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Ram Chandra and anr. Vs. Goswami Rajjan Lal and ors. - Court Judgment

LegalCrystal Citation
SubjectContract
CourtAllahabad
Decided On
Judge
Reported in5Ind.Cas.129
AppellantRam Chandra and anr.
RespondentGoswami Rajjan Lal and ors.
Excerpt:
contract act (ix of 1872), section 45 - validity of discharge by one co-mortgagee. - - the mortgagee brij mohan whose share in the mortgage debt had not been satisfied sold his mortgagee rights to the plaintiff-respondent rajjan lal. the main defence was that the mortgage was entirely satisfied by the sale to chandi prasad, and that brji mohan lal has no right to maintain the suit. this raises the question whether one of two mortgagees, who advanced the mortgage money equally, can give a good discharge for the entire mortgage debt without the consent of or reference to his co-mortgagee......a party, that he could not do so. in that case it was held that in the case of co-obligees of a money bond in the absence of anything to the contrary, the presumption of law is that they are entitled to the debt in equal shares as tenants-in-common. it is contended that the decision in this case is in conflict with two decisions, the first in the case of bhup singh v. zain-ul-abdin 9 a. 205. in that case, however, it will be seen that the bond with which the judgment was concerned was described as a joint bond, and not a mortgage as in this case, to which the mortgagees contributed their money equally. the same is to be said of the other decision in barbar martin v. ramana goundan 20 m. 461. in that case the money due upon a mortgage was paid to one of two mortgagees who gave an.....
Judgment:

1. This appeal arises out of a suit for sale on a mortgage under the following circumstances: One Thakur Das executed a mortgage-deed of the property in (sic) in favour of Chandi Prashad and Brij (sic) Lal on the 2nd of July 1898, each of (sic) mortgagees providing half of the advance. (sic) of April 1901, Thakur Das sold his (sic) redemption in the mortgaged property to the mortgagee Chandi Prashad, the amount of the purchase money being more than sufficient to satisfy the mortgage-debt in full. Brij Mohan Lal was no party to that ' transaction. Chandi Prashad then sold the property to the appellants on this appeal. The mortgagee Brij Mohan whose share in the mortgage debt had not been satisfied sold his mortgagee rights to the plaintiff-respondent Rajjan Lal. Rajjan Lal then brought the suit out of which this appeal has arisen for recovery by sale of the mortgaged property of the portion of the mortgage debt to which Brij Mohan Lal was originally entitled. The main defence was that the mortgage was entirely satisfied by the sale to Chandi Prasad, and that Brji Mohan Lal has no right to maintain the suit. This raises the question whether one of two mortgagees, who advanced the mortgage money equally, can give a good discharge for the entire mortgage debt without the consent of or reference to his co-mortgagee. It was decided in the case of Manzur Ali v. Mahmud-un-nissa 25 A. 155, to which one of us was a party, that he could not do so. In that case it was held that in the case of co-obligees of a money bond in the absence of anything to the contrary, the presumption of law is that they are entitled to the debt in equal shares as tenants-in-common. It is contended that the decision in this case is in conflict with two decisions, the first in the case of Bhup Singh v. Zain-ul-Abdin 9 A. 205. In that case, however, it will be seen that the bond with which the judgment was concerned was described as a joint bond, and not a mortgage as in this case, to which the mortgagees contributed their money equally. The same is to be said of the other decision in Barbar Martin v. Ramana Goundan 20 M. 461. In that case the money due upon a mortgage was paid to one of two mortgagees who gave an acquittance without the knowledge of the other mortgagee and it was held that the mortgage was discharged, and the plaintiff who brought his suit to recover his share of the mortgage debt, which had not been paid to him, was not entitled to sue. In that case too, as appears from the judgment, the money was advanced by persons who were jointly Entitled to it, and not severally. The learned Judges, who decided it, observe in their judgment: 'The question raised by this appeal is whether a payment made to one of two persons jointly entitled under a mortgage bond can be pleaded as a valid discharge of the debt in an action brought by the other person interested in the bond.' We are of opinion that the case of Munzur Ali v. Mahmud-un-nusa 25 A. 155, was rightly decided and we do not think that we ought to go behind it. We, therefore, dismiss the appeal with costs.


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