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Mootha Mohanraj Sowcar Vs. Manicka Goundar and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Reported inAIR1956Mad467; (1956)2MLJ77
AppellantMootha Mohanraj Sowcar
RespondentManicka Goundar and ors.
Cases ReferredMuhammad Rafiz v. Muhammad Zakariya
Excerpt:
.....is whether by the failure on the part of the mortgagee to include his claim under the present suit mortgage exhibit p-1 in his earlier suit o. where, indeed, the whole aim and object of the legislature would be plainly defeated if the command to do the thing in a particular manner did not imply a prohibition to do it in any other, no doubt can be entertained as to the intention. but there being no penalty provided for non-compliance and no consequence being stipulated for failure to observe the provision, it becomes necessary to consider what is intended by the legislature. 502 of 1941 instituted on the mortgage exhibit b-1 and he having failed to take that objection and allowed the mortgagee to proceed with the suit and obtain a decree on the assumption that no validity attached..........sons, defendants 2 and 4, executed in favour of one kuppuswami chetty a simple mortgage of the suit properties on 27th january, 1931, under exhibit p. 1 for a sum of rs. 1000. it is stated in the document that the sum of rs. 1000 was required for discharging a decree debt due to one ganeshmul sowcar by the first defendant. another simple mortgage was executed earlier on 20th january, 1931, by the first defendant for himself and on behalf of his minor sons in favour of the same mortgagee kuppuswami chetty over certain properties of his for a similar sum of rs. 1000. after kuppuswami chetty's death his widow kamalammal instituted a suit o.s. no. 502 of 1941 on exhibit b-1 and obtained a decree on 22nd august, 1942 and took proceedings for realisation of the mortgage amount. she.....
Judgment:

Krishnaswami Nayudu, J.

1. This appeal arises out of a suit on a mortgage and the main question to be considered is whether the suit is not maintainable by virtue of Section 67-A of the Transfer of Property Act introduced by the Amending Act of 1929. The 8th defendant is the appellant. The first defendant for himself and as guardian of his minor sons, defendants 2 and 4, executed in favour of one Kuppuswami Chetty a simple mortgage of the suit properties on 27th January, 1931, under Exhibit P. 1 for a sum of Rs. 1000. It is stated in the document that the sum of Rs. 1000 was required for discharging a decree debt due to one Ganeshmul Sowcar by the first defendant. Another simple mortgage was executed earlier on 20th January, 1931, by the first defendant for himself and on behalf of his minor sons in favour of the same mortgagee Kuppuswami Chetty over certain properties of his for a similar sum of Rs. 1000. After Kuppuswami Chetty's death his widow Kamalammal instituted a suit O.S. No. 502 of 1941 on Exhibit B-1 and obtained a decree on 22nd August, 1942 and took proceedings for realisation of the mortgage amount. She assigned the suit mortgage Exhibit P-1 on 21st June, 1943, by Exhibit P-3 to the plaintiff. The plaintiff has therefore instituted the suit as assignee-mortgagee of Exhibit P-1. Pleas were raised questioning the truth and validity of the assignment and about the absence of consideration for the mortgage. It was also contended that the suit was barred by limitation. All these contentions were held against by both the Courts and I am unable to find any ground for interfering with those findings. The objection under Section 67-A of the Transfer of Property Act was taken, which was also negatived by the lower Court, the contention being that under Section 67-A, Kamalam-mal should have sued on both the mortgages when she instituted the suit O.S. No. 502 of 1941 on Exhibit B-1 and she must also have included in the suit claim the suit mortgage Exhibit P-1 though the suit mortgage related to different sets of properties than those secured under the earlier mortgage Exhibit B-1, the mortgagee and the mortgagors however being the same.

2. Section 67-A provides that a mortgagee who holds two or more mortgages executed by the same mortgagor in respect of each of which he has a right to obtain the same kind of decree under Section 67, and who sues to obtain such decree on any one of the mortgages, shall, in the absence of a contract to the contrary, be bound to sue on all the mortgages in respect of which the mortgage money has become due. When O.S. No. 502 of 1941 was instituted, the objection which was open to the mortgagors under Section 67-A regarding the maintainability of that suit was not taken and the learned Subordinate Judge took the view that the plea should have been taken in the first suit itself and since Section 67-A was intended to protect the mortgagors from being harassed by too many suits and to adjust all claims between the mortgagors and the mortgagee and since the mortgagors failed to raise the plea in the first suit, they must be considered to have waived their right and therefore the present suit could not be said to be not maintainable and that moreover as no penalty was provided for non-compliance with the provisions of Section 67-A, the suit could not therefore be dismissed in limine. Section 67-A obviously was intended to protect the interests of the mortgagor.

3. Section 61 of the Transfer of Property Act entitles a mortgagor, who has executed two or more mortgages in favour of-the same mortgagee, to redeem, in the absence of a contract to the contrary, when the principal money of any two or more of the mortgages has become due, any one such mortgage separately, or any two or more of such mortgages together. This section was intended to statutorily recognise the abolition of the doctrine of consolidation of mortgages and it is based on Section 17 of the Conveyancing Act, 1881, corresponding to Section 93 of the Property Act, 1925. The law in England before the Conveyancing Act was that a mortgagee was entitled to consolidate all the securities in his hands and compel the mortgagor to redeem all of them or none. This was considered to cause a hardship to the mortgagor and was therefore set right by Section 17 of the Conveyancing Act, 1881. Section 61 of the Transfer of Property Act therefore was based on the corresponding English provision to enable the mortgagor to redeem anyone or more mortgages or simultaneously all the mortgages. The present Section 62 is an improvement on the earlier provision as it stood before the Amending Act, XX of 1929. The earlier provision entitled the mortgagor to redeem any one mortgage without the mortgagee demanding monies due on mortgages of properties other than the one which the mortgagor seeks to redeem. But the reference to property has been omitted by the amendment; so much so if a mortgagor has executed more than one mortgage in respect of the same property or executed more than one mortgage in respect of different properties, the right to redeem any one of them is clearly conferred on the mortgagor by this amended provision. The object of enacting Section 67-A, as could be seen from the report of the Special Committee, was to extend the doctrine enacted in Section 61 and compel the mortgagee not to institute separate suits on the mortgages held by him from the same mortgagor but sue on all the mortgages.

4. That the principle of Section 67-A is to be inferred from the right granted to the mortgagor under Section 61 was the view taken by the Madras High Court in Duraiswami v. Venkataseshayya : (1901)11MLJ373 . In that case, in 1880, B executed a simple mortgage over certain lands in favour of A. In 1886, B mortgaged the same lands to A with possession. A brought a suit on the earlier mortgage for sale of the mortgaged property subject to the later mortgage. It was held that the suit could not be maintained and it was observed in the judgment at page 115 that Section 61 of the Transfer of Property Act implies that if the different mortgages are in favour of one and the same person, not in respect of different properties, but over the same property, the mortgagor cannot seek to redeem any one mortgage without redeeming the additional mortgages also and the same principle will be equally applicable to a mortgagee, having several mortgages over the same property, seeking to obtain an order for sale on one mortgage only.

5. This decision was followed in Nattu Krishnamachariar v. Anangarachariar (1907) 17 M.L.J. 301 : I.L.R. Mad. 353. In Balasubramania Nadar v. Sivaguru Asari (1909) 21 M.L.J. 562 Sir Charles Arnold White, C.J., after quoting a passage from the Judgment in Duraiswami v. Venkataseshayya : (1901)11MLJ373 , referred to above, observed that that seemed to be a correct exposition of the law.

6. In Subratmnia v. Balasubramania (1915) 29 M.L.J. 195 : I.L.R. Mad. 927 , it was held by a Full Bench of this Court that it was open to a mortgagee to bring a suit for the recovery of his debt by sale of the properties mortgaged to him subject to his interest in a prior mortgage, and the principle of Section 61, which was applied to a suit for sale on the mortgage by a mortgagee holding more than one mortgage on the same property, was held not to be a sufficient ground for refusing to allow a mortgagee suing on a puisne mortgage to sell subject to a prior mortgage in his favour. Sadasiva Ayyar, J., suggested to the Legislature that Section 61 of Act IV of 1882 might be replaced by a section enacting that all consolidation even in the case where the mortgagee and mortgagor are the same persons and the property is the same is abolished. The view of the learned Judge was that the principle of consolidation which was abolished in the case of suits for redemption by a mortgagor who has mortgaged the same property in favour of the same mortgagee more than once should be applied to a suit for sale compelling the mortgagee who had several mortgages over the same property from the same mortgagor not to institute more than one suit. The reason for requiring the mortgagee to enforce all the mortgages which he holds in his favour on the same property from the same mortgagor is that a sale of property subject to other mortgages is not likely to realise a fair price and would cause hardship to a mortgagor. In order to prevent such hardship, it was found necessary to extend the principle of Section 61 to suits for sale by mortgagees, who held several mortgages over the same property from the same mortgagor. Section 61 was amended by Act XX of 1929 so as to confer on a mortgagor the right to redeem any one mortgage if he has executed more than one mortgage in favour of the same mortgagee not necessarily on the same property but on different properties, and in view of the necessity for extending this principle to a suit for sale by a mortgagee under similar circumstances, on the principle that right of redemption and foreclosure are co-extensive, and also to avoid hardship to the mortgagor, Section 67-A was enacted. In order to prevent the hardship that was considered to result to the mortgagor by permitting the mortgagee to bring separate suits on two or more mortgages over the same property from the same mortgagor, the section was so framed as to compel the mortgagee not only to institute one suit on all the mortgages held over the same property from the same mortgagor, but also compel him to sue on all the mortgages held over different properties but from the same mortgagor. The extension of the principle in Section 61 was only found necessary, as could be seem from the observations in the Judgment of the Full Bench in Subratnania v. Balasubramania (1915) 29 M.L.J. 195 : I.L.R. 38 Mad. 927 , only in cases where the same mortgagee held separate mortgages over the same property from the same mortgagor and not separate mortgages on different properties from the same mortgagor. I do not consider that this extension of the principle by enacting Section 67-A to cases where a mortgagee holds two or more mortgages over different properties from the same mortgagor does really benefit the mortgagor in any manner, as separate suits would be more convenient and in any event not harmful to the mortgagor. For instance, if a mortgagor has a number of properties and has been borrowing from the same mortgagee by executing different mortgages on these several properties, the mortgagor would not welcome a single suit on all the mortgages, as it will amount to a demand of all his mortgage liabilities at the same time, which will be most inconvenient to him and cause considerable hardship. The language of the present Section 67-A compels a mortgagee who holds two or more mortgages over different properties from the same mortgagor to sue on all the mortgages, which provision does not do any good to the mortgagor. Such a provision cannot even be convenient or welcome to the mortgagee, who must find the necessary Court-fee for the suit on all the mortgage amounts.

7. In Gadiram v. Punamchand , the principle of Section 67-A was considered to be equitable in the case of a mortgagee who held two mortgages of different dates over the same property. The reasoning is that in case of mortgage by conditional sale, the mortgagor is likely to lose the whole property in satisfaction of one debt notwithstanding that the value of the property maybe more than the debt and in cases of simple mortgage, the property will never fetch its real value if it is sold subject to another mortgage. The inequity was found to be greater in that case where a purchaser of a part of the mortgage property was sought to be made liable for the whole of the second debt, when he had paid the full price under the impression that it was freed from all incumbrances. But the provision was not held applicable to the facts of that case. The principle of consolidation of mortgages by the mortgagee when he seeks to enforce the mortgages becomes necessary when the mortgages relate to the same property by the mortgagor, and no prejudice or injustice is likely to be caused to a mortgagor if the mortgagee institutes different suits on mortgages over different properties. The observations in Gadiram v. Punamchand , further demonstrate the purpose for which Section 67-A was intended but apparently it was extended to mortgages over different properties also in order to bring it in line with the amended Section 61 without realising the necessity or the justification for a wholesale extension of the principle of Section 61 to Section 67-A. It appears to me therefore that Section 67-A requires to be suitably amended by compelling only a mortgagee who holds two or more mortgages over the same property executed by the same mortgagor to sue on all the mortgages, and not a mortgagee who holds two or more mortgages over different properties from the same mortgagor.

8. The present is a case to which Section 67-A is applicable and the question that arises is whether by the failure on the part of the mortgagee to include his claim under the present suit mortgage Exhibit P-1 in his earlier suit O.S. No. 502 of 1941 on the earlier mortgage Exhibit B-1 would absolutely bar him from maintaining the present action. The difficulty arises inasmuch as there is no provision in the Act as to the penalty or the consequences that would result by non-compliance by a mortgagee of the provision in Section 67-A for consolidation of all suits against the same mortgagor.

9. In Premsukh v. Mangal Chand 41 C.W.N. 854, the deed of mortgage covered more than one property, some of the properties being situated outside the jurisdiction of the High Court of Calcutta and a suit was instituted for a mortgage decree against the properties situated within the jurisdiction and with reference to an objection under Section 67-A it was observed at page 866 that

there is nothing in the section itself or elsewhere in the Act to indicate what would be the consequence of non-compliance with the provisions of Section 67-A, In other words, no sanction is attached to the directions contained in the section. There is nothing either in the section itself or in the rest of the Act to indicate that a mortgagee is bound to comply with the provisions of Section 67-A where the circumstances were such that it was not possible to comply with the provisions of the section as for example, where the subject-matter of a series of mortgages consists of properties lying within the territorial limits of a number of different jurisdiction. It was held in that case that Section 67-A was no bar.

10. In Dawkyin v. Ko Pa Tin A.I.R. 1939 Rang. 247, it was held that where a person executes two mortgages one after the other in favour of the same mortgagee then unless there is something, in the second deed of mortgage to show a contrary intention, the creditor must be; presumed to have intended to keep the earlier security alive for his own protection and prima facie the provisions of Section 67-A are applicable in such a case. But, following the judgment of the Calcutta High Court in Premsukh v. Mangal Chamd 41 C.W.N. 854, it was held that if in such a case a suit on both the mortgages cannot be brought in the same Court, then Section 67-A does not apply.

11. The question still remains to be answered as to what is the consequence of non-compliance of the requirements of Section 67-A. That would depend upon whether the statutory provision of Section 67-A is mandatory or only directory in its scope and intent. The language employed in Section 67-A, where it is provided that

a mortgagee...shall, in the absence of a contract to the contrary, be bound to sue on all the mortgages in respect of which the mortgage money has become due.

prima facie indicates that the direction is mandatory and imperative. There is no scope for holding that it is directory. A difficulty arises in provisions of this nature where a statute requires something to be done, but does not provide the consequence for non-compliance. As stated in Maxwell on Interpretation of Statutes, 10th edition, at page 374:

When a statute requires that something shall be done, or done in a particular manner or form, without expressly declaring what shall be the consequence of non-compliance, the question often arises : What intention is to be attributed by inference to the legislature? Where, indeed, the whole aim and object of the legislature would be plainly defeated if the command to do the thing in a particular manner did not imply a prohibition to do it in any other, no doubt can be entertained as to the intention.

There is no scope to construe Section 67-A as directory in the sense that it need not be strictly complied with and the non-performance of which might amount to an irregularity not involving any consequence of nullification of the thing done or rendering it invalid, or liability to any other penalty, since the object of the Legislature is to consolidate the mortgages in so far as a suit by a mortgagee is concerned, while giving the liberty to the mortgagor against consolidation in the matter of redemption as provided under Section 61 of the Transfer of Property Act. Both Section 67-A and Section 61 were intended for the benefit of the mortgagor and in the circumstances, especially in view of the language employed in Section 67-A, it is impossible to hold that the direction in Section 67-A is not mandatory or imperative. But there being no penalty provided for non-compliance and no consequence being stipulated for failure to observe the provision, it becomes necessary to consider what is intended by the Legislature. In this connection the following passage from Maxwell, at page 376, may be referred to:

It has been said that no rule can be laid down for determining whether the command is to be considered as a mere direction or instruction involving no invalidating consequence in its disregard, or as imperative, with an implied nullification for disobedience, beyond the fundamental one that it depends on the scope and object of the enactment. It may, perhaps, be found generally correct to say that nullification is the natural and usual consequence of disobedience, but the question is in the main governed by considerations of convenience and justice and, when that result would involve general inconvenience or injustice to innocent persons, or advantage to those guilty of the neglect, without promoting the real aim and object of the enactment, such an intention is not to be attributed to the legislature. The whole scope and purpose of the statute under consideration must be regarded. The general rule is, that an absolute enactment must be obeyed or fulfilled exactly, but it is sufficient if a directory enactment be obeyed or fulfilled substantially.

It is therefore not always that nullification should be taken as the natural consequences of the disobedience, but in order to arrive at a decision as to what the consequence of such non-compliance would be, the whole scope and purpose of the statute must be taken into consideration as also the question whether by nullifying the act, considerable injustice will not be done to the mortgagee. The object of the enactment, as has already been noted, is to benefit the mortgagor. The mortgagor therefore has a right to object to the maintainability of the suit instituted by the mortgagee, who holds more than one mortgage in respect of the same or different properties from the same mortgagor but who institutes a suit on one of the mortgages alone. In the present case, the objection under Section 67-A, which is open to the mortgagor, was not raised by him in the earlier suit O.S. No. 502 of 1941 instituted on the mortgage Exhibit B-1 and he having failed to take that objection and allowed the mortgagee to proceed with the suit and obtain a decree on the assumption that no validity attached itself to the decree, would it be fair and just to deny the mortgagee the right to sue on the other mortgage on a different property subsequently for recovery of the mortgage amount? No doubt it is primarily for the mortgagee to comply with Section 67-A and bring a single suit on all the mortgages, but in view of there being no provision made as to the penalty for non-compliance, the mortgagee should not be denied his right to sue on the other mortgage, which in this case due to the failure or the neglect of the mortgagor to raise the objection at the earliest point of time must have put the mortgagee in the belief that the mortgagor who had a. right to object had apparently waived it. It is in this view that the facts of the case have to be judged with reference to the direction under Section 67-A of the Transfer of Property Act. The justice of the case does not require a denial to the mortgagee of his right to sue under the suit mortgage.

12. Mr. Ramachandra Ayyar argued that the present suit in view of Section 67-A must be held to be barred under Order 2, Rule 2, Civil Procedure Code. For the application of Order 2, Rule 2, the present claim must arise from the same cause of action as in the previous suit. But here the mortgages are different mortgages executed on different dates for different sums, though between the same parties, and there is no question of the cause of action being the same. With reference to the question as to whether a suit filed on two mortgages over the same property related to two subjects, it was held in Muthuswami Chettiar v. Krishna Ayyar (1934) 68 M.L.J. 316 : A.I.R. 1935 Mad. 262, that it related to two subjects and not merely to one subject for the purpose of Section 17 of the Court-Fees Act. It was also held that the principle of consolidation applied by Section 67-A of the Transfer of Property Act has no bearing upon the interpretation of Section 17 of the Court-Fees Act.

13. Reliance was placed on Muhammad Rafiz v. Muhammad Zakariya , where however there was no question of more than two separate mortgages, but the question was as to whether a claim for interest alone was sustainable and whether it would be open to the mortgagee to sue for principal later and it was held that the first suit having been instituted for interest alone, the second suit for principal was not maintainable having regard to the provisions of Order 2, Rule 2, Civil Procedure Code, since the right to recover the principal had accrued by the date when the suit for interest alone was instituted.

14. It is further argued that the cause of action for a suit on a mortgage is not only governed by the rights created under the mortgage deeds, but also by the obligation on the part of the mortgagee to bring a single suit on all the mortgages enjoined by Section 67-A of the Transfer of Property Act. I am unable to see how the obligation on the part of the mortgagee to sue on all the mortgages imposed by Section 67-A could change the nature of the claims, which are altogether different and which arose on different dates under different documents, and render the cause of action as one and the same.

15. In the result, I am of opinion that the suit has been rightly held to be maintainable. The appeal is therefore dismissed with costs. No leave.


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