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C. Munuswami Mudali Vs. Jawarmal Sowcar - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1927Mad1180a
AppellantC. Munuswami Mudali
RespondentJawarmal Sowcar
Cases ReferredGovinda Padayachi v. Lokanatha Iyer A. I. R.
Excerpt:
- - in that case, the party who paid off the mortgage was perfectly well aware that the previous owner of the property had parted with all rights before entering into the agreement with him......been paid the full consideration for the sale-deed, for defendant 4 had' not paid rs. 3,000 to the prior mortgagee, rajagopal, which he had undertaken to do. it is also very doubtful whether he had paid the thousand rupees in cash to defendant 1. she was, therefore, still liable personally to rajagopal for the debt under the mortgage and the property was also liable; consequently it cannot be said that she had no interest in the property. in this view, inasmuch as she entered into a transaction with the plaintiff, empowering him to pay off a prior mortgage, and obtain title-deeds deposited with the mortgagee, it cannot be said that the plaintiff was a mere volunteer. he had made a distinct agreement with the debtor to pay off the mortgage and consequently he would be entitled to.....
Judgment:

1. This suit is based on an equitable mortgage alleged to have been effected by defendant 1 in plaintiff's favour supported by a promissory note executed by defendant 1, her brother, defendant 2, and his wife, defendant 3. As regards the personal remedy against defendant 1, the plaintiff withdrew his case, and he also withdrew his case against defendant 3, who has no interest whatever in the mortgage property and apparently received no consideration in the transaction. The learned Judge has found, first of all, that defendant 1 did not take part in the transaction with plaintiff. Secondly he has found that defendant 1 has previously sold the property to her brother's father-in-law, defendant 4, but he has not dismissed the plaintiff's ease because he finds that the plaintiff discharged a mortgage executed by her prior to the sale to defendant 4, 'and is entitled to subrogation. Defendant 1's signature on the promissory note is admitted, as also her signature on Exs. D and D-1, two promissory notes in favour of her brother. In her written statement she did not deny execution of the suit promissory note, but simply denied any knowledge of the transaction. It is an extraordinary story that she puts forward, namely, that on three different occasions, or even more, according to her evidence, she put her signature on a stamp affixed to a blank sheet of paper. She is a young woman, but it is clear from the manner in which she gave evidence that she is not devoid of intelligence, and it is incredible that she should have on these several occasions put her signatures across a stamp on blank paper without making further enquiries, especially when she admits that she realized that such a signature is likely to be one on a bond or other document The learned Judge was inclined to believe that defendant 1's case was not true but he has found it true, because he found that she had executed a sale-deed in favour of defendant 4 prior to the execution of this promissory note, and was unlikely to execute a mortgage thereafter.

2. In this appeal it will be unnecessary to decide whether or not that the sale to defendant 4 was a genuine transaction or was merely nominal, because we are of opinion that defendant 1 did enter into the mortgage transaction with the plaintiff. That being so' we must agree with the learned Judge that plaintiff was also entitled to subrogation to the earlier mortgagee. Defendant 1, at any rate, had not been paid the full consideration for the sale-deed, for defendant 4 had' not paid Rs. 3,000 to the prior mortgagee, Rajagopal, which he had undertaken to do. It is also very doubtful whether he had paid the thousand rupees in cash to defendant 1. She was, therefore, still liable personally to Rajagopal for the debt under the mortgage and the property was also liable; consequently it cannot be said that she had no interest in the property. In this view, inasmuch as she entered into a transaction with the plaintiff, empowering him to pay off a prior mortgage, and obtain title-deeds deposited with the mortgagee, it cannot be said that the plaintiff was a mere volunteer. He had made a distinct agreement with the debtor to pay off the mortgage and consequently he would be entitled to subrogation, as there is no ground for holding that he is a mere volunteer. The case mainly relied upon by the appellant Govinda Padayachi v. Lokanatha Iyer A. I. R. 1921 Mad. 51 is very different to the present one. In that case, the party who paid off the mortgage was perfectly well aware that the previous owner of the property had parted with all rights before entering into the agreement with him. He therefore, was paying off the mortgage purely as a volunteer and had derived no interest whatsoever in the property by the transaction with a person who he knew had no interest himself.

3. The plaintiff has not appealed with regard to the portion of his claim disallowed and consequently we need not go into the question of whether the sale to defendant 4 was nominal or not. As plaintiff has paid off the prior mortgage he is entitled to subrogation and consequently the appeal fails and is dismissed with costs.


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