MOOTHA MOHANRAJ SOWCAR Vs. MANICKA GOUNDAR

JUDGEMENT

(1.) THIS appeal arises out of a suit on a mortgage and the main question to be considered is whether the suit is not maintainable by virtue of Section 67 -A of the Transfer of Property Act introduced by the Amending Act of 1929. The 8th defendant is the appellant. The first defendant for himself and as guardian of his minor sons, defendants 2 and 4, executed in favour of one Kuppuswami Chetty a simple mortgage of the suit properties on 27th January, 1931, under Exhibit P. 1 for a sum of Rs. 1000. It is stated in the document that the sum of Rs. 1000 was required for discharging a decree debt due to one Ganeshmul Sowcar by the first defendant. Another simple mortgage was executed earlier on 20th January, 1931, by the first defendant for himself and on behalf of his minor sons in favour of the same mortgagee Kuppuswami Chetty over certain properties of his for a similar sum of Rs. 1000. After Kuppuswami Chetty's death his widow Kamalammal instituted a suit O.S. No. 502 of 1941 on Exhibit B -1 and obtained a decree on 22nd August, 1942 and took proceedings for realisation of the mortgage amount. She assigned the suit mortgage Exhibit P -1 on 21st June, 1943, by Exhibit P -3 to the plaintiff. The plaintiff has therefore instituted the suit as assignee -mortgagee of Exhibit P -1. Pleas were raised questioning the truth and validity of the assignment and about the absence of consideration for the mortgage. It was also contended that the suit was barred by limitation. All these contentions were held against by both the Courts and I am unable to find any ground for interfering with those findings. The objection under Section 67 -A of the Transfer of Property Act was taken, which was also negatived by the lower Court, the contention being that under Section 67 -A, Kamalam -mal should have sued on both the mortgages when she instituted the suit O.S. No. 502 of 1941 on Exhibit B -1 and she must also have included in the suit claim the suit mortgage Exhibit P -1 though the suit mortgage related to different sets of properties than those secured under the earlier mortgage Exhibit B -1, the mortgagee and the mortgagors however being the same.

(2.) SECTION 67 -A provides that a mortgagee who holds two or more mortgages executed by the same mortgagor in respect of each of which he has a right to obtain the same kind of decree under Section 67, and who sues to obtain such decree on any one of the mortgages, shall, in the absence of a contract to the contrary, be bound to sue on all the mortgages in respect of which the mortgage money has become due. When O.S. No. 502 of 1941 was instituted, the objection which was open to the mortgagors under Section 67 -A regarding the maintainability of that suit was not taken and the learned Subordinate Judge took the view that the plea should have been taken in the first suit itself and since Section 67 -A was intended to protect the mortgagors from being harassed by too many suits and to adjust all claims between the mortgagors and the mortgagee and since the mortgagors failed to raise the plea in the first suit, they must be considered to have waived their right and therefore the present suit could not be said to be not maintainable and that moreover as no penalty was provided for non -compliance with the provisions of Section 67 -A, the suit could not therefore be dismissed in limine. Section 67 -A obviously was intended to protect the interests of the mortgagor.

(3.) THAT the principle of Section 67 -A is to be inferred from the right granted to the mortgagor under Section 61 was the view taken by the Madras High Court in Duraiswami v. Venkataseshayya : (1901)11MLJ373 . In that case, in 1880, B executed a simple mortgage over certain lands in favour of A. In 1886, B mortgaged the same lands to A with possession. A brought a suit on the earlier mortgage for sale of the mortgaged property subject to the later mortgage. It was held that the suit could not be maintained and it was observed in the judgment at page 115 that Section 61 of the Transfer of Property Act implies that if the different mortgages are in favour of one and the same person, not in respect of different properties, but over the same property, the mortgagor cannot seek to redeem any one mortgage without redeeming the additional mortgages also and the same principle will be equally applicable to a mortgagee, having several mortgages over the same property, seeking to obtain an order for sale on one mortgage only.