The appellant mortgaged his property bearing No. 162A West Masi Street Madurai Town for a sum of Rs. 45,000 with the respondent Bank on October 1~. 1950. In January 1952 the appellant and his wife borrowed Rs. 25,000 and jointly executed a pronote. The wife deposit· ed her title deeds relating to premises No. 162 West Masi Street. On June 25, 1952 the appellant and his wife created a mortgage of their c respective pwperties Nos. 162A and 162 West Masi Street to secure repayment of a sum of ·Rs. 8,850. All the three mortgages were in favour of the respondent Bank. In 1953 the Bank institute<! .a suit on the foot of the last two mortgages and obtained a decree against the appellant and his wife. This decree was satisfied. In April 1958 the Bank filed a suit on the foot of the mortgage dated October 14, 1950. The main defence of the appellant, who was the sole mortgagor, was that the suit was not maintainable in view of the provisions of s.67A D of the Transfer of Property Act and that the stipulation of interest was penal and in contravention of the provisions of the Usurious Loans Act, 1918. The trial court decreed the suit and the High Court dismissed the appeal. By special leave appeal was filed in this Court, HELD : If a mortgagor has made two or more mortgages of the same property or of different properties to the same mortgaaee the mortgagor may redeem each separately but the mortgagee must enforce E all or none. To attract the applicability of s. 67 A it is essential that the mortgaor must be the same and he should have executed two or more ll)Ortgages in respect of each of which he has a right to obtain the same kind of decree under s. 67. In the present case it was not possible to hold that the· mortgagor in the suit on the foot of the mortgage dated October 14, 1950 was the same as the mortagor in the previous suit which was filed on the foot of the mortgages in favour F of the appellant and his wife. In the other. two mortgages there were two mortgagors, one the appellant and the other, his wife. There is· no statutory provision or rule or principle by whic.h the wife and the husband could be treated as one entity for the purpose of the mortgage, Each was owner of ,a separate and distinct property and both joir\ed in mortgaging their respective properties. The bar of s. 67A therefore could not possibly come in the way of the institution of the present suit. [429 B-F)]
