KESAVAN Vs. SAROJINI

JUDGEMENT

(1.) The first defendant is the appellant in this second appeal. The facts of this case, so far as they are relevant for the purpose of this second appeal are the following: Plaint schedule property belonged to one Palpan who mortgaged it to the first defendant. Subsequently the first defendant and Palpan jointly executed a hypothecation bond, Ext. B, in favour of the deceased karnavan of the plaintiffs charging the first defendants mortgage right and Palpans equity of redemption. For the interest due under this hypothecation bond Palpan alone executed two puravaipa deeds, Exts. III and IV, in favour of the first plaintiff charging the equity of redemption. In family partition the rights under these bonds were allotted to the share of the second plaintiff. For amounts due under Exts. III and IV plaintiffs instituted a suit as O.S. No. 92 of 1112 of the Trivandrum District Court and obtained a decree. In execution of that decree the second plaintiff purchased in court auction the equity of redemption of the property. Plaintiffs brought the present suit for the amount due under the hypothecation bond (Ext. B) claiming a charge on the first defendants mortgage right in the property. Defendants 2 and 3 are the legal representatives of deceased Palpan. The first defendant raised various contentions in the suit. One of the contentions was that his mortgage right in the property was liable only for a proportionate part of the hypothecation amount, the proportion being determined with reference to the respective value of the mortgage right and the equity of redemption. The second defendant also contested the suit.

(2.) All the contentions raised by the defendants were repelled by the Trial Court and the suit was decreed. Interest was, however, disallowed from the date of suit to the date of decree on the ground that the plaintiffs were not entitled to more than a moiety of the principal as interest till the date of decree. The first defendant filed an appeal from this decree as A.S. No. 355 of 1119 while the plaintiffs filed A.S. No. 348 of 1119 as regards the portion of the interest disallowed by the Trial Court. The District Court dismissed A.S. No. 355 of 1119 and allowed A.S. No. 348 of 1119. The 1st defendant preferred a second appeal in the Travancore High Court as S.A. No. 416 of 1121. The only contention urged in the second appeal was that the plaintiffs should be allowed to recover only a proportionate part of the hypothecation amount charged on the first defendants mortgage right in the property. Since this question was not dealt with by the District Court the High Court set aside the decree of that court and remanded the case for fresh disposal. In the remand order the High Court observed that, though the Transfer of Property Act was not as such law in the State the principle contained in S.82 of the Act could be applied as a rule of equity.

(3.) After remand the District Court held that the principle embodied in S. 82 of the Transfer of Property Act relating to contribution did not apply to the facts of this case. That court took the view that the section related only to contribution between mortgagors inter se and that it would not apply to a claim by the mortgagee for the amount due under the mortgage. A.S. No. 355 of 1119 was, therefore, dismissed with costs, and A.S. No. 348 of 1119 was allowed. Interest was allowed on the principal amount at 6 per cent per annum from the date of suit till 31.1.1116 and thereafter at 4 per cent per annum.