1924 (4) TMI 3

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..... out of the parent estate. The plaintiffs represent only some of those proprietors and one of the points raised in this appeal is that unless all the proprietors interested in the land are joined this suit for redemption cannot proceed. This point however will be considered later. 2. Kunj Behari having died without heirs the plaintiffs claim that the occupancy holding has reverted to the proprietors and that they as part owners of the equity of redemption are entitled to redeem the property from the defendants. (Here his Lordship traced the course of the litigation in the lower Courts.) In appeal before us three points have been taken. The first point is that the proprietors of all the estates who own a proprietary interest in the land i .....

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..... the owner of a part of the equity of redemption from offering to redeem the whole mortgage. 6. Indeed some earlier cases following Ahmad Ali Khan v. Jawahir Singh S.D., N.W.P. 425 have laid down that mortgagor is bound to offer to redeem the whole. The matter is further complicated in cases where the property is joint and indivisible and the transferee of a portion of the equity of redemption cannot point to any defined share as his. 7. The Bombay High Court have held that one of several coparceners may redeem the whole property leaving it to the mortgagee who has purchased a portion of the equity of redemption to have his rights ascertained and defined in a suit for partition: Bhikaji v. Lakshman [1891] 15 Bom. 27 Note. 8. I think .....

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..... escheat. Mr. Justice Ross, however, correctly points out that there could be an escheat only of an absolute hereditary mokarrary tenure and that although the tenure here might be hereditary and rent free there was no evidence that it was permanent. Our attention has been drawn to the glossary of terms used in the survey and settlement proceedings in Bihar and Orissa which shows that a brit tenure is a service tenure and it is urged that this definition is sufficient to allow an inference of permanency to be raised. 10. In my opinion the inference if any is exactly the other way. A service tenure is not necessarily permanent; and until the defendants can show that Kunj Behari held the land in perpetuity they cannot succeed. In our opinion .....

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