the appellants who are seeking as plaintiffs to recover money from the persons benefited. It is the persons benefited who are seeking to recover possession of the property, and under the provisions of Section 70 there is some force in the defence that the plaintiff should not be permitted to recover the property without repaying the sums paid paid by the defendants on behalf of the plaintiff. If it is held that Section 95 does not apply, and if there is nothing in the law of mortgage that expressly governs the question, then we are entitled to seek guidance from the general principles of equity. On the equitable principle laid down in Section 70 I think the plaintiff is not entitled to enjoy the benefit of the payment made by the appellants without making compensation.
32. The lower appellate Court has decreed the claim in suit No. 103 on payment of Rs. 70-2-4 and it is significant that the respondent has not even troubled to file a cross-objection. This shows that the plaintiff does not regard it as unjust that he should pay the proportionate mortgage debt as a condition of obtaining possession, and he will have to do so even if the appeal is dismissed. Whether the view that I take on the point of law is right or wrong, I feel that it is at least in accordance with justice and equity. In my opinion the appellants are in possession of the plaintiff's share as mortgagees and not as trespassers, and the plaintiff cannot recover possession with out paying his proportionate share of the mortgage debt.