THIRUMALASUBBU CHETTIAR Vs. RAJAMMAL

JUDGEMENT

(1.) THIS appeal originally came on for hearing before Subrahmanyara J. who considered that it was necessary to have an authoritative ruling by a Bench of this court on the question which arose in the case. The facts have been set out by the learned Judge in his order of reference and may briefly be mentioned.

(2.) THE properties described in schedules A and B belonged to two brothers Nagappa and Angappa. Both of them usfructuarily mortgaged the properties under Ex. A -1 on 20 -9 -1924 in favour of two persons, Eswara Nagasubramania lyer and Sambamoorthi Ganapatigal for a sum of Rs. 3000. Nagasubramania lyer assigned his share in favour of one Subramania Ganapatigal on 3 -10 -1939. One Ramanathan Chettiar obtained a money decree against the two brothers, Nagappa and Angappa, and in execution of that decree purchased the properties in 1928 subject to the usufructuary mortgage After his purchase Ramanathan Chettiar sold the properties described in schedule A to the defendant for Rs. 3000 under a sale deed dated 5th April 1948. It was provided in and by that sale deed that the said consideration of Rs. 3000 should be paid by the defendant to redeem ' the usufructuary mortgage and after taking possession of the properties from the mortgagees she should deliver possession of the properties in B schedule to the vendor, Ramanathan Chettiar.

(3.) AT the same time we are clearly of the opinion that the plaintiff's claim is well founded. The learned Judge Subrahmanyan J. took the view that the decision in 32 MLJ 347 : (AIR 1918 Mad 1012) conclusively negatived the plaintiff's claim under Section 69 of the Contract Act. That case actually dealt with a question of the interpretation of Section 82 of the Transfer of Property Act. There, the owner of a mortgaged property had sold portions of the property to three different purchasers directing each one of the purchasers to pay a particular sum of money to discharge the mortgage. The mortgage was not discharged and there was a suit by the mortgagee. That debt was eventually discharged by the three purchasers. One of the purchasers brought a suit for contribution against the other purchasers alleging that he had paid more than he was bound to pay under his sale deed. All that was held in that case was that the liability to contribute under Section 82 of the Transfer of Property Act was founded on the liability relating to the property did not rest on personal obligation. In that case the learned Judges were not inclined to uphold the plaintiff's claim on the basis of the provisions of Sections. 69 and 70 of the Contract Act. The relevant: observations of the learned Judges are these: