NACHAPPA GOUNDAN Vs. SAMIAPPA GOUNDAN AND ANR.

JUDGEMENT

(1.) THIS second appeal raises several interesting questions relating to the law of subrogation and consolidation. The first defendant in the action is the appellant before us. The suit started as one for possession of the plaint mentioned property. The plaintiffs -respondents purchased the property in execution of a decree passed on foot of a mortgage executed on the 15th April, 1921; they got symbolical delivery and filed this suit for possession in 1941. The defence raised by the appellant is that before he is ejected, he should be paid Rs. 10,000 which was paid by him towards certain earlier mortgages. The trial Court upheld his plea but the Subordinate Judge awarded only Rs. 2,000 and disallowed the rest of his claim. Hence this second appeal.

(2.) THERE were five mortgages which have given rise to the several questions that arise for decision. One Komaraswami Goundan was the owner of the properties and he effected all the mortgages. The first mortgage was a usufructuary mortgage and the other four were simple mortgages. On the 21st June, 1916, Ex. D -8, a usufructuary mortgage, was executed for Rs. 2,000 to one Samiappan Goundan of items 1 to 3 of the plaint schedule and of another land not included in the suit. On the 13th June, 1917, a second mortgage evidenced by Ex. D -9 was executed for Rs. 2,000 in favour of two persons, Ramaswami, the appellant's father and another Thammanna Goundan. On the 29th August, 1918, there was a third mortgage Ex. D -6 for Rs. 1,000 in favour of Thammanna Goundan. On the 21st March, 1921, Ex. D -12, the fourth mortgage was executed for Rs. 1,000 in favour of the second defendant in the suit. On the 15th April, 1921, the fifth mortgage was executed for Rs. 2,200 in favour of one Chelliah Goundan and Chelliah assigned it to the plaintiffs -respondents. A suit was filed on the fourth mortgage, Ex. D -12, in O.S. No. 972 of 1925 on the file of the District Munsiff's Court of Dharapuram. The fifth mortgagee was also made a party and in execution of that decree the decree -holder brought the properties to sale and they were purchased on 29th March, 1927, by one Anga -muthu for Rs. 2,100. On 6th April, 1927, O.S. No. 414 of 1927 was filed on the fifth mortgage by the plaintiffs -respondents. On the 21st April, 1927, item 1 was sold to the appellant for a sum of Rs. 10,000 under Ex. D -7. The sum of Rs. 10,000 was left with the appellant, the vendee, for the purpose of paying Rs. 2,000 in respect of Ex. D -8 the first mortgage, Rs. 4,000 towards Ex. D -9 the second mortgage, Rs. 1,900 towards Ex. D -6 the third mortgage, and Rs. 2,100 for payment under Order 21, Rule 89 of the Civil Procedure Code to set aside the sale in execution of the fourth mortgagee's decree in O.S. No. 972 of 1925. The sale deed declares that there were no other encumbrances than those mentioned in the document and there is a covenant that if there should be any other encumbrances, the vendor should discharge the same from and out of his other properties. The purchase by the appellant was subsequent to the date of the plaint in the fifth mortgagee's suit and that has given rise to the trouble. The fifth mortgagee's suit ended in a decree and the respondents become the purchasers in execution of that decree. They tried to obtain possession but they could not get actual possession of the property. They however got symbolical possession and then commenced the suit out of which this second appeal arises for possession of the property.

(3.) THE appellant paid Rs. 2,100 into Court under Order 21, Rule 89 of the Civil Procedure Code and the sale which had taken place in the execution of the fourth mortgagee's decree was set aside on the 6th June, 1927. Thammanna who had a half share in the second mortgage and who was the sole mortgagee under the third mortgage assigned his interest in both the mortgages in favour of the appellant's father Ramaswami (the co -mortgagee under the second mortgage) and in favour of another Muthuswami. Thus Ramaswami became entitled to three -fourths of the interest in the second mortgage and to a half interest in the third mortgage and Muthuswami became entitled to a one -fourth right in the second mortgage and to a half right in the third mortgage. The appellant paid Muthuswami Rs. 2,325 being the amount due to him. On the 19th May, 1929, the amount of Rs. 2,000 due under the first mortgage was paid by the appellant and he got into possession of the suit properties. He was thus in possession when the plaintiffs -respondents after purchasing the suit properties in execution of the decree passed on the fifth mortgage attempted to take possession of the properties. As regards the sum due to Ramaswami, the appellant's father, the case is that the appellant and his father are members of a joint family and that Ramaswami and the appellant acted for the joint family of both in the several transactions and that the sums due to the family must be taken to have been discharged by the appellant's purchase. The appellant therefore claims that he should be paid the entire sum of Rs. 10,000 before he is compelled to give up possession.