Krishnan Pandalai, J.
1. The question is whether the suit brought by the petitioners (plaintiffs) embraces two or more distinct subjects within the meaning of Section 17 of the Court Fees Act so as to require them to pay Court-fees separately on each of the said subjects.
2. The suit is on a mortgage in favour of the nine plaintiffs for a total sum of Rs. 38,376-4-8 and interest thereon mortgaging all the properties of the defendants who had been traders and in the course of trade became indebted to the nine plaintiffs in different sums which together made up the total mortgage principal. In one sense, i.e., before the mortgage, it is quite true that the plaintiffs had only separate claims against their debtor. That is the sense in which the Lower Court's opinion that the claim of each of the plaintiffs in the mortgage amount is a separate subject is right. But that by no means concludes the question whether the creditors having taken for their common protection a mortgage for the entire sum due to them, there does not thereby a new and independent cause of action common to them all no doubt springing from their former and separate claims but distinct from it to enforce the mortgage as a whole for their common benefit and share rateably in the proceeds. That that was the intention is clear from the facts. The Lower Court has ignored the aspect of the matter that whatever the rights of the creditors before the mortgage, they have individually under the mortgage no priority against each other, and are not entitled to claim the whole of their dues from the proceeds of the security but must share them rateably according to the sums due to each as set out in the deed. There is nothing in the deed expressly enabling each of the nine plaintiffs to sue for his own dues under the mortgage or the mortgagors to redeem the security in parts by paying each of the plaintiffs separately. The suit is for the entire amount against the whole property. The case is analogous to a suit by trustees or the holders of debentures of a series, secured by a mortgage in which case the suit to enforce the security must be brought on behalf of all and the Court will not give judgment in favour of one such holder as by so doing he will be put in a better position than the others, f Simonson on Debentures, 4th Edition, pp. 349 and 350 citing In re Uruguay Central and Hygneritas Railway Company of Monte Viedo (1879) 11 Ch. D. 372 and Hope v. Croydon and Norwood Tramways Company (1887) 34 Ch. D. 730
3. The case cited by the learned Judge in Seth Bansiram Jashamal v. Gunnia Naga Aiyar : AIR1930Mad985 is not in point. That was a case where one of several mortgagees to whom separate amounts were due as tenants-in-common sued for the amount due to himself and the question was whether he could maintain a suit for part of a mortgage money or must sue for the whole. It was held relying on Sunitibala Debi v. Dhara Sundari Debt Chowdhurani that Section 67 of the Transfer of Property Act is not a bar to such a suit and it followed that the plaintiff could not be asked to pay Court-fees on the amount due to the other mortgagees for which be did not sue. That decision does not touch the question whether in a suit brought for the entire amount due on a mortgage by persons who though as between themselves entitled to portions of that amount have a common interest in the whole Court-fees should be paid on the whole sum as one claim or on the several portions as separate claims. In such a case it seems to me incorrect to say that because separate suits by each sharer may be possible, when a suit for the whole amount due on a mortgage is brought by all mortgagees together the suit embraces not one subject but as many different subjects as there are persons entitled to the proceeds of the mortgage. If such were the case a suit on a mortgage taken by the heirs of a deceased Mahomedan for a debt due to him, on the proceeds of which they are ex hypo the is entitled to distinct shares, would be one embracing not one subject but distinct subjects. This would in my opinion be straining the language of the section in view of the decisions referred to by the learned Judge which show that even where a plaintiff could have brought different suits, e.g., for the price of goods sold on different dates, a suit for the price of a series of sales is one subject for the purpose of Court-fees. See also Parameswara Pattar, In re I.L.R.(1930) 54 M. 1 : 59 M.L.J. 469 and the decision in The Rajah of Visianagram v. The Government : (1932)63MLJ73 .
4. The order of the learned Judge is set aside. The costs of this petition will be costs in the cause and will be provided for in the decree.