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Besinath Karumani Vs. Devi Doss and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported inAIR1916Mad959; 29Ind.Cas.511
AppellantBesinath Karumani
RespondentDevi Doss and ors.
Cases ReferredHanumanthaiyan v. Meenatchi Naidu
Excerpt:
mortgage - subrogation--purchaser of mortgaged property, right of--partial payment of mortgage-money. - .....oral release by the prior mortgagee of his rights over the property purchased by the 6th defendant. the decision, appeal no. 295 of 1913, quoted by mr. s. rangaswamy aiyangar for the appellant, does not dissent from the decision in hanumanthaiyan v. meenatchi naidu 12 ind. cas. 412 : (1912) m.w.n. 158. it is argued, however, that on the facts found by the district judge in that case, appeal no. 295 of 1913, the learned judges could not have given a decree for the appellant (11th defendant) in that case, unless they held that the first mortgage need not have been fully discharged on the date of the payment by the appellant of the rs. 920 to enable him to claim priority to the extent of that rs. 920.2. we cannot assume that the learned judges accepted the facts and dates as mentioned in.....
Judgment:

1. The City Civil Judge rightly followed the decisions in Hanumanthaiyan v. Meenatchi Naidu 12 Ind. Cas. 412 : 35 M.P 183 : 10 M.L.T. 380 : 22 M.L.J. 12 : (1912) M.W.N. 158 and Srinivasa Swami Aiyangar v. Athmarama Iyer 2 Ind. Cas. 612 : 19 M.L.J. 280 : 5 M.L.T. 84 : 32 M.P 281 in refusing to recognize any right to subrogate in the 6th defendant, whose money went only in partial discharge of the prior mortgage, and in refusing to recognize as valid the alleged oral release by the prior mortgagee of his rights over the property purchased by the 6th defendant. The decision, Appeal No. 295 of 1913, quoted by Mr. S. Rangaswamy Aiyangar for the appellant, does not dissent from the decision in Hanumanthaiyan v. Meenatchi Naidu 12 Ind. Cas. 412 : (1912) M.W.N. 158. It is argued, however, that on the facts found by the District Judge in that case, Appeal No. 295 of 1913, the learned Judges could not have given a decree for the appellant (11th defendant) in that case, unless they held that the first mortgage need not have been fully discharged on the date of the payment by the appellant of the Rs. 920 to enable him to claim priority to the extent of that Rs. 920.

2. We cannot assume that the learned Judges accepted the facts and dates as mentioned in the District Judge's judgment in that case, as the judgment of the learned Judges does not say so.

3. We dismiss the appeal with costs of 1st Respondent.


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