BANGARU AMMAL Vs. M V KUPPUSWAMI CHETTIAR

JUDGEMENT

(1.) THIS is a simple appeal; but a question of law is raised on facts which are plain and undisputed. The appellant claims a right of subrogation to the extent of Rs. 850 under Section 92 of the Transfer of Property Act in the following circumstances.

(2.) THE first respondent, who is now dead and is represented by his legal representatives, respondents 2 to 5, instituted the suit, O. S. No. 5o of 1956, Sub court, Tiruchirapalli, for recovery of money due on a simple mortgage dated 1-111944 in his favour executed by the first defendant in the suit. Items 1 to 3 of the plaint schedule properties belonged absolutely to the first defendant. Defendants 2, 3 and 4 were impleaded as puisne mortgagees, holding usufructuary mortgages, of items 1 to 3 respectively. The first defendant held only mortgage rights over items 5 and 6 of the plaint schedule and the fifth defendant was impleaded as he claimed a vendor's lien over these items. The fourth defendant, who was the usufructuary mortgagee of the plaint item 3 resisted the suit, questioning the truth and validity of the mortgage sued upon, and also claiming priority to the extent of Rs. 850, in respect of that item relying upon the doctrine of subrogation. The learned Subordinate Judge found that the suit mortgage was true, valid and supported by consideration and negatived the right of subrogation. He passed the usual preliminary mortgage decree for the suit amount and granted two months time for redemption. This appeal is by the fourth defendant against the said judgment and decree. The mortgagor first defendant has been adjudicated as insolvent pending the appeal and the Official Receiver in charge of his estate is now the sixth respondent before me.

(3.) THE necessary facts, on which the appellant's claim for priority to the extent of rs. 850 rests, may now be stated. Plaint item 3 was originally owned by one kaveri Ammal. She executed an othi deed (usufructuary mortgage) in favour of one Nagammal under a registered document dated 9-9-1940, to secure a debt of rs. 850. The first defendant purchased the property from Kaveri Ammal under a conveyance dated 21-5-1954, agreeing to discharge Nagammal's mortgage in part payment of the consideration due for the purchase. He failed to do so, and executed an othi deed dated 4-4-1947 in favour of Radhakrishnammal securing a debt of Rs. 1600. He got Rs. 750 cash from Radhakrishnammal and directed her to discharge Hagammal's mortgage. Radhakrishnammal paid Rs. 850 to Nagammal, discharged her mortgage and obtained possession of the hypotheca. On 23-51954. Radhakrishnammal assigned her mortgage right to the fourth defendant for proper consideration and thus the fourth defendant came to occupy the position of an usufructuary mortgagee. Her contention is that Radhakrishnammal got sub rogated to the rights of Nagammal who was a prior incumbrancer to the plaintiff. As already stated, the plaintiff obtained the suit mortgage only on 1-11-1944. The fourth defendant as the assignee of Radhakrishnammal is entitled to stand in her shoes, but the question is whether Radhakrishnammal has a valid claim of subrogation under Section 92 of the Transfer of Property Act, in respect of nagammal's mortgage which she admittedly discharged.