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Arunachalam Chetty and ors. Vs. O.S. Ramasamy Ayyar - Court Judgment

LegalCrystal Citation
Subject Property
CourtChennai
Decided On
Reported inAIR1928Mad933
AppellantArunachalam Chetty and ors.
RespondentO.S. Ramasamy Ayyar
Cases ReferredMohan Lal v. Prasadi Lal A.I.R.
Excerpt:
- - it cannot, therefore, be said that in this case the arrangement did not constitute a fraud on the rights of the plaintiff and it is well-recognized law that in such cases the plaintiff would not be bound. defendants 1 and 2 are therefore still liable to the plaintiff for the mortgage money and their contentions in this appeal must fail. 461: in equity persons lending money to a third person are deemed to be tenants-in-common and not joint tenants as well of the debt as of any security held for it. in the present case the father of defendants 3 to 5 having purchased the equity of redemption is precluded from enforcing his mortgage right against that property and to the extent of his share in the mortgage money the debt has admittedly been satisfied. but the well-recognized principle.....phillips, j.1. defendants 1 and 2 executed a mortgage in favour of the plaintiff and vena odayan, father of defendants 3 to 5. in 1921 under ex.1, defendants 1 and 2 sold the mortgage property with the exception of 22 acres and a house to defendant 3 for rs. 10,000. the consideration was made up of two sums, one of rs. 9,460 in discharge of this mortgage and a cash payment of rs. 540. it was recited that the father of defendants 3 to 5 was to take rs. 4,730 for his share of the mortgage money and was to pay a similar amount to the plaintiff. defendants 1 to 5 have filed a joint appeal although their cases are not identical.2. on behalf of defendants 1 and 2 it is contended that by executing ex.1, they fully discharged the plaint mortgage, it being alleged that the plaintiff was a.....
Judgment:

Phillips, J.

1. Defendants 1 and 2 executed a mortgage in favour of the plaintiff and Vena Odayan, father of defendants 3 to 5. In 1921 under Ex.1, defendants 1 and 2 sold the mortgage property with the exception of 22 acres and a house to defendant 3 for Rs. 10,000. The consideration was made up of two sums, one of Rs. 9,460 in discharge of this mortgage and a cash payment of Rs. 540. It was recited that the father of defendants 3 to 5 was to take Rs. 4,730 for his share of the mortgage money and was to pay a similar amount to the plaintiff. Defendants 1 to 5 have filed a joint appeal although their cases are not identical.

2. On behalf of defendants 1 and 2 it is contended that by executing Ex.1, they fully discharged the plaint mortgage, it being alleged that the plaintiff was a consenting party to Ex. 1. The Subordinate Judge has found that the plaintiff was not a party to this agreement and that it was arrived at behind his back. The mortgage amount was calculated by allowing interest at 10 1/2 per cent, the original rate, and not at the rate provided in case of default of payment. The difference would amount to over Rs. 1,000. The arrangement, therefore, arrived at was in effect a remission of a large portion of the mortgage amount and, if the plaintiff was a party to this remission, it is difficult to believe that he would at once have resiled from this agreement and claimed the full mortgage money. The plaintiff was not present either when Ex. 1 was executed, nor the next day when it was registered, and there is nothing whatever in writing to show that the plaintiff was a consenting party. No endorsement was made on the mortgage and the plaintiff's consent is sought to be proved by oral evidence. We have been taken through this oral evidence by the appellant's vakil and there is certainly no reason for coming to any other conclusion than that arrived at by the trial Judge, namely, that the defendant's story that the plaintiff agreed to the transaction is false. Ex. 1 prima facie is not binding on the plaintiff, but it is contended that inasmuch as defendants 1 and 2 discharged the mortgage to one of the joint mortgagees it is effectual as a discharge against; the other. The case relied on for this proposition is Barbar-Maran v. Ramana Goundan [1897] 20 Mad. 461, but in that case it was held by this Court that when a mortgage was completely discharged by payment to one mortgagee it must also be deemed to be a discharge as against the co-mortgagee. This decision is not in accordance with the view of the Calcutta High Court, but it is based on the fact that the mortgagors' liability under the suit contract had been fully discharged and consequently they could not be held liable any further. Accepting this proposition it does not follow that in the present case the arrangement arrived at in Ex. 1 is equally binding on the plaintiff. Under Ex. 1 the liability of defendants 1 and 2 was not fully discharged, but a remission was granted by one of the co-mortgagees in respect of a considerable sum of money due under the mortgage. What really happened was the substitution of a new agreement for the old contract between the parties and in order to render that effective, the consent of all the prior contracting parties is essential. Two English cases have been cited Phillips v. Clagett [1843] 11 M.&W.; 84 and Wallace v. Kelsall [1841] 7 M.&W.; 264. In both these oases it was held that a release by a co-promisee is binding on the other promisee, but in both the oases it was held that there was no fraud on the other promisee and in the former case that even if there was fraud the defendant at least was not a party to it. In the judgments in these cases it is expressly laid down that a Court in the exercise of its equitable jurisdiction may interfere to prevent a defendant from pleading a release, where it would be manifest fraud on a third party seeking to enforce a demand against the defendant, and where the defendant himself is a party to the fraud.

3. Although in the present case there may have been no fraudulent intention on the part of defendants 1 and 2, yet the agreement with the father of defendants 3 to 5 to discharge their debt by payment of an amount less than what was due would undoubtedly constitute a fraud on the rights of the plaintiff. Not only has he to rely on his co-mortgagee alone for the payment of half the mortgage money, but his co-mortgagee has not received from the defendants the full amount due under the mortgage and also released the security of the immovable property which the plaintiff had before the agreement was arrived at. It cannot, therefore, be said that in this case the arrangement did not constitute a fraud on the rights of the plaintiff and it is well-recognized law that in such cases the plaintiff would not be bound. A case directly in point is Janhari Singh v. Ganga Sahai [1919] 41 All. 631 where two mortgages in favour of B and J were purported to be discharged by a third mortgage in favour of B alone who claimed to be solely entitled to the prior mortgagee. It was there held that J could sue for his share of the mortgage debt. This principle is also laid down by the Privy Council in Sunitibala Debi v. Dhara Sundari Debi A.I.R. 1919 P.C. 24.

4. These decisions are, however, still more applicable to a further question raised in this appeal as to whether the plaintiff is entitled to sue for half the mortgage amount alone. The decision in Powell v. Brodhurst [1901] 2 Ch. 160, does not appear to be at all in appellants' favour. There it was held that payment to one of two joint mortgagees only discharges the securities to the extent of the payee's beneficial interest. The case in Mohane Lal v. Prasadi Lal A.I.R. 1924 All. 11, also relied on. by the appellants must be distinguished on the ground that it was not a case of joint mortgagees, but a case where a party had purchased the equity of redemption in the mortgage property under a money decree, and it was held that the plaintiffs could only bring to sale a portion of the property corresponding to the amount of the mortgage debt to which they were entitled. The question of whether the mortgage had in that case been actually severed within the meaning of Section 67 (d), T. P. Act, was not considered, but it is unnecessary; to express any opinion on the correctness of the decision for it is certainly not applicable in the present case. Defendants 1 and 2 are therefore still liable to the plaintiff for the mortgage money and their contentions in this appeal must fail.

5. The language of Ex. 1 is also against the contention that its execution amounts to a complete discharge of the mortgage, for the mortgage-deed was handed over to the father of defendants 3 to 5 and he was asked to pay off plaintiff's share.

6. It is then argued on behalf of defendants 3 to 5 that this suit for half the mortgage money on the security of the whole of the property is not maintainable, but that a decree can only be given against half of the security. This contention appears to be based on a single observation in Barbar Maran v. Ramana Goundan [1897] 20 Mad. 461:

In equity persons lending money to a third person are deemed to be tenants-in-common and not joint tenants as well of the debt as of any security held for it.

7. The contention, apparently, is that for each share of the mortgage money only a corresponding share of the mortgage property is liable. This is, however, directly opposed to the established principle that the whole of the mortgage property is liable for any and every portion of the mortgage debt however small. In the present case the father of defendants 3 to 5 having purchased the equity of redemption is precluded from enforcing his mortgage right against that property and to the extent of his share in the mortgage money the debt has admittedly been satisfied. There is still outstanding the amount due to the plaintiff, namely, half the mortgage debt. Whether, therefore, we call this amount the balance due under the mortgage, or the plaintiff's share of the mortgage, it is clear that the whole of the security is liable for the payment of that debt. In this connexion the remarks of the Judicial Committee in Sunitibala Debi v. Dhara Sundari Debi Chowdhuri A.I.R. 1919 P.C. 24 are very much in point:

Where a mortgage is made by one mortgagor to two tenants-in-common the right of either mortgagee who desires to realize the mortgaged property and obtain payment of the debt, if the consent of the co-mortgagee cannot be obtained, is to add the co-mortgagee as a defendant to the suit and to ask for the proper mortgage decree, which would provide for all the necessary accounts and payments, excepting that there could be no judgment for a sum of money entered as between the mortgagee defendant and the mortgagor.

8. Here we have the plea both of defendants 1 and 2 and of defendants 3 to 5 that the mortgage debt due to the latter has been discharged, but as this discharge was without the consent of the co-mortgagee and is not binding on him the latter is still entitled to maintain the suit on the mortgage and can sue for his share which is the only amount remaining due on the mortgage. In that view the suit for half the amount with a prayer for the sale of the whole of the mortgage security is maintainable. I think it may also be put upon the ground that the plaintiff is suing for the whole of the balance still due on the mortgage and that the whole mortgage property is security for that balance. The contention that the mortgage has been severed and that therefore plaintiff can sue for his share of the mortgage money and, claim the amount against a corresponding share of the mortgaged property by virtue of Section 67 (d), T. P. Act, must be rejected. In the first place the section is not mandatory and in the second place there had been no severance of the mortgage-within the terms of Section 67 (d). Ex. 1 was not a severance of the mortgage as between plaintiff and the father of defendants 3 to 5, and if it be contended that plaintiff effected a severance by filing this suit he did not do so with the consent of the mortgagors. The appeal is dismissed with costs.

Devadoss, J.

9. The plaintiff's suit is for his half-share of the amount due on a simple mortgage bond executed in favour of the father of defendants 3 to-5 and himself by defendants 1 and 2 on 18th September 1908 for Rs. 4,000. Defendants 1 and 2 pleaded amongst other things that the amount due on the bond; had been discharged by the sale of the mortgaged property to defendant 3 with the exception of a small portion. The plea of defendant 3 which was adopted by defendants 4 and 5 was that as defendants 1 and 2 were helpless, the plaintiff and defendant 3 arranged with them that the penal interest should be given up and that they should convey the mortgaged property with the exception of a small portion reserved for their maintenance to defendant 3 in full discharge of the debt; and the sale-deed dated 15th September 1921 was executed' in favour of defendant 3 in pursuance of the arrangement and the mortgage deed became thereby discharged; and that the plaintiff was estopped from bringing this suit. The Subordinate Judge disbelieved the defendants's case that the plaintiff was a consenting party to the arrangement and the sale and gave a decree for the amount sued for. The defendants have preferred this appeal.

10. Mr. T.V. Venkatarama Ayyar, who appears for the appellants, has not challenged the finding of fact by the lower Court, that the plaintiff was neither a. party to, nor did consent to, the arrangement set up by the defendants under which the mortgage deed was said to have been discharged by the sale of the property to defendant 3 evidenced by Ex. 1. He has raised the following contentions.

1. A bona fide arrangement made by a co-mortgagee with the mortgagor for the discharge of the mortgage debt is bind-upon his co-mortgagee and the latter is not entitled to question it or go behind it.

2. Granting that such an arrangement is not binding upon the co-mortgagee he is not entitled to sue for his share of the debt alone.

3. And if it be held that he is entitled to sue, he can proceed against only a proportionate share of the mortgaged property and not against the whole.

Contention (1).-It is urged that the payment to one of two or more joint promisees is a discharge of the whole, for a promisor is not bound to, in the absence of a contract to the contrary, seek all the promisees for payment of the debt. Payment of the whole debt to one of two or more joint creditors, in the absence of a contract to the contrary, will be sufficient discharge of the debt. But if the debt is not wholly paid there cannot be a full discharge of it. Section 63, Contract Act, does not support the contention that a co-obligee can dispense with the performance of the promise by an obligor. The promisee can dispense with, or remit wholly or in part, the performance of the promise to him, but he has no right to dispense with, or remit wholly or in part, a promise made jointly to him and another. Section 45 gives a right to every joint promisee to claim performance of the promise. And that being so, one joint promisee cannot dispense with, or remit wholly or in part, the performance of a promise; much less can he enter into a new contract with the promisor to take the place of the old contract so as to bind the other joint promisees.

11. Under Ex. 1, defendants 1 and 2 sold the equity of redemption of a major portion of the property mortgaged. The recital as regards the plaintiff's share of the mortgage amount is:

We have directed you to pay yourself to the said Ramasami Ayyar the balance of Rs. 4,730 found due by us to the said Ramasami Ayyar for his share and to discharge the previous mortgage and keep the document in support thereof.

12. This recital can, by no stretch of imagination, be called a payment. Defendant 3 is directed to pay a portion of the consideration for the sale to the plaintiff in discharge of his share of the mortgage debt, and thereby discharge the mortgage and to take the document and keep it. It is strongly urged that the arrangement under Ex. 1 was a bona fide arrangement and therefore the plaintiff is bound by it. It is not the absence of bona fides that stands in the way of the appellants; but the well-recognized principle of law, that no man is entitled to deal with, or give away, another man's property or right without his consent. The contention of the appellants would, if accepted as sound enable a joint promisee to accept a few rupees in full discharge of a debt of some, thousands, and say, that as he bona fide thought that the debtor could not possibly pay anything more, he was constrained to accept a small sum and the other joint promisee could claim only a proportionate share of the amount actually paid. Payment to one co-promisee will entitle a promisor to a full discharge of his liability, but the payment must be of the whole debt. Here defendant 3 accepted something in lieu of payment and that will not amount to payment and therefore cannot be a discharge of the debt. In Barbar Maran v. Ramana Goundan [1897] 20 Mad. 461, it was held that a payment to one of the mortgagees of the amount due on the mortgage was a full discharge of the mortgage debt. There was no question of fraud in the case.

13. This case is not an authority for the proposition that a co-obligee can validly excuse or release the debtor from his obligation by accepting a small amount from him in full discharge of the debt so as to bind his co-obligees. In the case of trading 'partnerships one of the partners can in the course of business accept part payment in full discharge of a debt when he is satisfied that in the interests of the concern he should do so, or, when he is satisfied that no more can be recovered from the debtor. Accepting part performance of a contract in full satisfaction of the performance of the contract is within the powers of a partner who takes an active part in the management of the business. The law of partnership enables every one of the partners to take part in the management of the partnership business and anything done bona fide in the course of management must necessarily bind the other partners. (See Section 253, Contract Act). But where two joint promisees are interested in a transaction and there is no question of managing a going concern it would be opposed to all principle to hold that one of them can excuse wholly or in part the performance of the promise by a promisor so as to bind the other.

14. Great reliance was placed by Mr. Venkatarama Ayyar on Wallace v. Kelsall [1841] 7 M.&W.; 264. In that case it was held that a plea of accord and satisfaction with one of the plaintiffs by a part payment in cash and a set off of a debt due from that one to the defendant was held to be a good plea. Lord Abinger, C.B., observed that

as it is competent to one of three joint plaintiffs to release a joint debt, it is competent to one of three joint plaintiffs to settle an action so as to protect himself from being obliged to sue.

15. The Indian Contract Act has departed from the rule of English common law that a joint promisee could dispense with the performance of the promise without reference to the other joint promisees. Section 45, Contract Act says:

When a parson has made a promise to two or more persons jointly, then, unless a contrary intention appears from the contract, the right to claim performance rests, as between him and them, with them during their joint lives and, after the death of any of them, with the representatives of such deceased person jointly with the survivor or survivors, and, after the death of the last survivor, with the representative of all jointly.

16. The case in Lawrence Phillips, Samuel Phillips and C. Larrieu v. Clagett [1843] 11 M.&W.; 84 does not help the appellant. There, in the course of business, a portion of the goods was released by one of the persons jointly interested in the concern Parke, B, observed:

I take it to be clear that one partner (and Rogers so far as regards this transaction was a partner with the other) has a clear right to receive or release a debt subject to his responsibility to his partners, unless in a case where he has expressly or impliedly bargained and disposed of that right to his other partners.

17. The Contract Act has made considerable departure from the English law as regards the relations inter se of co-obligees or co-promisees. And it is not right to apply, English common law wholesale without reference to the Indian statute law on the point. Pollock and Mulla, in their commentary on the Indian Contract Act, observe at p. 240, edn. 3, with regard to Wallace v. Kelsall [1841] 7 M.&W.; 264:

The authority of this decision is considerably shaken by a later decision of the Chancery Division in Powell v. Brodhurst [1901] 2 Ch. 160.

18. In Annapurnamma v. Akkayya [1913) 36 Mad. 544 a Full Bench of this Court held that

one of several payees of a negotiable instrument can give a valid discharge of the entire debt without the concurrence of the other payees.

19. Arnold White, C.J., dissented from the opinion of the majority and adhered to the view expressed by him in Ramasami v. Muniyandi : (1910)20MLJ709 . The question involved in the case was one of limitation. The promissory note was executed by defendant 1 in favour of the two plaintiffs described as minors-7 and defendant 2 who was not a minor. The suit was brought by the two plaintiffs more than three years after the promissory note became payable. The question for decision was whether the suit was barred. In deciding that question it was necessary to decide whether one of the payees could have given a valid discharge of the entire debt without the concurrence of the other two payees. Sankaran Nair and Sadasiva Ayyar, JJ., held that they could. There is no difficulty in accepting as correct the principle of this decision provided that payment is made in full to one of the promisees of the debt, but this decision cannot support the contention of the appellant that anything less than a full payment of the debt would be a complete discharge of it. In Powell v. Brodhurst [1901] 2 Ch. 160 it was held that where mortgagees have advanced money on Joint accounts payment to one of them during the other's lifetime though a good discharge of the debt at law, only discharges the security to the extent of the payee's beneficial interest (if any) even though the payee ultimately becomes the survivor in the joint account.

20. Exhibit 1 is against the contention that there was a discharge of the mortgage debt. Defendant 3 purchased the property undertaking to pay the plaintiff's share of the debt. As long as the plaintiff's debt remains unpaid there cannot be a full discharge of the mortgage debt. There is another argument against the contention of the appellant:

A mortgage is a transfer of an interest in specific immovable property for the purpose of securing payment of money advanced, or to be advanced, by way of loan, etc.

21. The mortgagee is bound under the law to re-convey the property on payment of the mortgage debt. One co-mortgagee cannot re-convey the property mortgaged to the mortgagor without the concurrence of the other mortgagees. That being so, it is difficult to see how the mortgage could become extinguished without the concurrence of all the mortgagees. It is open to the mortgagor on payment of the whole of the mortgage amount to claim redemption of the property; but without paying the whole of the amount due he cannot claim redemption. Ex. 1 does not contain any recital to show that it was the intention of the parties to it to extinguish the mortgage. Defendant 3 acquired the equity of redemption subject to the mortgage and he stands in the shoes of the mortgagors; and the mortgage debt to the extent of his right may be said to be extinguished. But the 'portion that is due to the plaintiff cannot be said to have become extinguished. I hold that there has been no payment of the plaintiff's share of the debt to defendant 3 and the mortgage debt had not become discharged by the execution of Ex. 1. The contention of the appellant on this point fails.

22. Contention (2).-It is next urged that the plaintiff cannot sue for his share of the mortgage debt alone. It is difficult to follow the argument of the learned vakil for the appellant on this point. Defendants 3 to 5 say that their share of the debt has been satisfied by the sale of the property to them and the plaintiff, after knowing the arrangement or the adjustment under which half the mortgage debt had been discharged, was not entitled to sue for the whole of the debt as if it was due. In Powell v. Brodhurst [1901] 2 Ch. 160 the suit for the unpaid portion of the debt was held to be maintainable. Farwell, J., observed at p. 164:

In my opinion the rule of common law, that payment to one of two joint creditors is a good discharge of the joint debt still remains good.

23. If a mortgagor paid to one of them such payment may be good discharge in law, but the matter is at large when he comes into equity and the Court takes into consideration all facts of the case and ascertains whether the payee was beneficially entitled to the whole or to part only or whether he was proceedings with the other mortgagees and considers payment as good in whole or in part or altogether bad accordingly.

24. In Sunitibala Debi v. Dhara Sundari-Ghoivdhurani A.I.R. 1919 P.C. 24 it was held that no-redemption could be effected of a part of the property by paying to one of the mortgagees her separate debt. It was not a mortgage to each of a divided half but a conveyance to them of the whole property. And one of two mortgagees could sue the mortgagor and the other mortgagee, and a suit lies for a proper mortgage decree which would provide all the necessary accounts and payments excepting there could be no decree for money entered as between the mortgagee defendant and the mortgagor. Their Lordships observe at p. 179: [47 Cal.]

This mortgage clearly effects conveyance of the real estate to the mortgagees as tenants-in-common, and no redemption could be effected of part of the property by paying to one of the, mortgagees her separate debt. It is not a mortgage to each of a divided half but a conveyance to them of the whole property. Where a mortgage is made by one mortgagor to two tenants-in-common, the right of either mortgagee, who desires to release the mortgaged property and obtain payment of the debt, if the consent of the co-mortgagee cannot. be obtained, is to add the co-mortgagee as defendant to the suit and ask for a proper mortgage decree which would provide for all necessary accounts and payments, excepting there can be no judgment for a sum of money entered as between the mortgagee defendant and the mortgagor.

25. The principle being, as enunciated by their Lordships, the plaintiff cannot sue for the whole of the mortgage moneys when he is told that the share of defendants 3 to 5 in the debt has been paid off by the mortgagors. Jauhari Singh v. Ganga Sahai [1919] 41 All. 631 is an authority in favour of the respondent. In that case -certain property was mortgaged by G ( K's brother) also to B and J. Subsequently K and G made a usufructuary mortgage of both properties in favour of B alone, ostensibly in lieu of the mortgages, and B purported to give the mortgagors a discharge of those mortgages. Held, that in the circumstances' it was competent to J to sue the mortgagors for the recovery of his share in the mortgage debts due in respect of the two earlier mortgages, the action taken by B amounting in law to a severance of the interests of the mortgagees with the consent of the mortgagors. They observe at p. 633:

When Balwant Singh took a usufructuary mortgage of the property of the mortgagors from both mortgagors in lieu of the amounts of the two mortgages, he gave them a discharge for the two mortgages. As Jauhari Singh has been found to have owned a half-share in the two mortgages, that discharge could only operate in respect of the half share of Balwant Singh himself. The two mortgages were, there fore, in law, discharged to the extent of one-half and as they were discharged to that extent only, the portion of the mortgages which remained undischarged was the half-share which belonged to Jauhari Singh. This Jauhari Singh is entitled to recover. Section 67, T. P. Act, no doubt, provides that one of several mortgagees cannot seek to enforce the mortgage unless there has been a severance of the interests of the mortgagees. This provision in the section was clearly enacted for the benefit of the mortgagor. Balwant Singh can no longer put forward any claim against the mortgagors, and so far as his interests are concerned, there has been a severance of interests of the mortgagees and this has been effected with the, consent of the mortgagors.

26. In this case the mortgagors, defendants 1 and 2, conveyed the property to the defendant, and thereby the debt due to defendants 3 to 5 became discharged. The plaintiff's suit does not offend against Section 67 (d), T. P. Act. He sues for his share of the mortgage money and the contention of the defendants, if upheld, would militate against the principle enunciated in Clause (d); for the plaintiff was not a consenting party to the arrangement and sale evidenced by Ex. 1. In Satindra Nath v. Jatindra Nath : AIR1927Cal425 it was held that

payment of the mortgage money by the mortgagors to one only of several mortgagees is not good and valid payment as against the other mortgagee or mortgagees and does not operate as a discharge as to all. Discharge by one mortgagee alone is valid as regards his share of the debt.

27. The learned Judges discuss almost all the cases on the point and observe at p. 379:

So far as this Court is concerned it has never followed the principle enunciated in Barber Maran v. Ramana Goundan [1897] 20 Mad. 461.

28. With regard to Annapurnamama v. Akkayya [1913) 36 Mad. 544 they preferred to follow the view expressed by White, C.J., in his dissenting judgment. The Patna and Bombay High Courts take a view similar to that expressed in Ray Satindranath Choudhury v. Ray Jatindranath Choudhury : AIR1927Cal425 . In Atchamma v. Subbarayudu [1905] 15 M.L.J. 496 it was held that one of two mortgagees can sue for recovery of his share of the mortgage money claiming to be severally entitled thereto impleading his co-mortgagee as defendant if he should be unwilling to join him as plaintiff. The decree in such a case should direct that money realized by sale of the properties should be paid to the two mortgagees in due proportion of sums due to them. Where one mortgagee says his debt has been discharged there is no need to give a decree in respect of the portion of the debt paid off. The plaintiff is entitled to maintain an action for his share of the mortgage debt in the circumstances of the case.

29. Contention (3). It is next urged that the plaintiff could bring only half the mortgaged property to sale as he sues only for half the mortgage debt. Under the law relating to mortgages the whole of the mortgaged property is liable for the mortgage debt. Even if a small portion of the debt remains unpaid, the whole of the property could be proceeded against for the portion left unpaid: vide Section 67, T. P. Act. The burden of Mr. Venkatarama Ayyar's song is that the mortgaged property has considerably depreciated in value, and if the whole of it. is sold for satisfying the plaintiff's claim his client would not only lose the property, but will also lose his share of the mortgage debt. But, on the other hand, if the plaintiff is to sue for the whole of the debt his client will get a half-share of the sale-proceeds. Defendant 3 has to thank himself for what has happened. He bought the property for reasons best known to himself. If it is very Valuable property, would he give away half of it to the plaintiff if he wants it? Would he not then say to plaintiff: 'you are only entitled to half the mortgage amount; take it and be satisfied with it.' The plaintiff could not insist upon getting half of the property in satisfaction of the debt. He is entitled to enforce his claim against every item of the mortgaged property. Considerable stress is laid upon Mohan Lal v. Prasadi Lal A.I.R. 1924 All. 11 as supporting the appellant's contention. No doubt the case is an authority for the contention of the appellant. But with great respect I am unable to agree with the view of the learned Judges who decided that case. They did not refer to any decided case nor did they discuss the law governing the relations of mortgagor and mortgagee. They observe at p. 48: [45 All].

It would be highly inequitable to allow the plaintiffs to throw the burden of their share of the mortgage money on the whole property, for it may very well place the defendant in a very much worse position than he might have been in, but for the auction purchase.

30. It is difficult to see why any sympathy should have been thrown a way on a party who with his eyes open buys property subject to mortgage in favour of himself and another, without that other's consent. It is unnecessary to notice this case at any length as it is opposed to the principle that without the concurrence of all mortgagees and mortgagors a mortgage interest could not be severed and that a portion of the mortgage property could not be redeemed. There cannot be a partial redemption of the mortgaged property without the concurrence of all the parties concerned. The learned Judges of the Allahabad High Court practically allowed a partial redemption of the share of the mortgage by reason of the mortgagee having purchased the equity of redemption in court auction. The contention of the appellant on this point also fails. In the result the appeal is dismissed with costs.


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