N. ANANTHAYYA HOLLA Vs. THIMMAJU HENGSU

JUDGEMENT

(1.) THIS second appeal is posted before this Bench on, an order of reference made by one of us (Govinda Menon, J.), and which runs thus:

(2.) IT is admitted that the mulgeni rent payable to the owner of the muli right was 24 muras of rice and Rs. 10 -10 -0 in cash. According to the evidence of the defendant examined as D.W. 1, the total income of the suit properties would be 40 muras of rice; whereas P.W. 1, the son -in -law of the plaintiff, would put it at 37 muras. But he spoke to 70 kattas of jaggery in addition and also the possibility of two crops in good years. We may therefore accept 40 muras of rice as the total income of the suit properties, as representing the annual value of the properties. Of that income, Ramayya Punja's half shire of muli right would be 12 muras of rice, so that, 28 muras would represent the interest of the mother, Subbu Punjathi. In other words, if contribution is levied under Section 82 in respect of the interest owned by the two mortgagors, it must be in the proportion of 28 : 12, and the defendant's contention, therefore, is that out of the total amount of the mortgage amount, his liability should be worked out on that proportion. The learned Counsel for the defendant who is the present appellant also pointed out that a sum of Rs. 250 was given credit to in the plaint as the arrears of Mulgeni rent due to his predecessor, Ramayya Punja, but that it had been deducted out of the total amount due on the mortgage. That sum of Rs. 250 for mulgeni rent was an amount payable to the defendant, and so, that should have been deducted not from the total amount of the mortgage, but from out of such amount as the defendant should be held liable for in respect of the mortgage. Both the lower Courts held, relying on Krishna Iyer v. : AIR1940Mad498 , that the plaintiff was entitled to throw the entire burden of the mortgage amount remaining due on the defendant's share, and accordingly passed a decree in favour of the plaintiff.

(3.) IN the first place, it will be seen that exception can come into play only where there is a person interested in a share only of the mortgaged property and seeking to redeem his own share only on a payment of proportionate part of the amount remaining due on the mortgage, and a mortgagor whose share the mortgagee had acquired. In other words, it contemplates more than one person owning a share in the mortgaged property, either jointly or in common, or, in separate portions. Therefore, if there is only one mortgagor owning the entirety of the mortgage security and if the mortgagee should acquire a part of the security, then, there can be no question of the said exception coming into play at all. In such a case, the purchase money may go in redemption of the mortgage amount, and the mortgagee will be entitled to enforce his mortgage against the remaining properties for the whole of the remaining amount due on his mortgage. Such was the case in Himmat Sahai v. : AIR1940Mad498 . In that case, the first defendant who owned two one -anna shares in a certain village executed a mortgage for Rs. 2,000 in 1913 in favour of the plaintiff's predecessor. Then, in 1914, in respect of the same shares, the first defendant executed a second mortgage in favour of the fourth defendant, the appellant in that case. Then in 1915, the first defendant, sold one of the two one -anna shares in favour of the plaintiff's predecessor for a sum of Rs. 1,500, It made no reference at all to the mortgage of 1913. The consideration of Rs. 1,500 was all paid in cash. Then, in 1920, the first defendant created two further mortgages in favour of the fifth defendant and somebody else. Finally, in 1925, he executed a further mortgage in respect of the remaining one -anna share in favour of the plaintiff's predecessor as a renewal of the mortgage of 1913; and it was on that mortgage that the suit was laid by the plaintiff for the full amount without giving credit for the one -anna share sold in 1915. It was contended for the fourth and fifth defendants that the effect of the sale of one -anna share in 1915 was not only to take that share out of the security but to extinguish half of the mortgage debt. No question of contribution arose in that case, because there was only one mortgagor, and from that mortgagor, the mortgagee purchased a part of the mortgage security. Therefore, the question that arose in that case was whether the value of that one -anna share should go in reduction of half the mortgage amount. The defendants' contention was upheld and the reduction contended for by them was allowed. In that sale -deed, there was no reference to the mortgage at all and the whole of the consideration of Rs. 1,500 was paid in cash. But still, the learned Judge held that the property might well have been worth Rs. 5,000 or even Rs. 10,000; that is to say that Rs. 1,500 did not represent the full value of the property and that what was sold for that amount was only the equity of redemption and therefore the mortgagee's interest in the property should be valued and adjusted towards the mortgage claim. In answering that question, the learned Judge had to consider whether the sale was only of the equity of redemption or of the whole of the mortgaged property; and he postulated this test: