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Venkatamuniappa Chettiar Vs. M.G.R. Lakshminarasimhan and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Reported in(1975)2MLJ475
AppellantVenkatamuniappa Chettiar
RespondentM.G.R. Lakshminarasimhan and ors.
Cases Referred and Narayan v. Parameshvarappa A.I.R.
Excerpt:
- .....made in sections 91 and 92. read together. section 91 relates to redemption and the category of persons entitled to redeem a mortgage. a mortgagor is one of them. in addition, under clause (a) of section 91, any person who has any interest in or charge upon the property mortgaged or in or upon the right to redeem the same, will be entitled to redeem. within this category, may fall a person who was a purchaser of equity of redemption from the mortgagor. but when the section makes a distinction between a mortgagor and a person of the type who may fall within the ambit of clause (a) of that section, we have necessarily to read the expression 'mortgagor'' as any person besides the mortgagor in a restricted manner. in other words, any person who may fall within the ambit of clause (a) is.....
Judgment:

K. Veeraswami, C.J.

1. This appeal under Letters Patent from a judgment of Venkatadri, J., raises an interesting question of law, to wit, whether a transferee from a decree-holder-purchaser in execution of a money decree in his favour of the equity of redemption of a mortgagor is entitled to be subrogated under Section 92 of the Transfer of Property Act. The properties in question were subject to five mortgages executed one after the other. The suit out of which the appeal before us by the plaintiff arises, was to enforce the 5th mortgage in his favour. The 4th defendant, who was a transferee from the Court - auction - purchaser of the equity of redemption in execution of the money decree, claimed priority on the ground that he had redeemed the first four mortgages. The first two Courts agreed in decreeing the suit and declined to allow the claim of priority by the 4th defendant. Venkatadri, J., in the Second Appeal was of the view that the 4th defendant could not be regarded as a mortgagor within the meaning of Section 59,-A, but as a person, who had an interest in the properties, was entitled to redeem the earlier mortgages and as such he coul claimed subrogation in respect of them under Section 92. In taking that view, he followed Umed Singh v. Baburam : AIR1934All1035 , Narayan v. Parameshvarappa A.I.R. 1942 Bom. 98, and Jhum. Lal v. Sham Narayan : AIR1933Pat33 . He also made a reference to Gokuldasv, Puranmal I.L.R. (1884) Cal. 1035, which was, however a case decided prior to the introduction of Section 59-A and amendment of Sections 91 and 92 in 1929. The learned Judge reversed the decrees of the first two Courts and granted a decree dismissing the appellant's suit.

2. On behalf of the appellant reliance was placed on Guruswamiah v. Ramakrishna : AIR1965Mad142 . It seems to us that the present question did not arise there in the precise form, though of course the view in Piarey Lal v. Dina Nath : AIR1939All190 , was followed. We find that there is a direct conflict of view between Piarey Lal v. Dina Nath : AIR1939All190 and Umed Singh v. Babu Ram : AIR1934All1035 , both being decisions of Division Benches and the latter decision taking the view that a person like the 4th defendant here would be entitled to subrogation. On a careful consideration of Sections 59-A, 91 and 92, we are inclined to share the view in Umed Singh v. Babu Ram : AIR1934All1035 and Narayan v. Parameshvarappa A.I.R. 1942 Bom. 98. Section 59-A, being an interpretation section, it naturally governs the scope of the term 'mortgagor' as applied to the provisions in Chapter IV of the Transfer of Property Act. That section says that unless otherwise expressly provided references in the chapter to mortgagors and mortgagees shall be deemed to include references to persons deriving title from them respectively. A purchaser of equity of redemption from a mortgagor either by private treaty or in execution of a money decree obtained against the mortgagor, will definitely by a person deriving title from the mortgagor. Therefore, the purchaser can also be considered as a mortgagor within the meaning of Section 59-A. But the section opens with the words 'unless otherwise expressly provided', of which Section 68 (1) (a) may be an instance. The point is whether there is a provision otherwise made in Sections 91 and 92. read together. Section 91 relates to redemption and the category of persons entitled to redeem a mortgage. A mortgagor is one of them. In addition, under Clause (a) of Section 91, any person who has any interest in or charge upon the property mortgaged or in or upon the right to redeem the same, will be entitled to redeem. Within this category, may fall a person who was a purchaser of equity of redemption from the mortgagor. But when the section makes a distinction between a mortgagor and a person of the type who may fall within the ambit of Clause (a) of that section, we have necessarily to read the expression 'mortgagor'' as any person besides the mortgagor in a restricted manner. In other words, any person who may fall within the ambit of Clause (a) is not entitled by Section 91 to be included within the expression 'mortgagor'. Interpreting that way, a mortgagor for purposes of Section 91 would include a person who has derived title from the mortgagor to the equity of redemption by inheritance or by a will or in any manner otherwise than the means by which any person came to have an interest in the property mortgaged-under Clause (a) of Section 91. Either on the ground that Section 91 is a provision which provides otherwise as contemplated by Section 59-A or on an interpretation of Section 91 itself, we are inclined to think that a purchaser of the equity of redemption from the mortgagor either in invitum or by private treaty will be a person who has an interest in the property mortgaged within the meaning of Clause (a), so that he will not be a mortgagor within the meaning of the first part of Section 91. If that be so, such a person is not excluded from. the right to subrogate under Section 92-We are of opinion, therefore, that Venkatadri, J., was right in the view he took.-

3. As we said earlier, Umed Singh v. Babu Ram : AIR1934All1035 , a decision of Sulaiman, C J. is directly in point. They held that a purchaser of equity of redemption from the original mortgagor was entitled to the benefit of subrogation under Section 92, if he redeemed a prior mortgage. 'Unfortunately, the earlier decision in Umed Singh v. Babu Ram : AIR1934All1035 , which was binding was not referred to in Piarey Lal v. Dina Nath : AIR1939All190 Narayan v. Parameshvarappa A.I.R. 1942 Bom. 98, also decided by a Division Bench followed Umed Singh v. Babu Ram : AIR1934All1035 . We are, with respect, in agreement with the reasoning in Umed Singh v. Babu Ram : AIR1934All1035 and Narayan v. Parameshvarappa A.I.R. 1942 Bom. 98 and it is unnecessary to reiterate the same. It follows that on that view, the 4th defendant is entitled to be subrogated to the rights of the first four mortgagees.

4. Venkatadri, J., had dismissed the suit, as we see from his decree. But he was not right in doing so. The 5th mortgagee who is the plaintiff-appellant, was entitled to a mortgage decree, but only subject to the first four mortgages in respect of which the 4th defendant would be entitled to the right of subrogation and priority over the appellant. Subject to this priority declared, we modify the decree of Venkatadri, j. and grant a decree to the appellant on the basis of the 5th mortgage. In the circumstances, we make no order as to costs.


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