SAMI PILLAI Vs. RAMULU NAIDU

JUDGEMENT

(1.) THE revision petitioner, who was the first defendant in the court below, granted a usufructuary mortgage in respect of his properties for Rs. 10,000/-in favour of the plaintiff-first respondent on 17-7-1963. At the time of the mortgage, he owed two loans to the Government upon the security of the lands which he mortgaged to the plaintiff. He, therefore, expressly undertook in the deed of mortgage to discharge those loans from and out of his properties other than those covered by the mortgage dated 17-7-1963. The mortgagee entered possession of the hypotheca and leased out the lands to one Manickam for cultivation. The crops raised by Manickam were attached by the Government, because the petitioner defaulted to pay an instalment due under the Government loan. Consequently, the plaintiff paid Rs. 434 to the Government, and had to attachment lifted. It was to recover this amount from the mortgagor that he instituted a suit on the small cause side of the District Munsif's Court, Tiruvannamalai. The main contention raised by the defendant was that under the Revenue Recovery Act, the mortgagee is entitled to a charge in respect of the amount of Rs. 434 paid by him, and consequently, the Small Cause Court had no jurisdiction to entertain a claim, which was in the nature of a charge on the mortgaged property. This contention was repelled by the Small Cause Court and a decree was granted as prayed for against the petitioner. It is against this decree that the present revision petition has been filed.

(2.) UNDER Section 69 of the Indian Contract Act, a person who is interested in the payment of money which another is bound by law to pay, and who therefore pays it, is entitled to be reimbursed by the other. The mortgagee, whose tenant had raised crops in the land, was certainly interested in getting the attachment raised by paying the Government the instalment which the mortgagor had defaulted to pay. It may be that under the Revenue Recovery Act, the person paying would be entitled to a charge which is provided for, not for the benefit of the defaulter but for the benefit of the person paying. Consequently, the person who makes the payment has the option to enforce the charge or not. Where a variety of reliefs are available to the plaintiff, it is not open to the defendant to force him to choose just that relief, which would enable him to resist it on the ground of want of jurisdiction. Nor is there any obligation under the law for a mortgagee, who had made a payment of the kind in question, to tack on the amount paid to the mortgage money and wait for reimbursement till he chooses to file a suit upon the mortgage. I therefore hold that the contention that a charge necessarily inheres in the plaintiff's claim for reimbursement and consequently the claim must be brought on the original side is untenable.

(3.) LEARNED counsel for the petitioner relies in support of his contention upon a ruling reported in Rajkumarlal v. Jaikarandas, 1920-5 Pat LJ 284 = (AIR 1920 Pat 521 ). In that case, a mortgagee, who had paid the arrears of Government revenue in order to prevent the mortgaged property being sold, sued the defendant, who had purchased the property subsequently to the mortgage, in the court of the small causes for recovery of the arrears paid. The defendant pleaded that the mortgage was not genuine. The Small Cause Court declined to decide the question of the genuineness of the bond on the ground that it was beyond the scope of the suit, and decreed the suit. In these circumstances, a single Judge of the Patna high Court, held (1) that in order to determine whether the mortgagee was entitled to deposit the arrears of revenue, it was incumbent on the court to determine whether the bond was genuine or not, and that the omission to do so amounted to an error in law, so that the High Court had power to interfere under section 25 of the Provincial Small Cause Courts Act. 1887; (2) that if the court was of opinion that the question of genuineness of the bond was beyond the scope of the suit it was incumbent on the court to exercise the discretion vested in it by section 23 and return the plaint to be presented to the proper court, and failure to do so brought the case within the purview of Section 25; (3) that if the alleged mortgage was genuine, the amount paid as arrears of revenue should have been added to the mortgage debt under Section 9 of the Revenue Sales Act 1859 and that even if the plaintiff's lie was not in fact a mortgage, it was a charge upon immoveable property within the meaning of Sec. 100 of the Transfer of Property act, 1882 read with O. 34, R. 15, Civil P. C. 1908, and could only be enforced by a suit under Order 34; (4) that even if the plaintiff was entitled to relinquish his lien and claim a money decree, the present suit not having been framed as such, he could not succeed.