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Hanumanthaiyan Vs. Meenatchi Naidu and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported in(1912)22MLJ12
AppellantHanumanthaiyan
RespondentMeenatchi Naidu and anr.
Cases ReferredSeetharama v. Venkatakrishna I.L.R.
Excerpt:
- - -(1) where there are two mortgages on a property and a person advances money for the payment of the first mortgage and that debt is satisfied, would the lender be entitled to stand in the shoes of the first mortgagee and claim priority if he had no interest in the mortgaged property either as purchaser of the equity of redemption or as mortgagee at the time of the advance, and (2) whether it is necessary that the first mortgage should be entirely discharged before the claim to priority over the 2nd mortgagee can be sustained. this is very clearly pointed out in gurdeo singh v......of persons would be entitled to rank as first incumbran-cers with reference to different sums of money advanced by them, and it would be impossible to work out the rights of the parties. this is very clearly pointed out in gurdeo singh v. chandrikah singh and chandrikah singh v. rashbehary singh (1907) 5 c.l.j. 611 ; and in jones on mortgages, para. 885 b. the learned vakil for the appellant has relied on several rulings of this court for the contrary position. the cases relied on are rupabai v. audimulam i.l.r. (1887) m. 345. gangadhara v. sharama i.l.r. (1884) m. 246 and seetharama v. venkatakrishnier i.l.r. (1891) m. 94. in rupabai v. audimulam i.l.r. (1887) m. 345, the learned judges state, at p. 354,that the whole of the prior charge was released and the same appears to have been.....
Judgment:

1. In this case there are two questions raised before us:-(1) where there are two mortgages on a property and a person advances money for the payment of the first mortgage and that debt is satisfied, would the lender be entitled to stand in the shoes of the first mortgagee and claim priority if he had no interest in the mortgaged property either as purchaser of the equity of redemption or as mortgagee at the time of the advance, and (2) whether it is necessary that the first mortgage should be entirely discharged before the claim to priority over the 2nd mortgagee can be sustained. In this case only a portion of the mortgage money due under the first mortgage was paid and the first mortgage was not entirely discharged. We think there can be no doubt on principle that before a person advancing money for the purpose of discharging the debt due under the first mortgage can establish his claim to the rights of the first mortgagee it must be shown that the first mortgage had been extinguished. Otherwise the result would be that a number of persons would be entitled to rank as first incumbran-cers with reference to different sums of money advanced by them, and it would be impossible to work out the rights of the parties. This is very clearly pointed out in Gurdeo Singh v. Chandrikah Singh and Chandrikah Singh v. Rashbehary Singh (1907) 5 C.L.J. 611 ; and in JONES on Mortgages, para. 885 b. The learned vakil for the appellant has relied on several rulings of this court for the contrary position. The cases relied on are Rupabai v. Audimulam I.L.R. (1887) M. 345. Gangadhara v. Sharama I.L.R. (1884) M. 246 and Seetharama v. Venkatakrishnier I.L.R. (1891) M. 94. In Rupabai v. Audimulam I.L.R. (1887) M. 345, the learned Judges state, at p. 354,that the whole of the prior charge was released and the same appears to have been the case in Gangadhara v. Sivarama I.L.R. (1884) M. 246. The facts of Seetharama v. Venkatakrishna I.L.R. (1891) M. 94, so far as they appear from the report, are not very clear, but supposing that the case is authority for the proposition contended for by the appellant it would seem that the question was not properly discussed before the learned Judges and they give no reasons in support of their view. On this point therefore the appeal fails even if the other proposition advanced on behalf of the appellant be held to be sound, as to which we do not express any decided opinion. The appeal is dismissed with costs.


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