of the Transfer of Property Act, a co-mortgagor is a person entitled to redeem the mortgage, but it is also prescribed by Order XXXIV, R.1, C. P. C. that all persons having an interest either in the mortgage-security or in the right of redemption shall be joined as parties to any suit relating to the mortgage. In this view, the other co-mortgagor also is a necessary party to the suit. But the question to determine is whether in his absence, a decree could not be granted to the co-mortgagor who sues for redemption. In this case learned counsel for the plaintiffs have also taken the point, that the objection as to non-joinder is not now open to the defendant, not having set up the objection at an early stage as laid down by Order I, R.9, C. P. C., his case being only that the plaintiffs have no right to redeem. However that be, it has been held in Bansidhar Pandey v. Masudan Singh (A. I. R.1962 Patna 191), that the true test for deciding the point is, whether the rights of the parties on the record can be fully determined in the absence of the other co-mortgagor and whether that determination can be made so as not to affect the rights of the absent party. Following an earlier decision of the same court in Mt. RajMt. Raj Mohni Debi v. Harihar Mahton (A. I. R.1958 Patna 67) it was held, that one of the fractional owners of the equity or redemption may sue to redeem the whole mortgage and the suit is not liable to be dismissed for non-joinder of the other comortgagors. In the present case, as the owner of the half share of the equity of redemption, the plaintiffs can be allowed to redeem the mortgage by payment to the defendant of whatever is found due to him on settlement of accounts. This will effectually dispose of the case as between the plaintiffs and the defendant and will in no way affect or prejudice the rights of the heirs of Chadayan Kunjan. So I think, this is a case in which the ratio of the decision cited may be applied.”
