CHEERU ELAYACHI Vs. SEEMON CHACKO

JUDGEMENT

(1.) The facts necessary to understand the only question raised in the case may be stated. The first defendant was the owner of four items of properties; and he created a hypothecation over all of them. Defendants 11, 12 and 13 purchased item 2, the 20th defendant item 1 and some other defendants item 3, thus leaving item 4 alone in the possession of the first defendant. He thereafter, created another possessory mortgage on item 4 in favour of the plaintiff - appellant; and the latter is now in possession of item 4. A suit was brought on the original mortgage on all the four items; and the appellant paid off the entire debt to save his subsequent mortgage on item 4. Then he filed the suit giving rise to the second appeal for contribution from the other three items; and the Trial Court granted a decree in his favour directing the three items to pay proportionately. Defendants 11, 12 and 13, the owners of item 2, filed an appeal before the lower appellate court; and the 20th defendant, the owner of item 1, filed a cross appeal. The lower appellate court allowed the appeal and the cross appeal and dismissed the suit against items 1 and 3. Further, the Subordinate Judge remanded the rest of the suit to the Trial Court directing the Trial Court to issue notices to interested parties and to decide the case regarding the other item also in the light of his judgment. The question for consideration in the second appeal by the plaintiff is whether the decision of the lower appellant court requires variation.

(2.) The Subordinate Judge, I an afraid, has proceeded on a superficial reasoning basing upon a proposition extracted from an English decision. The decision of this Court in Ayyappan Raman v. Kunju Varki Ithappiri ( 1957 KLT 656 ) was cited before both the lower courts; and that decision was followed by the Trial Court. But the lower appellate court said that that decision did not apply to this case. The appellant, as subsequent mortgagee of item 4, was interested in paying off the earlier mortgage, which was what he did. The question then is whether he can claim contribution from the other items, which were also included in the earlier mortgage. The decision relied on by the Subordinate Judge is In re Mainwaring: Mainwaring v. Verden (1936 (I) Ch. 96); and the proposition extracted by him is:

(3.) At this stage it will be instructive to advert to the other three propositions deduced from the same English decision as they appear at page 505 of Mulla's Transfer of Property Act, 4th Edition. They are: