1. One Pillayar Dikshitar and defendants 1 to 4, his sons, executed a mortgage deed for Rs. 7,000 in favour of one Venkatasubbier on 15th April, 1909. Again on 24th May, 1911, the said Pillayar Dikshitar and the 2nd defendant executed a mortgage for Rs. 1,500 in favour of the same person. Lands of two villages were mortgaged under these documents, i.e., Parameswaramangalam and Koothavakkam. There was a third mortgage on 6th August, 1912, in favour of the plaintiff's brother, Raghava Reddi. He filed a suit on his mortgage, obtained a decree and purchased Koothavakkam village. He is now dead and the plaintiff is the owner of the equity of redemption of Koothavakkam village. On 6th December, 1920, the plaintiff obtained a transfer of the first two mortgages and has now brought a suit to enforce them. In the deed of assignment the amount due on the two mortgages is said to have been Rs. 18,718, but the price paid by the plaintiff for the assignment was only Rs. 6,000. The Subordinate Judge has given the plaintiff a decree against defendants 1 to 8 for half of the suit amount against Parameswaramangalam village, holding that the property in plaintiff's possession was equal in value to the remainder of the mortgage property. A number of defendants were impleaded in the suit as having an interest in the mortgage properties. The decree was passed only against defendants 1 to 8, members of the mortgagor's family, and now defendants 5 to 8 alone appeal.
2. The appellants' contention is that the plaintiff's only remedy is under Section 95 of the Transfer of Property Act for contribution, he having redeemed the mortgage and being one of the mortgagors. It has been held by the Privy Council in Ahmad Wali Khan v. Shamsh-ul-Jahan Begam I.L.R. (1906) A. 482 : 33 I.A. 81 : 1906 16 M.L.J. 269 that Section 95 is not applicable to usufructuary mortgages alone, but is also applicable to simple mortgages. Under Section 101 of the Transfer of Propetty Act where the owner of a charge or other incumbrance on immoveable property ,is or becomes absolutely entitled to that property the charge or incumbrance shall be extinguished. When, therefore, the plaintiff as the owner of Koothavakkam village paid off all the encumbrances, those mortgages became extinguished, unless it is a necessary implication that they should subsist for the plaintiff's benefit. His contention that he can bring a suit upon these mortgages is prima facie untenable, for under Order 34 of the Civil Procedure Code he would be bound to implead himself as a defendant, as being a person interested in the mortgage property as owner thereof. Such a position would be absurd and consequently the legislature has enacted Section 95 of the Transfer of Property Act which gives to one of several mortgagors who redeems the mortgage property a charge on the share of each of the other co-mortgagors. It is contended for the respondent that the application of Section 95 of the Transfer of Property Act must be restricted to mortgagors in the sense of persons who have actually executed the mortgage deed and does not include their heirs or assigns. No authority is cited for such a proposition, whereas there is authority against it in Vithal Nilkanth Pinjale v. Vishvasrav I.L.R. (1884) B. 497 and Nainappu Chetti v. Chidambaram Chetti I.L.R. (1897) M. 18. The plaintiff, therefore, as the purchaser of a portion of the mortgage property must be deemed to be one of the mortgagors.
3. It is further argued that Section 95 does not preclude the mortgagor from suing on his mortgage, but as I have pointed, out prima facie such a suit would be impossible and the only authority that can be suggested as being in favour of it is the decision of the Privy Council in Ayyareddi v. Gopalakrishnayya I.L.R. (1923) M. 190 : 51 I.A. 140 : 1923 46 M.L.J. 164. In that case the circumstances were somewhat peculiar and payments made to the second mortgagee, which were made after he had obtained a decree, were held not to be payments in discharge but payments in respect of the purchase of the mortgage right. In that case also the payment had been made by the defendants, who were allowed to put forward the rights under the mortgage as a shield against other encumbrancers. The right of a defendant to use a prior mortgage which he has discharged as a shield against puisne encumbrancers is well recognised and in the present case the plaintiff could use his charge under the two mort gages as a shield against puisne encumbrancers provided that there was no personal liability on his part to pay the subsequent encumbrancers. This is not an authority for holding that a suit can be brought upon the mortgages against the co-mortgagors. There are some remarks in the judgment of Ramesam, J., in Sundarammal v. Sundara Reddi (1927) 38 M.L.T. 148 which seem to support the appellant's proposition, but they are obiter dicta and the circumstances of that case were somewhat exceptional. If the learned Judge intended to hold that a mortgagor who had redeemed a mortgage is entitled to sue his co-mortgagor on the same, with all respect I must differ; and I am supported by the decision of this Court in Iyathurai Aiyar v. Kuppumuthu Padayachi (1918) 9 L.W. 120. The argument that the plaintiff obtained a good bargain for himself by getting an assignment of the mortgages for one-third their value and should not be deprived of the benefit of his bargain cannot affect the question of law. It is questionable whether in the present suit the plaintiff should be allowed to obtain a decree for contribution, but as this is not seriously disputed the suit may be treated as one for contribution under Section 95 of the Transfer of Property Act. As regards the amount of contribution to which he is entitled the Subordinate Judge has treated the properties of which the plaintiff is the owner and the properties of which defendants 1 to 8 are the owners as equal in value relying on a sale-deed for the former (Ex. 39). He has, however, omitted to notice that that sale-deed is only of seven-tenths of the Koothavakkam lands which were to be sold for Rs. 10,500. This would make the total value of the lands Rs. 15,000. The description of the lands in Ex. 39 is such that they are clearly the lands mortgaged. It has been found and is not now disputed that Parameswaramangalam lands are worth only Rs. 12,000. The plaintiff is, therefore, entitled to recover from the appellants four-ninths of the Rs. 6,000 paid by him for redemption, namely Rs. 2,666-10-8. He also claims interest on the amount paid. In the circumstances I think interest at 6 per cent, on the sum of Rs. 2,666-10-8 may be allowed from the date of assignment till the date of suit.
4. So far as defendants 5 to 8 are concerned the lower Court's decree will be modified by giving a charge for the above amount alone on the Parameswaramangalam properties in their possession with 6 per cent, interest up to the date of payment. Time 6 months.
5. The plaintiff will pay the costs of this appeal, and in the lower Court plaintiff and defendants 5 to 8 will pay and receive proportionate costs. As between defendants 1 to 8, defendants 5 to 8 are liable only for one-fifth of Rs. 2,666-10-8.
6. I agree and have nothing to add.