Skip to content


Aley W/O Korathu Vs. Vappu Kakkaru and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKerala High Court
Decided On
Case NumberSecond Appeal No. 381 of 1960
Judge
Reported inAIR1964Ker256
ActsTransfer of Property Act, 1882 - Sections 82 and 92
AppellantAley W/O Korathu
RespondentVappu Kakkaru and ors.
Appellant Advocate T.P. Paulose and; Annamma Alexander, Advs.
Respondent Advocate S. Venkita Rajan, Adv.
Cases ReferredDamodarasami v. Govindarajulu
Excerpt:
.....n'a mortgage and the other debts and n's mortgage continued in force against both the..........purchased the properties. when execution was taken in o. s. 337/1109, the plaintiff paid off that decree debt and thereafter she filed o. s. 102/1951 for recovery of the plaint properties offering to pay one-half of the amount paid by her to the decree-holder in o. s. 337/1109, on the allegation that she had stepped into the shoes of the puisne mortgagee and had a preferential right to redeem the properties. that suit was dismissed and ext. d1 is the copy of the judgment of the high court confirming the decree of the trial court. the present suit was instituted alleging that the properties purchased under ext. p2 were liable to contribute their proportionate share of the common liability due under the decree in o. s. 337/1109.2. defendants 1 and 2 contended that the properties purchased.....
Judgment:

K.K. Mathew, J.

1. This is an appeal by the plaintiff from a decree in a suit for contribution. The facts of the case may be briefly stated. The plaint property and certain other properties belonged to one Narayanan and others. They executed a simple mortgage to one Sankara Pilial in respect of them. Subsequently they mortgaged these properties to one Kesavan Namboodiri. Sankara Pillai, the Ist mortgagee obtained a decree on the mortgage in O. S. No. 982/1097 of the Muvattu-puzha Munsif's Court, and in execution of that decree purchased the properties. Kesavan Namboodiri was not a party to that suit. He obtained a decree in O.S. 337/1109 for the amount due to him under the subsequent mortgage. The prior mortgagee Sankara Pillai was a party to his suit. Sankara Pillai sold some of the properties purchased by him in execution of the decree to the mother of defendants 1 and 2 under Ext. P 2. The remaining properties were sold by Sankara Pillai to one Raman Pillai and by successive assignments the right of Raman Pillai in the properties devolved on the plaintiff. Ext. P 4 is the copy of the sale deed dated 25-6-1121 by which the plaintiff purchased the properties. When execution was taken in O. S. 337/1109, the plaintiff paid off that decree debt and thereafter she filed O. S. 102/1951 for recovery of the plaint properties offering to pay one-half of the amount paid by her to the decree-holder in O. S. 337/1109, on the allegation that she had stepped into the shoes of the puisne mortgagee and had a preferential right to redeem the properties. That suit was dismissed and Ext. D1 is the copy of the judgment of the High Court confirming the decree of the trial court. The present suit was instituted alleging that the properties purchased under Ext. p2 were liable to contribute their proportionate share of the common liability due under the decree in O. S. 337/1109.

2. Defendants 1 and 2 contended that the properties purchased by their mother under Ext. P2 were not liable to contribute to any part of the decree debt in O. S. 337/1109 as under the sale deed in favour of the plaintiff she alone was liable to discharge that decree, and that the suit was barred by res jndicata on account of the decision in O. S. 102/1951.

3. Both the courts below have come to the conclusion that as there was a direction by the vendor in Ext. P 4 that the plaintiff should discharge the decree debt in O. S. 337/1109 out of the consideration for that sale, the plaintiff v. was not entitled to contribution from the properties purchased by the defendants' mother under Ext. P 2.

4. The question for consideration is whether the plaintiff is entitled to contribution. Section 82 of the Transfer of Property Act is as follows:

'Where property subject to a mortgage belongs to two or more persons having distinct and separate rights of ownership therein, the different shares in or parts of such property owned by such persons are, in the absence of a contract to the contrary, liable to contribute rateably to the debt secured by the mortgage, and, for the purpose of determining the rate at which each such share or part shall contribute, the value thereof shall be deemed to be its value at the date of the mortgage after deduction of the amount of any other mortgage or charge to which it may have been subject on that date ......'

It was argued for the respondents that the plaintiff, being in the position of co-mortgagor, was only entitled to work out her remedies on the basis that she was subrogated to the position of the decree-holder in O.S. 337/1109 under Section 92 of the Transfer of Property Act, and that she had no right to file a suit for contribution. It was also argued that she was not entitled to be subrogated to the position of the decree-holder in O.S. 337/1109 as she was under an obligation to discharge the decree debt in that case. On principle it must be held that subrogation is only an additional remedy available to a person entitled to contribution and that the availability of that remedy is no bar to a suit for contribution. In 'Pomenoy's Equity Jurisprudence', Vol. 2, 1905 Edn., note to Section 92, it is stated:

'Subrogation is rather an additional remedy than an additional right, and may exist concurrently with, and as a further security to, the right to a simple action for reimbursement or exoneration. The fact that a party entitled to reimbursement and also to subrogation is entitled to two disetinct remedies, seems to have been overlooked to the confusion of both doctrines.'

The same view was taken in A. Raman v. K. V. Ithapiri, AIR 1958 Ker 386. Koshi C. J., has made the following observation in his judgment:

'When a person interested only in a portion of the mortgaged property redeems the mortgage he gets two distinct rights; one for contribution and the other for subrogation......... The former right he gets under Section 82 of the Transfer of Property Act and Section 100 confers a charge by operation of law in his favour on the properties which have not contributed towards the liquidation of the debt. The other right (subrogation) is one conferred by Section 92. The two rights are independent and not mutually exclusive. It may well be that as subrogee the enforcement of the claim is barred by time, but the doctrine of subrogation is called to aid in suitable cases for the benefit of a party making the payment and it cannot be applied to the disadvantage of that party.'

5. In this case it is clear that Sankara Pillai, the auction purchaser in execution of the decree, in O.S. 982/1097 was a representative of the mortgagor, as by his purchase he got the right, title and interest of the mortgagor in these properties. By successive assignments some of the propertis purchased by him came to be vestsd in the plaintiff. In the sale deed in favour of the plaintiff there was a direction by the veador that the plaintiff should discharge the decree debt in O.S. 337/1109 out of the consideration reserved with her. In pursuance of that direction the plaiatiff had paid off the decree amount in O.S. 337/1109. Normally she should be entitled to contribution from the other properties which were also subject to the common liability. It was argued that the plaintiffs in paying the decree debt in O.S. 337/1109 was only discharging her own obligation arising out of the contract embodied in Ext. P-4, and therefore she was not entitled to get any amount by way of contribution. The question, whether a purchaser of a part of the property comprised in a mortgage, who had undertaken to discharge the mortgage debt and had discharged the same, is entitled to get contribution from the rest of the property retained by the mortgagor or purchased by others from him, has come up for consideration.

6. In Ganeshi Lal v. Thakur Charan Singh, AIR 1930 PC 183 it was held that as Section 82 has prescribed the conditions in which contributions were payable it was not proper to introduce any extrinsic principle to modify the statutory provisions. The facts of that case are briefly given in the head note:

'A mortgaged properties K and M in 1906 to one N. In May 1914 A sold property K to one S and a certain sum out of the purchase price was left with S to enable him to discharge the mortgage of 1906 and other debts of A for which his creditors had obtained decrees. Afterwards in July 1914 property M was sold to G in execution of one of the decrees obtained by creditor of A but subject to mortgage of 1906. S failed to pay off N'a mortgage and the other debts and N's mortgage continued in force against both the properties. In 1918 N sued on his mortage for sale of both properties and obtained a decree for sale. In August 1921 both properties were put for sale and were sold but before sale was confirmed S deposited the amount required to satisfy the mortgagee's claim and obtained a setting aside of the sale. S then brought a suit to compel from G as owners of property of M contribution towards the amount which S had applied in paying off N's mortgage.'

On these facts it was argued that as there was an obligation on the part of S to discharge the debt, there was no liability to make contribution. The Privy Council said:

'It would indeed be somewhat surprising if the result were otherwise. The appellants bought subject to the mortgage and paid a price for the property on that footing, and their contention really amounts to this, that having paid for the property on the basis of its being subject to the mortgage they ought now to be allowed to have the benefit of it free from the mortgage and that without making any payment towards the attainment of chat satisfactory result.

It seems to their Lordships that Section 82 is the section that governs the case and that as the Act prescribes the conditions in which contribution is payable it is not proper to introduce into the matter any extrinsic principle to modify the statutory provisions. The decision in the case to which the Subordinate Judge referred may be justified on the footing that in that case there passed to the party from whom the contribution was sought the benefit of the contract by which the money was to be applied, so that he could say:

'I have a contract which frees me from the liability to contribution which the section would otherwise impose on me.'

No such plea is available to the appellants in that case. They were not parties to the contract of 9th May 1914, nor has the benefit of that contract passed to them in law or in equity.'

It has therefore to be held that the fact that there was a contract between the vendor and the plaintiff in Ext. P-4 by which the plaintiff undertook to pay the decree debt in O.S. 337/1109 is no bar to the plaintiff claiming contribution from the properties purchased under Ext. P-2. The defendants are not entitled to take advantage of the contract made between the vendor, who stood in the position of a co-mortgagor, and the plaintiff in Ext. P-4. The expression 'contract to the contrary' occurring in Section 82 has been interpreted to mean only a contract between the mortgagor and the mortgagee and not a contract between the mortgagor and a purchaser of a portion of the equity of redemption. It has been so held by the Privy Council in the ruling cited above, and that ruling has been followed in a Full Bench of the Madras High Court reported in Damodarasami v. Govindarajulu, AIR 1943 Mad 429. It must therefore be held that the plaintiff was entitled to contribution.

7. The trial Court although it framed an issue on the question of the quantum of the liability of the plaint schedule property to contribute, has not entered any finding on that question in view of its conclusion that the suit was not maintainable. As there is no finding on the question of the amount of contribution payable, that question has to be decided. I would therefore set aside the decrees of the Courts below and direct the trial Court to decide that question and dispose of the case.

8. In the result, the decrees of the Courts below are set aside and the case is remanded to the trial Court for deciding the question above referred to and for disposing of the case. The costs of the parties both here and in the Courts below will be borne by the parties. There will be a refund of one-half the court-fees paid on the memorandum of appeal to the appellant.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //