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Rangasamy Naicken Vs. Jellibodi Naicken and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported in(1903)13MLJ131
AppellantRangasamy Naicken
RespondentJellibodi Naicken and ors.
Cases ReferredVenkata Somayazulu v. Kannam Dhora I.L.R.
Excerpt:
- - 184. the plaintiff clearly could not obtain possession without paying off the second mortgagee who was in possession, and the plaintiff's suit for possession might have been dismissed on that ground as the plaintiff did not offer to redeem. the second mortgagee is clearly not liable to suffer because the plaintiff failed to make him a party to that suit and it makes no difference to the second mortgagee whether the plaintiff's failure was wilful or due merely to ignorance of the existence of the second mortgage. he clearly cannot be made liable for more because the plaintiff in ignorance of the second mortgage paid an excessive price for the equity of redemption......possession without paying off the second mortgagee who was in possession, and the plaintiff's suit for possession might have been dismissed on that ground as the plaintiff did not offer to redeem. the second mortgagee, however, was willing to pay off the plaintiff's prior mortgagee as he might have done if he had been made a party to the suit brought by the plaintiff on his mortgage. the second mortgagee is clearly not liable to suffer because the plaintiff failed to make him a party to that suit and it makes no difference to the second mortgagee whether the plaintiff's failure was wilful or due merely to ignorance of the existence of the second mortgage.2. as to the amount which the second mortgagee has to pay we agree with the lower courts in holding that it is the amount he would.....
Judgment:

1. The case is exactly on all fours with that of Venkata Somayazulu v. Kannam Dhora I.L.R. 5 M. 184. The plaintiff clearly could not obtain possession without paying off the second mortgagee who was in possession, and the plaintiff's suit for possession might have been dismissed on that ground as the plaintiff did not offer to redeem. The second mortgagee, however, was willing to pay off the plaintiff's prior mortgagee as he might have done if he had been made a party to the suit brought by the plaintiff on his mortgage. The second mortgagee is clearly not liable to suffer because the plaintiff failed to make him a party to that suit and it makes no difference to the second mortgagee whether the plaintiff's failure was wilful or due merely to ignorance of the existence of the second mortgage.

2. As to the amount which the second mortgagee has to pay we agree with the lower courts in holding that it is the amount he would have had to pay if he had been made a party to the plaintiff's suit, as he ought to have been. He clearly cannot be made liable for more because the plaintiff in ignorance of the second mortgage paid an excessive price for the equity of redemption. The second appeal fails and is dismissed with costs.

3. If the money had not been already deposited the time for the second mortgagee paying it is extended by two months from this date.


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