Skip to content


Papala Chakrapani Chetti Vs. Latchmi Achi L.R. of the Deceased 1st Respondent Subramania Chettiar - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported in45Ind.Cas.769; (1918)35MLJ309
AppellantPapala Chakrapani Chetti
RespondentLatchmi Achi L.R. of the Deceased 1st Respondent Subramania Chettiar
Cases ReferredRam Shankar Lal v. Ganesh Prasad I.L.R.
Excerpt:
- - this proposition is clearly unsound in principle and has been negatived by authority of this court......us was that the plaintiff's sub-mortgage does not now legally affect the property covered by the original mortgage which it purported to charge, that mortgage having been discharged by the substitution of two mortgages, exs. c and d covering distinct portions of the property and executed by two different branches of the family, both documents being executed in ignorance of the sub-mortgage in favour of the plaintiff's predecessor-in-title. we have asked the learned vakil for authority for the proposition that a sub-mortgage executed without notice to the mortgagor was invalid or that such a sub-mortgage could be rendered inoperative except by redemption of the mortgaged property, and he has been unable to give us any such authority. he has contended, however, that substitution must.....
Judgment:

1. This second appeal comes before us for rehearing so far as the 12th respondent is concerned, our judgment in S.A. No. 2592 of 1914 and the decree being to that extent set aside. The points arising have now been re-argued on behalf of that respondent. With regard to the question of proof of the sub-mortgage sued on we do not think it necessary to say more than that we consider the proof sufficient. The point most strongly pressed on us was that the plaintiff's sub-mortgage does not now legally affect the property covered by the original mortgage which it purported to charge, that mortgage having been discharged by the substitution of two mortgages, Exs. C and D covering distinct portions of the property and executed by two different branches of the family, both documents being executed in ignorance of the sub-mortgage in favour of the plaintiff's predecessor-in-title. We have asked the learned Vakil for authority for the proposition that a sub-mortgage executed without notice to the mortgagor was invalid or that such a sub-mortgage could be rendered inoperative except by redemption of the mortgaged property, and he has been unable to give us any such authority. He has contended, however, that substitution must have the same operation as redemption, the interest affected having been destroyed. This proposition is clearly unsound in principle and has been negatived by authority of this Court. It was laid down in Jones v. Gibbons (1804) 9 Ves. 407 : 32 E.R. 659 that there is no necessity to give' notice of an assignment to the mortgagor (vide also Fisher on Mortgages, page 631 and White and Tudor's Leading Cases in Equity, 7 Edn., Vol. II, page 38, where the cases are collected). In Matthews v. Wallwyn (1798) 4 Ves 118 : 31 E.R. 62, it was held that the only rights of a mortgagor without notice of the assignment are that the assignee holds subject to the account between him and the original mortgagee. This latter proposition was reaffirmed in Chambers v. Goldwin (1804) 9 Ves 254 : 32 E.R. 600 This principle applies both to payments made prior -to the assignment and to those subsequent to it. Vide Halsbury's Laws of England, Volume 21, page 179 and Dixon v. Winch (1900) L.R. 1 Ch. 736 where the limits of the doctrine were considered. As pointed out in our previous, judgment the case in Narayana Mudali v. Raghavammal (1907) 18 M.L.J. 462 is a direct authority on the point argued before us. It was there held that a subsequent mortgage in consideration of further advances to the mortgagor, although it might operate as a merger of the earlier mortgage as between the original mortgagor and mortgagee, ' could not prejudice the rights of the sub-mortgagee or affect his rights to bring the mortgagee's rights under the earlier mortgage to sale. ' The right to the 'state of account ' between the original parties was also recognised, but in that case as in this, it was found that the mortgagor had paid nothing. The next point taken was that the sub-mortgagee could not bring a suit for sale of some of the items covered by the original mortgage which items alone were sub-mortgaged to him by Ex. B. There is nothing in this objection. The rights of a sub-mortgagee are stated in a decision of a Full Bench of the Allahabad High Court in Ram Shankar Lal v. Ganesh Prasad I.L.R. (1908) A. 385 as follows :-A sub-mortgagee is entitled to a decree for sale of the mortgagee rights of his mortgagor subject to the right of redemption by the original mortgagor. In this case the right of the original mortgagee was to bring any one of the properties to sale for the amount of his debt. His right with regard to some of those properties he has assigned by way of sub-mortgage for a sum less than the amount covered by the original mortgage and it is now vested in the plaintiff. The plaintiff has therefore the right to sell the mortgagee's rights against those particular properties for the whole amount due to him and the mortgagor's remedy against him is just what he would have against the original mortgagee if the latter sought to enforce his debt against those particular properties-namely, to redeem by paying the amount due and sued for. We must therefore set aside the decree of the lower appellate court with costs payable by the 12th respond' ent both here and in the lower appellate court, and restore the decree of the District Munsif. Time for redemption is extended for three months from this date.


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