1. The facts of this case are simple. On 7th November, 1922, defendant 1 mortgaged three items of property to plaintiff's father. In January, 1925, he settled the equity of redemption upon defendant 2 his mother. In September, 1925, defendant 2 sold item 1 to one Ademma, the main consideration for the sale being the promise by Ademma to discharge the whole of the mortgage debt. In 1926 and 1927 Ademma made two part-payments of Rs. 650 and Rs. 600 respectively. In January, 1932, Ademma sold item 1 to the plaintiff who had succeeded to his father's rights as mortgagee for Rs. 3,000 a sum which did not suffice to discharge the mortgage. Plaintiff accordingly sued to recover the balance, and the question at issue is whether on these facts, and with reference to Section 82 of the Transfer of Property Act, items 2 and 3 which have remained since 1925 in the possession of defendant 2, can be called upon to contribute any sum to the satisfaction of the mortgage. It is found that item 1 is five times as valuable as items 2 and 3.
2. The first question to decide is whether there is a 'contract to the contrary' within the meaning of Section 82. At one time it was held see Ramabhadrachar v. Sreenivasa Aiyangar I.L.R.(1900)Mad. 85, that such a contract must be between mortgagee and mortgagor, but since the decision of the Privy Council in Ganeshi Lal v. Charan Singh (1930) 59 M.L.J. 177 : L.R. 57 IndAp 189 : I.L.R. 52 All. 358 , that is no longer good law, and a contract, as here, between an assignee from the mortgagor, and the purchaser of apart of the equity of redemption certainly falls within the section.
3. What is that contract? The contract clearly is that Ademma, the purchaser, shall pay the whole debt, which means that Ademma shall not be entitled to call upon items 2 and 3 for contribution.
4. Is that contract still in force? It would certainly be in force if this were an action between defendants and Ademma. Does the sale to plaintiff make any difference? It is argued for the appellant that it does on the ground that contracts of this kind do not 'run with the land'. I have been referred to Seshagiri Aiyar v. Vythilinga Pillai I.L.R.(1909)33 Mad. 211 and other authorities for the position that the benefit of a contract of this kind does not automatically pass to an assignee but only if it itself be specifically assigned. But here it is defendant 2 herself, and not any assignee, who is opposing plaintiff. I cannot agree that because the benefit of a contract such as this does not necessarily pass to an assignee from one party, the burden of it similarly does not pass to an assignee from the other who has full notice of its existence. In Muthiah Bhagavathar v. Venkatarama Aiyar : AIR1936Mad106 , it is pointed out that such an assignment cannot give the1 assignee rights under Section 82 which his assignor did not possess.
5. Muthiah Bhagavathar v. Venkatarama Aiyar : AIR1936Mad106 is a decision of a Bench of this Court which I think clearly binds me in deciding the present appeal. Not only on the proposition of law there laid down is plaintiff bound by the terms of Ademma's cdntract with defendant 2, but also, on the arithmetic of this case he can have no claim. For it is further pointed out on page 137 that if plaintiff is not bound by his predecessor's contract he cannot take advantage of payments which his predecessor has made. If in the present case, plaintiff cannot credit the sum of Rs. 1,250 as payments made by his item of property, defendant 2 will have fully discharged the 1/6th share of the mortgage debt due from her items.
6. The appeal fails and is dismissed with costs.
7. Leave refused.