Redemption of mortgage, non-joinder, and escheat principles upheld; part-owner may redeem the whole mortgage.

A redemption suit failed on objections to non-joinder because the defendants had opposed impleadment of absent proprietors and could not rely on the resulting omission to defeat the claim. A part-owner of the equity of redemption was held entitled to redeem the whole mortgage under Section 60 of the Transfer of Property Act, with any subsequent equities to be adjusted separately. The claim that title had vested in the Crown by escheat was rejected because the tenancy was not proved to be a permanent and hereditary one; the land was treated as a service tenure and the reversion remained with the landlords. Mesne profits were upheld from the date of suit, and the redemption decree was maintained.

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Issues: (i) whether the defendants could successfully object to non-joinder of all proprietors interested in the land; (ii) whether a part-owner of the equity of redemption could redeem the whole mortgage; (iii) whether the Crown acquired title by escheat and whether the plaintiffs were entitled to mesne profits from the date of the suit.

Issue (i): whether the defendants could successfully object to non-joinder of all proprietors interested in the land

Analysis: The objection was not allowed because the plaintiffs had already sought to implead the absent proprietors, and the defendants had opposed that application. In a redemption suit, the Court would have added the absent proprietors but for that opposition, and the defendants could not later complain of the very omission they had procured.

Conclusion: The objection to non-joinder failed against the plaintiffs.

Issue (ii): whether a part-owner of the equity of redemption could redeem the whole mortgage

Analysis: Section 60 of the Transfer of Property Act does not prevent an owner of only part of the equity of redemption from offering to redeem the whole mortgage. The Court treated the defendants' contention as one involving mixed questions of fact and law, raised for the first time at a late stage, and held that it could not be entertained. The mortgagee could, in appropriate proceedings, work out any equities after such redemption.

Conclusion: The plaintiffs were entitled to redeem the whole mortgage.

Issue (iii): whether the Crown acquired title by escheat and whether the plaintiffs were entitled to mesne profits from the date of the suit

Analysis: The Court held that an escheat could arise only if the tenure was shown to be permanent and hereditary in the relevant sense, and the defendants failed to prove that Kunj Behari held the land in perpetuity. The tenancy was treated as a service tenure, and on the tenant's death the landlords were entitled to the reversion. As to mesne profits, the uncontroverted pleading that redemption money had earlier been tendered supported the claim from the date of suit.

Conclusion: The title by escheat was rejected, the reversion was held to be with the landlords, and the award of mesne profits was upheld.

Final Conclusion: The redemption decree was maintained in full and the appeal was dismissed with costs.

Ratio Decidendi: A part-owner of the equity of redemption may redeem the whole mortgage under Section 60 of the Transfer of Property Act, and an objection to non-joinder raised after the objecting party's own opposition to impleadment cannot be relied upon to defeat redemption.

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