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Sadashiv Shivbasappa Burje Vs. Govind Virpax Ambi - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case NumberSecon Appeal No. 238 of 1942
Judge
Reported inAIR1945Bom351; (1945)47BOMLR114
AppellantSadashiv Shivbasappa Burje
RespondentGovind Virpax Ambi
DispositionAppeal allowed
Excerpt:
.....his share of mortgage dept-whether whole property liable to sale.; where one of two mortgagees purchases the equity of redemption of the mortgaged property, without obtaining the consent of his co-mortgagee, the co-mortgagee is entitled to bring the whole of the mortgaged property to sale to recover his half share of the mortgage debt.; mohan lal v. prasadi lal (1922) i.l.r. 45 all. 46 , dissented from.; arunachalam chetty v. ramasamy ayyar [1928] a.i.r. mad. 933, referred to. - - on that ground alone the plaintiffs' suit to sell the whole property should have failed. and i find that sir dinshah mulla in his well-known treatise on the transfer of property act at p......of both the deeds; and the plaintiff filed the suit, as i have stated, to recover his share of the mortgage debt and to bring the mortgaged property to sale.2. there is no dispute in this second appeal as to the amount due to the plaintiff on the mortgage which has been decreed by both the lower courts. the dispute arises as to whether the plaintiff is entitled to bring the whole of the mortgaged property to sale or only a half of it. both the lower courts have taken the view that as the plaintiff was suing in respect of half the mortgage debt, he was entitled to bring only half the mortgaged property to sale. now it is necessary to emphasize the indivisible character of the mortgage security. section 67, sub-clause (d), of the transfer of property act, does not authorize a person.....
Judgment:

Chagla, J.

1. This appeal arises out of a suit filed by the plaintiff to recover the amount due with reference to his share on a mortgage dated May 3, 1925, and a further charge dated June 19, 1926. It seems that the father of defendant No. 1 executed these two deeds in favour of defendant No. 2 and one Narsappa. The plaintiff is the assignee of Narsappa. Defendant No. 2 purchased the equity of redemption of the property, the subject-matter of both the deeds; and the plaintiff filed the suit, as I have stated, to recover his share of the mortgage debt and to bring the mortgaged property to sale.

2. There is no dispute in this second appeal as to the amount due to the plaintiff on the mortgage which has been decreed by both the lower Courts. The dispute arises as to whether the plaintiff is entitled to bring the whole of the mortgaged property to sale or only a half of it. Both the lower Courts have taken the view that as the plaintiff was suing in respect of half the mortgage debt, he was entitled to bring only half the mortgaged property to sale. Now it is necessary to emphasize the indivisible character of the mortgage security. Section 67, Sub-clause (d), of the Transfer of Property Act, does not authorize a person interested in part only of the mortgage-money to institute a suit relating only to a corresponding part of the mortgaged property unless the mortgagees have, with the consent of the mortgagor, severed their interests under the mortgage. Therefore the normal ordinary rule is that the mortgagee must sue in respect of the whole mortgage debt and must seek to enforce his security against the whole of the mortgaged property. Now in this case the mortgagee cannot sue in respect of the whole of the mortgage debt because his co-mortgagee having purchased the equity of redemption, the other half of the mortgage debt which belonged to defendant No. 2 was merged when the equity of redemption was purchased. But that does not mean that the mortgagee was compelled to enforce his mortgage debt only against one-half of the security. If the mortgage security is indivisible, as I have stated, then the security for the whole of the debt or any part thereof was the whole of the mortgaged property and not merely any part thereof, and it was not open to the plaintiff's co-mortgagee by purchasing the equity of redemption to reduce his security from the whole of the property to only a half. There is no suggestion here that the plaintiff had consented to defendant No, 2 purchasing the equity of redemption and his looking to only half the property as security for his debt. The lower appellate Court has taken the view that it will be inequitable to allow the plaintiff to proceed against the entire mortgaged property; and it has relied on a decision in Mohan Lal v. Prasadi Lal I.L.R(1922) All. 45. In that case one-half of the mortgaged property had been purchased by one of the co-mortgagees of the plaintiffs and the plaintiffs came to Court seeking to bring to sale the whole of the property in satisfaction of their share of the mortgage debt. The Court consisting of Mr. Justice Stuart and Mr. Justice Sulaiman held that the plaintiffs were only entitled to bring to sale a portion of the property corresponding to what was found as a fact to be the share of the mortgage debt to which they were entitled. Now it is important to note that although the plaintiffs were seeking to sell the whole of the property, their co-mortgagee who had purchased the equity of redemption was not made a party to the suit. It is difficult to understand how in the absence of that co-mortgagee the plaintiffs could have obtained a decree for the sale of the whole of the property. On that ground alone the plaintiffs' suit to sell the whole property should have failed. But in so far as the learned Judges take the view that a co-mortgagee can only enforce his part of the mortgage debt against a corresponding share of the mortgaged property if the other co-mortgagee has been paid off without the consent of the former co-mortgagee, with great respect to the learned Judges I do not agree with the view taken by them; and I find that Sir Dinshah Mulla in his well-known treatise on the Transfer of Property Act at p. 423 in referring to this case takes the view that the decision is erroneous and is contrary to the principle that a mortgage interest cannot be severed without the consent of all mortgagees and mortgagors. In Arunachalam Chetty v. Ramasamy Ayyar : AIR1928Mad933 one of the two co-mortgagees accepted in full satisfaction of the mortgage an amount less than the amount due. He was also directed to pay the co-mortgagee his share of the debt. The other co-mortgagee had not consented to the arrangement and, therefore, sued to enforce, against the whole of the mortgaged property, his share of the debt; and the Court consisting of Mr. Justice Phillips and Mr. Justice Devadoss held that the suit was maintainable.

3. Mr. Belvi for respondent No. 2 has urged that the decree taken before the trial Court was really a consent decree and the parties agreed to the form in which the decree should be taken and, therefore, no appeal lay from a consent decree. Now as far as I can see from the judgment of the trial Court, both the learned pleaders on behalf of the plaintiff and defendant No. 2 seem to have admitted that the position in law as laid down in Mohan Lal v. Prasadi Lal was correct; and having taken that in view, they agreed that a decree should be passed only against half of the property. But the decree was not a consent decree nor does the decree so state; and when the matter went to the lower appellate Court in appeal, no objection was taken on behalf of the respondents that no appeal lay from a consent decree. An admission on a question of law by a pleader does not bind his client; and whatever his learned pleader might have admitted before the trial Court, it is open to his learned advocate before me to urge the contrary view.

4. I, therefore, allow the appeal and vary the decree of the trial Corut to the extent that in default of payment of the amount decreed, the whole of the mortgaged property should be sold.

5. Defendant No. 2 must pay the costs of this appeal and of the appeal before the lower appellate Court.


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