Stanley Batchelor, Kt., Acting C.J.
1. The facts out of which this appeal arises are these. In 1871 one Koneri affected to mortgage to the plaintiff No. 1 three pieces of property, namely, Survey No. 1088, one-third of Survey No. 1058 and a house. It was afterwards discovered, and is now admitted, that in fact Koneri had no title whatever to Survey No. 1088. In 1877, the mortgagor Koneri sold the equity of redemption in the two mortgaged properties to one Britto, who was the father of the 3rd defendant, and Britto in his turn sold the equity of redemption in the house to the defendant No. 2's father. This last sale was in 1880. The suit was brought by the plaintiffs to recover their money by the sale of the mortgaged property. The 1st defendant was sued as the heir of Koneri, but he took no part in the proceedings, and admittedly has no interest in the litigation.
2. It was contended in the lower Courts on behalf of the 2nd defendant that he was entitled to the application of the principle of contribution, and the lower Court accepting that argument has awarded to the plaintiffs a portion only of their claim against the 2nd defendant. Moreover, in awarding that portion the lower Court has taken into its consideration the value of Survey No. 1088 which, as I have said, Koneri had no right to mortgage.
3. It appears to me that the lower Court was wrong in allowing the argument on behalf of the 2nd defendant upon this point. The property, the subject of the mortgage, remains today what it was when the mortgage was made, namely, one-third of No. 1058 and a house. Survey No. 1088, in spite of Koneri's pretence to mortgage it, was never validly mortgaged, that is there was never any transfer of interest in this property from Koneri to the mortgagee. This being so, it cannot be said that there has over been any severance of the security by the act of the mortgagee. In these circumstances, Section 82 of the Transfer of Property Act cannot, in my view, be invoked so as to assist the 2nd defendant. That section provides that 'where several properties are mortgaged to secure one debt, such properties are, in the absence of a contract to the contrary, liable to contribute rateably to the debt secured by the mortgage.' This provision, however, defines the relation of the mortgagors inter se, and there is nothing in the language of the section which compels the conclusion that the mortgagee must distribute his debt in a oertain manner, or is unable to enforce it against each and every part of the property made security for the mortgage. This is pointed out in Roghu Nath Pershad v. Harlal Sadhu I.L.R. (1891) Cal. 320 and Krishna Ayyar v. Muthukumarasawmiya Pillai I.L.R. (1905) Mad. 217. I conclude, therefore, that the mortgaged property in the hands of the 2nd defendant is liable for the entirety of the mortgage debt.
[On another point his Lordship allowed the case to stand over to enable letters of administration to the estate of Britto to be procured.]
4. I agree.