ESSAK PAKIANATHAN Vs. THANU PILLAI KRISHNA PILLAI

JUDGEMENT

(1.) The 16th defendant is the appellant. The suit was for redemption of two mortgages Exhibits A and C executed by Bhagavathi Sankaran. Exhibit A dated 18-11-1056 was in respect of item No. 1 in the plaint schedule. One Ayyan Joseph obtained an assignment of the mortgage right and he also took another mortgage Exhibit C dated 4-12-1062 from Bhagavathi Sankaran in respect of item No. 2 and other properties. On the date of suit the mortgage right under Exhibits A and C vested in defendants 1 to 7. Defendants 8 to 19 were impleaded as subsequent encumbrancers of the property sought to be redeemed. There was a partition in the family of Bhagavathi Sankaran in the year 1106 (Exhibit D) and the plaintiff purchased the equity of redemption of items 1 and 2 from the persons who obtained the same in partition. The 16th defendant who was a sub-mortgagee in respect of 12 cocoanut trees in item No 2, contested inter alia that the suit being one for partial redemption was not maintainable. It is unnecessary to refer to the other contentions as this question alone was raised in Second Appeal. The courts below overruled this contention on different grounds and gave the plaintiff a decree for redemption on payment of value of improvements. The 16th defendant has therefore preferred this Second Appeal.

(2.) The ground on which the lower appellate court held in favour of the maintainability of the suit was that the mortgagees having no objection to partial redemption, it was not open for the 16th defendant to raise such a plea. The only question which therefore arises for decision is whether it is open for a sub-mortgagee to resist a suit for redemption on the ground that it is one for partial redemption, when the mortgagees do not raise such an objection. It was urged on behalf of the appellant that though there is no privity of contract between the mortgagors and the sub-mortgagees there is privity of estate between them and that the sub-mortgagee is entitled to raise this plea. Reliance was placed on the decision in Muthu Vijia Raghunatha Ramachandra Vacha Mahali Thurai v. Venkatachalam Chetti (ILR 20 Madras 35). It was held in that case that a sub-mortgagee was entitled to a decree for the sale of the original mortgagors interest in cases and in circumstances which would have entitled the original mortgagee on the date of the sub-mortgage to claim such relief. I do not think this decision is helpful to the appellant. The question which arises here does not appear to have been decided in any reported case. On general principles it appears to me that the appellant is not entitled to succeed. In Lysaght v. Westmacott (55 ER 429) relied on by Devadoss, J., in Venkatarama Ayyar v. Rangaswami Chetty ( AIR 1927 Mad. 703 ), Sir John Romily M. R. observed there may be a number of questions in contest between the mortgagee and sub-mortgagee, but the mortgagor cannot be kept out of his estate until they have been settled. In cases like the present, the Court orders the money into Court and then allows the mortgagee and the sub-mortgagee to contest their right, but the mortgagor is allowed to go free. So far as the 16th defendant is concerned, there is no privity of contract between himself and the mortgagor. In Gouri v. Lekshmi (AIR 1953 TC 271) Sankaran, J. observed that there could not be any privity of contract or estate between a mortgagor and the sub-mortgagee. The claims that the 16th defendant has are against his mortgagors only. It may also stated that so far as the 16th defendant is concerned, he does not suffer any prejudice by the decree for partial redemption.

(3.) The appellant has filed an application as C. M. P. No. 319 of 1957 for adding one more ground to the memorandum of appeal. I have allowed the same