AYYAPPAN RAMAN Vs. KUNJU VAKKI ITHAPPIRI

JUDGEMENT

(1.) These two Second Appeals arise from a suit for contribution instituted before the Ernakulam Munsiff's Court. The plaintiff who has preferred both the appeals is a second mortgagee (usufructuary) of three out of thirteen items of properties comprised in an earlier simple mortgage. The first mortgage, that is, the simple mortgage referred to, was brought into existence on 17-6-1093 (30-1-1918) by the members of an undivided Ezhava family and it was for a consideration of Rs. 900. Some time after that the family got itself divided and the eldest brother Kunjan got plaint schedule items 1 to 3, the second, Kochu Pillai, items 4 to 7, the third Kandu items 8 to 10 and the fourth, Padmanabhan items 11 to 13. The mortgage debt remaining impaid and the mortgagee having died, his successor-in-interest brought a suit in O.S. 426 of 1105 on the file of the Ernakulam Munsiff's Court for recovery of the debt. To that suit, among others, the four brothers and their mother, the present plaintiff (the appellant), defendant 1 and the predccessor-in-interest of defendant 4, were made defendants. In these appeals we are not concerned how defendant .1 happened to be made a party. Kochu Pillai sold one of the items he got in partition, namely, item 4, to the predecessor-in-interest of defendant 4 and gifted items 5 to 7 to his wife and children. The letter in their turn usufructuarily mortgaged those three items to a stranger and the plaintiff is a purchaser of that mortgage right. He (the plaintiff) was defendant 8 to O. S. 426 of 1105 and the predecessor-in-interest of defendant 4 was defendant 9. Besides defendant 4, defendant 7 (the mother of defendant 4) and defendants 8 and 9 have also now interests over item 4. Padmanabhan, the youngest brother who got items 11 to 13, had soon after the partition, created a further mortgage with respect to those items and the mortgagee brought O. S. 466 of 1102 to enforce payment of the money. In execution of the decree passed in that suit those properties were sold and defendant 2, a son of defendant 1 later acquired the rights of the execution purchaser. The puisne mortgagee of items 11 to 13 or any one to whom the puisne mortgage right or the decree obtained on that mortgage, had passed was not made a party to the first mortgagee's suit. The execution sale in the puisne mortgagee's suit was however after the institution of the first mortgagee's suit. Defendant 2 sold the right he obtained from the auction-purchaser in O. S. 466 of 1102 to his sister, defendant 3. Defendant 3 is therefore the present owner of items 11 to 13. We have noticed that the plaintiff is in possession of items 5 to 7 in the right of the usufructuary mortgagee over those items and that defendants 4 and 7 to 9 are the present owners of, or persons otherwise interested in, item 4.

(2.) During the course of the execution of the decree passed in the first mortgagee's suit (O. S. 426 of 1105) the decree-holder received some amounts from the owners of items 1 to 3 and 8 to 10 and released those items from all further obligations under the decree. Afterwards the decree was transferred to a stranger. While the assignee-decree-holder took out execution, the present plaintiff among others raised objections that the entire balance of the decree debt should not be allowed to be recovered from the remaining items. It was urged that the amounts realised from the owners of the items released were far below the amounts rateably chargeable on them. The execution court overruled the objection and the appeal preferred against the order was equally unsuccessful. The appellate court however directed that item 4 should be sold last and that only in certain eventualities. The present appellant took the matter in second appeal to the High Court in S. A. 117 of 1122 and by the decision rendered there, to which one of us was a party, items 4 to 7 and 11 to 13 were directed to be sold only for the amounts rateably chargeable on them. That is to say, that portion of the decree debt rateably chargeable on the items released was deemed to have been satisfied and the decree was held to be capable of execution only for the balance. This decision, as pointed out by the lower appellate court was passed with the consent of the assignee-decree-holder and the High Court directed the execution court to fix the quantum of the amounts rateably chargeable on the different items or groups of items, as circumstances might require. When the case went back to the execution court the present appellant took the necessary steps to have the proportionate amounts for the different items or groups of items fixed. After due enquiry the execution court found that an amount of Rs. 1,737-2-10 out of the entire debt was chargeable on items 4 to 7 and 11 to 13. The court also fixed in what proportion item 4, items 5 to 7 and items 11 to 13 should contribute towards the said amount. Even after all these proceedings the persons liable to pay off the different amounts did not do anything to pay them and the assignee-decree-holder had therefore to take out further execution. According to the plaintiff in collusion with defendant 3 and defendants 4 and 7 to 9, the assignee-decree-holder was seeking to sell items 5 to 7 first. To avert the sale of those items the plaintiff paid the entire balance decree debt and the decree was got recorded as satisfied. This was on 13-11-1951 and the amount paid was Rs. 1,763/-.

(3.) Soon afterwards on 27-11-1951 the present suit was instituted for contribution claiming the amounts rateably chargeable on item 4 and items 11 to 13. Out of the amount of Rs. 1,763/- which he had to pay to satisfy the mortgage decree, the plaintiff gave credit for the amount chargeable on items 5 to 7 and claimed only the balance. Defendants 1 to 4 and 7 to 9 filed separate written statements raising various contentions. Defendants 5 and 6 were made parties as they were kudikidappukars in some items and they did not enter appearance in the suit. Defendants 1 and 2 disowned all present interests in any of the concerned items, but their written statements fully supported the contentions raised by defendant 3. The sequel will disclose what contentions defendant 3 and defendants 4 and 7 to 9 raised to the suit and we consider it unnecessary to set out them at this stage. The learned Munsiff in a well-considered judgment negatived all the contentions raised by the contesting defendants and gave a decree to the plaintiff in the sum of Rs. 384/- with interest at 6 per cent, per annum from the date of the suit and for proportionate costs with interest at 6 per cent, (from the date of the decree) against item 4 and a decree in the sum of Rs. 811/-with like interest and proportionate costs and interest thereon against items 11, to 13. Besides, the contesting defendants were made personally liable for proportionate costs. The basis of the decree was that out of the amount of Rs. 1,763/- paid by the plaintiff to discharge the decree debts in O. S. 426 of 1105, a sum of Rs. 384/was chargeable on item 4, that a sum of Rs. 507/-was chargeable on items 5 to 7 and a sum of Rs. 811/- was chargeable on items 11 to 13. Against this decree defendants 4 and 7 to 9 preferred an appeal before the Anjikamal District Court in A. S. 128 of 1954 and defendant 3 soon followed suit with A. S. 132 of 1954. The learned Second Additional District Judge, before whom the appeals came up for hearing disposed of them by a common judgment allowing the appeals and dismissing the plaintiff's suit with costs to defendants 3, 4 and 7 to 9. These second appeals by the plaintiff are directed against the said decision, S. A. 463 of 1955 being against the decree passed in A. S. 128 of 1954 and S. A. 464 of 1955 against the decree passed in A. S. 132 of 1954. The second appeals first came up for hearing before one of us (Varadaraja Iyengar, J.) sitting alone and in view of the importance of the questions raised, by the order quoted below, dated 8-10-1956, the second appeals were referred to a Division Bench for decision: