SETH BANSIRAM JASHAMAL THROUGH HIS AUTHORISED AGENT AND MANAGING PARTNER, LILARAM Vs. GUNNIA NAGA AIYAR

JUDGEMENT

(1.) This revision petition arises out of an order passed by the Subordinate Judge of Madura directing amendment of the plaint in O.S. No. 76 of 1928 and the payment of additional Court-fee. He passed this order in consequence of his finding on the 3 issue which was argued as a preliminary issue.

(2.) The suit was filed by the plaintiff who was one of several mortgagees in a mortgage document, Ex. A, for Rs. 34,000. The document recites that the consideration of Rs. 34,000 was made up of the sums due on prior separate documents to the; mortgagees, namely, the plaintiff and defendants 5 to 10. There is no doubt that the amount of the mortgage money belonged in separate shares to the mortgagees so far as their interests inter se are concerned. But the question now is what is the correct legal position in a suit against the mortgagor when one of the mortgagees wants to sue. Section 67, Clause (d) of the Transfer of Property Act enacts: Nothing in this section shall be deemed to authorise a person interested in part only of the mortgage money to institute a suit relating only to a"corresponding part of the mortgaged property, unless etc.

(3.) This section does not prohibit a person interested in part only of the mortgage money instituting a suit to recover his share of the mortgage money only by framing the suit to relate to the whole of the mortgaged property but not to a corresponding part of the mortgaged property. Once the mortgagee frames his suit praying his relief for sale or for foreclosure so as to operate upon the whole of the mortgaged property, instead of a corresponding part of the mortgaged property, the obstacle of this section disappears. In this case the plaintiff has prayed for sale of the whole of the mortgaged properties. The mischief of the prohibition mentioned in Section 67 does not operate in the present case.