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Sakkarama Rao Vs. Nagasami Rao and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Case NumberSecond Appeal Nos. 784 and 785 of 1954
Judge
Reported inAIR1957Mad191
ActsTransfer of Property Act, 1882 - Sections 60; Contract Act, 1872 - Sections 45
AppellantSakkarama Rao
RespondentNagasami Rao and ors.
Appellant AdvocateT.S. Narasinga Rao and ;B. Balachandrudu, Advs.
Respondent AdvocateM. Natesan, Adv.
DispositionAppeals dismissed
Cases ReferredIn Ramaswami v. Kotayya
Excerpt:
- - balchandrudu that what could discharge the mortgage is the actual payment to a co-mortgagee and not an arrangement under which the co-mortgagee has to enjoy the property, with the income of which the mortgage might not be discharged......that one pf several joint promisees could give a valid discharge of a debt so as to bind all the promisees, the promisor must make an actual payment to him of the debt and that a mere undertaking to pay him the amount at some future date cannot deprive the other promisees of their right to sue for the debt. there is no such undertaking here but, an actual payment, payment made out of the income of the property to recover possession by the mortgagor, which would in law be sufficient to constitute a payment to the co-mortgagee. the view taken, therefore, by the lower appellate court that this is a payment, which would bind the plaintiff, is correct, and it does not require any interference. these second appeals are dismissed with costs in s. a. no. 784 of 1954.3. no leave.
Judgment:

Krishnaswami Nayudu, J.

1. The short point for determination in this appeal is as to whether the discharge of a mortgage by allowing the property to be in possession of a co-mortgagee would amount to a payment to a Joint promisee. The plaintiff and the third defendant were co-mortgagees of the suit property, the 2nd defendant being the mortgagors' representative. It was found that the property was in the possession or the third defendant for a period of five years, during which period the Income of the property was appropriated by the third defendant. It was found by the Court below and in a previous proceeding that the Income of the property was more than sufficient for the discharge or the principal and interest due on the mortgage. In view of the discharge of the mortgage being effected though not by payment not actually made by the mortgagor but by allowing the co-mortgagee to be in possession of the property and to recover the income the lower Court found that it would amount to a payment of the amount due under the mortgage to the co-mortgagee.

2. It is urged by Mr. Balchandrudu that what could discharge the mortgage is the actual payment to a co-mortgagee and not an arrangement under which the co-mortgagee has to enjoy the property, with the income of which the mortgage might not be discharged. The mere fact that payment has not been made in a lump sum and the payment in this case was obtained from and out of the income of the' property, though spread for a period of time, would not affect the nature of the payment, since it was in any event a payment to wards the mortgage, though not voluntarily paid but appropriated from and out of the income of the property.

The decision in Barber Maran v. Ramana Gounden, ILR 20 Mad 461 followed In Ramaswami v. Kotayya, ILR 48 Mad 693: AIR 1925 Mad 161 goes to establish that in order that one pf several Joint promisees could give a valid discharge of a debt so as to bind all the promisees, the promisor must make an actual payment to him of the debt and that a mere undertaking to pay him the amount at some future date cannot deprive the other promisees of their right to sue for the debt. There is no such undertaking here but, an actual payment, payment made out of the income of the property to recover possession by the mortgagor, which would in law be sufficient to constitute a payment to the co-mortgagee. The view taken, therefore, by the lower appellate Court that this is a payment, which would bind the plaintiff, is correct, and it does not require any interference. These second appeals are dismissed with costs in S. A. No. 784 of 1954.

3. No leave.


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