GOVINDA PADAYACHI Vs. LOKANATHA AIYAR

JUDGEMENT

(1.) The items of property in dispute in this appeal, Nos. 5 to 7 were hypothecated by their owners, 1st and 2nd defendants, in 1897 by Exhibit II and mortgaged with possesion in 1901 by Exhibit III. In 1902 one Krishna obtained a money decree against 1st and 2nd defendants and in 1906 brought to sale and himself purchased these items, but has not succeeded in obtaining possession. In 1913 however Exhibits V and VI purpoting to be sale deeds of the property, were executed by 1st and 2nd defendants to one Siraimittan and 11th defendant, now represented by 8th, 13th and 14th defendants, the present appellants, with recitals showing that the two documents were really interdependent, the consideration consisting in the discharge of Exhibits II and III and the payment of Rs. 200 to 1st and 2nd defendants for payment to Krishnier " in discharge of the amount of his auction sale certificate " that is, as appellants say, as consideration for the repurchase from him of the property. In fact only Exhibits II and 111 were discharged, appellants obtaining possession from the mortgagee under the latter. But, 1st defendant alleges owing to nth defendent s default, although there is no finding on this point, the Rs. 200 were not paid to Krishnier and appellants therefore have never completed their title as owners of the property. Their defence also included objections to the validity of Krishnier s purchase in execution. But they are not relied on here. The question argued is whether appellants are entitled to retain possession against plaintiff, successor in interest of Krishnier, or whether he can eject them only either on payment to them of what they spent on the discharge of Exhibits II and III or, if they cannot have credit for discharge of those documents, after completing his rights immediate possession against the mortgagee under the latter by himself discharging it.

(2.) In supporting the first of these alternative contentions, appellants admit that they cannot rely on any ordinary right of subrogation, since they cannot and do not contend that Exhibits V and VI conferred on them any immediate interest in the property, which their payments were intended to protect. Cases, such as, Syamalarayudu v. Subbarayudu (1897) 7. L.R. 21 Mad 143. Palamalai Mudaliar v. The South Indian Export Co. (1909) I.L.R. 33 Mad. 334, and Karuppan Ambalagaran v. Mohammad Sakuth Levvai (1918) I.L.R. 26 M.L.J. 74 are accordingly irrelevant, because in them payments by a person claiming at their date a direct and completed interest in the property protected were in question, in the two first the payment being made consistently with ownership under a transfer, valid, unless and until in the one case a prior transferee and in the other the transferor s creditors attacked it, whilst in the third the payment was regarded as officious, because the transfer, on which the right to make it was based, was regarded as nominal and conferring no rights. These cases deserve mention only, because they involve what Gurdeo Singh v. Chandrlkah Singh and Ghandrikan Singh v. Rashbehari Singh (1907) I.L.R. 36 Cal. 193. (1907) I.L.R. 36 Cal. 193 and Narayana Kutti Goundan v. Pechiammal (1911) I.L.R. 36 Mad. 426 enunciate directly that "the doctrine of subrogation is not applied for the mere stranger or volunteer, who has paid the debt of another, without any assignment or agreement for subrogation, without any obligation to make the payment and not being compelled to do so for the preservation of any right of his own ". Appellants claim is first that they paid as assignees under Exhibits V and VI of the right of 1st and 2nd defendants, the mortgagors, to redeem and that such payment entitles them to possession in place of the usufructuary mortgagee.

(3.) The right of the mortgagor thus relied on is that recognised in Sections 60 and 91 of the Transfer of Property Act; and there is no doubt that it is recognized there as exercisable by the mortgagor and enforceable by him by suit without restriction. It is however argued that this right was not assigned to appellants by Exhibits V and VI and in any case could not have been exercised by the 1st and 2nd defendants, or by appellants, when the letters payments were made, because the former had lost all interest in the mortgaged property at that time and had also ceased to be personally liable.