Shiv Dayal, J.
The Appellant''s suit for redemption was dismissed by the Civil Judge, Agar and that decision has been affirmed by the learned Additional District Judge, Shajapur holding that the Plaintiff had no right to sue for redemption.
The material facts of the case are that one Mahant Haripuri was the owner of a house called Babawal Nohra. He mortgaged this house in favour of the father of Badrulhasan in the year 1921. Badrulhasan sold the Nohra to Amra Defendant No. 1 and Onkarlal father of Khayalilal Defendant No. 2, by a sale-deed dated March 27, 1933. On the other hand, by a mortgage-deed dated October 13, 1950 Mahant Haripuri Defendant No. 4 mortgaged his right of redemption in favour of Smt. Gangadevi, the Plaintiff.
The learned Additional District Judge, Shajapur has non-suited the Plaintiff on the ground that the mortgage-deed in favour of the Plaintiff purported to create a mortgage with possession but in fact possession had not been given to the Plaintiff and unless Mahant Haripuri got the first mortgage redeemed, he could not create a second mortgage in favour of the Plaintiff and, secondly, because the mortgage-deed of the year 1921 was not produced by the Plaintiff, it was not known when the mortgage money became due.
In my judgment, the first ground stated above is not only contrary to the provisions of law but it is also in complete disregard to the elementary principles and incidents of mortgage. The right of redemption is itself a property which the mortgagor is entitled to sell, mortgage or otherwise transfer. It does not appear from the judgment of the learned Additional District Judge from where he gets the law that a mortgagor cannot create a mortgage of his right of redemption without first redeeming the earlier mortgage. It is a fundamental concept of mortgage that it splits, so to say the ownership rights into two--one parcel (called the "mortgagee''s rights") goes to the mortgagee while the other piece which still remains with the mortgagor is the equity of redemption. Both these rights are heritable and alienable properties. When subsequently the mortgagor creates a mortgage of his right of redemption, that right again gets broken up into two fragments. This mortgagee gets the mortgagee rights of the equity of redemption while the mortgagor now retains with him the right to redeem the equity of redemption. Hence the mortgage of 1950 in favour of the Plaintiff was that of the equity of redemption and the Plaintiff could as such bring a suit for redemption against the mortgagee of 1921 or his representative in interest, I, therefore, hold that the present suit for redemption was maintainable. If the possession was not with the mortgagee at that time, the deed of 1950 created only a simple mortgage in favour of the Plaintiff. That too does not render the suit incompetent. If any reference to law is needed it is sufficient to refer to Section 91 of the Transfer of Property Act.
Shri A.H. Siddiqui, learned Counsel for the Respondent, with his usual frankness and fairness, expressed his inability to support the proposition of law laid down by the lower appellate Court.
As regards the second reason, in my opinion, the learned appellate Judge has set up a new case for the Defendant. It was not pleaded by any of the Defendants in this case that the mortgage money had not become due or that the right to sue for redemption had not accrued. Nor was there the plea of limitation. It must be mentioned here that it was while deciding Issue No. 7 that the above finding was given by the lower appellate Court. Issue No. 7 runs as follows:
What relief the Plaintiff is entitled to?
It is really surprising that under this issue, such an important question as to whether the Plaintiff had the right of redemption or not, was decided. It was a question of fact whether the mortgage money had become due and the right to redeem had accrued. It was for the Defendants, or any of them, to raise a plea in the written statement that the suit was premature or was barred by time. In the Defendants'' pleadings there is not the slightest whisper of any such attack on the suit. For the above reasons, I hold that the Plaintiff had the right to sue for redemption.
The second ground on which the Plaintiff''s suit has been thrown out is that the sketch of the mortgaged premises produced by the Plaintiff did not agree with the actual situation that existed when the suit was in progress. This finding was given on issue No. 11 which runs thus:
Whether the map is wrong?
It is obvious enough that the issue as framed was quite vague and indefinite. It did not specify which map was referred to in the issue. Shri Mungre, learned Counsel for the Appellant, has taken me through the pleadings of the parties. The Plaintiff alleged all the facts relating to the mortgage transaction. The defence in the first instance was that Badrulhasan was the owner of the property and not a mortgagee. Subsequently in the second written statement dated January 22, 1951, the Defendant admitted, in so many words, that the previous objection was taken because of wrong information given to the Defendant and said that since on further enquiry he came to know of the mortgage of 1921, the mortgage was admitted. The Defendant having thus admitted the mortgage, if the dispute was that the house which was mortgaged with the father of Badrulhasan was different from the one which was sold by Babrulhasan to Amra and Onkarlal, there should have been such a specific issue framed. The wording of issue No. 11, as framed by the trial Judge, does not convey to the litigants that the identity of the house was to be proved or disproved under that issue. The contention of Shri Mungre that the admission of the mortgagor was also pregnant with the admission of the identity of the property is full of considerable force. The only objection raised in the written statement was that the map was not correct which implied that the property included in the sketch filed by the Plaintiff depicted either some more property which was not included in the mortgage or that something which was in fact mortgaged was left out or that the specifications were not correctly shown.
With regard to this point, Shri Siddiqui invited my attention to the fact that unless the mortgage deed of 1921 was produced, the Court could not come to a definite conclusion as to which property was actually mortgaged and that would create difficulties both in passing a proper decree as also in getting it executed.
On going through the issues as also the manner in which this suit was decided by the first Court, I am constrained to observe that the primary duties of a Court were ignored. The trial Judge should have first ascertained the real dispute between the parties to be decided. Although as many as twelve issues were framed, the real question in controversy was ignored and that is why the attention of the parties could not be focussed upon it. I am satisfied that both the parties were misled in the production of evidence.
Shri Siddiqui invited my attention to the fact that his plea that the Plaintiff was liable to pay the compensation for improvement which was the subject-matter of issue No. 2 was left undecided and was postponed to be determined after the preliminary decree was passed. In my opinion, it will be better and convenient to decide that question also before a preliminary decree is passed. It is amusing to note that the learned Additional District Judge has in his judgment reproduced issue No. 2 as follows:
The learned Judge appears to have read "5" as ''s'' and "1" as ''I'' (and "SI" for "51").
In the circumstances of the case, I am satisfied that the ends of justice require that this case be sent back to the trial Judge.
I, therefore, allow this appeal and after holding that the Plaintiff''s suit was competent and that she had the right to sue for redemption, I send this case back to the trial Judge for giving a fresh opportunity to the parties to adduce their evidence on the following two issues which I frame and thereafter pass a preliminary decree in favour of the Plaintiff in the light of his findings thereon:
(1) Whether the Defendant is entitled to any compensation for improvement u/s 51 of the Transfer of Property Act and, if so, what is the amount that the Plaintiff is liable to pay?
(2) Which precisely is the property in respect of which a decree for redemption is to be passed?
The Defendant shall pay to the Plaintiff his costs in this appeal as also in the lower appellate Court.
