Right of redemption survives abatement against one co-mortgagee where full mortgage debt is tendered and no estoppel is proved.

SC held that a redemption suit was not defeated by abatement against one co-mortgagee where the mortgagor was ready to discharge the entire mortgage debt before the surviving mortgagee and relinquish any claim against the absent mortgagee's share. The right of redemption under the Transfer of Property Act remained enforceable on those facts. It further held that endorsements on the mortgagee's notices, read with the notices, showed only reluctance to bear repair expenses and did not amount to a clear relinquishment of title or create estoppel. Since no representation of fact, reliance, or prejudice was proved, the plaintiff's right to redeem was upheld.

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Issues: (i) whether the mortgage could be treated as indivisible so as to defeat redemption against the surviving mortgagee after abatement against the other mortgagee; and (ii) whether the endorsements made by the mortgagor and his heirs on the mortgagee's notices amounted to relinquishment of rights or created an estoppel against the plaintiff's claim to redeem.

Issue (i): Whether the mortgage could be treated as indivisible so as to defeat redemption against the surviving mortgagee after abatement against the other mortgagee.

Analysis: Section 60 of the Transfer of Property Act recognises the right of redemption, while the proviso prevents partial redemption of only a share of the mortgaged property except in the stated situation. Order 34, Rule 1 of the Code of Civil Procedure requires all persons interested in the mortgage-security or the right of redemption to be joined, but a suit does not necessarily fail against surviving defendants merely because it abates against one co-mortgagee. Where the mortgagor is ready to pay the entire mortgage amount and relinquishes claim against the absent mortgagee's portion, redemption can still proceed against the surviving mortgagee. The severance of the mortgaged property had been recognised, and the plaintiff undertook to satisfy the full mortgage amount due to the mortgagee before the court.

Conclusion: The suit for redemption against the surviving mortgagee was maintainable, and the abatement against the other mortgagee did not defeat the plaintiff's claim.

Issue (ii): Whether the endorsements made by the mortgagor and his heirs on the mortgagee's notices amounted to relinquishment of rights or created an estoppel against the plaintiff's claim to redeem.

Analysis: The endorsements had to be read with the notices and, so read, they only showed unwillingness to bear repair expenses. They did not amount to a clear relinquishment of title or interest. For estoppel under Section 115 of the Evidence Act, there must be a representation of fact intended to be relied upon, reliance by the other party, alteration of position to prejudice, and the representation must be made to the very person who seeks to rely on it. Those requirements were not satisfied: no representation was made to the defendant in the relevant sense, the statements concerned rights rather than facts, and there was no proof of detrimental reliance. At most, the endorsements were admissions, not conclusive bars.

Conclusion: The endorsements did not amount to relinquishment or estoppel, and the plaintiff was not barred from redeeming the property.

Final Conclusion: The plaintiff's right to redeem was upheld, and the decree in favour of redemption was affirmed, leaving the appellant without relief.

Ratio Decidendi: A redemption suit is not defeated by abatement against one co-mortgagee if the mortgagor is prepared to discharge the entire mortgage debt before the surviving mortgagee, and estoppel under Section 115 of the Evidence Act arises only from a representation of fact made to and relied upon by the party asserting it.

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