T A SESHA IYER Vs. SNSRINIVASA AYYAR

JUDGEMENT

(1.) The facts of this case are that plaintiffs, the second defendant and three other persons, brothers entered into a partition by means of Ex. A in 1913. The term of Ex. A with which we are concerned provided that " the common family debts should be discharged by the respective sharers to whom they fell, as per schedule of the document, and that, if any sharer failed to discharge accordingly, such sharer's properties should be liable for such debts and for the losses that might happen to the family." One of the debts which was assigned to the second defendant in the schedule was the debt due to one Venkatrama Iyer, and Venkatrama Iyer's assignee has since obtained a decree against the second defendant and the present plaintiffs in O.S. No. 542 of 1915 on the file of the court of the Principal District Munsif of Coimbatore. One term of the decree no doubt was that it should be executed against the plaintiffs only in so far as the decree amount was not realised by proceeding against the first defendant in that suit before the 9 September 1917. That period however had elapsed before the present suit was brought; and nothing is alleged to turn on that provision. The decree may be taken to Be executable against the second defendant and the plaintiffs.

(2.) Subsequently in O.S. No. 142 of 1916 on the file of the court of the Subordinate Judge of Coimbatore, the first defendant obtained a decree on an hypothecation given in respect of some of the pLalnt-mentioned properties by the second defendant after the said partition, and, in execution thereof, he brought the pLalnt properties to sale. The plaintiffs contend that, when, as evidently will be necessary, they have discharged the amount of the decree in O. S. No. 542 of 1915, which should have been discharged by the second defendant linder Ex. A, a charge in their favour will attach to the properties, which the first defendant is bringing to sale for the amount, which they have paid on behalfof the second defendant; and they have sued for a declaration that, under the terms of Ex. A, a mortgage right has been created in their favour to the extent of the decree amount in O.S. No. 542 of 1915 and that that right is prior to the mortgage right of the first defendant, and also for a declaration that the properties shall be sold subject to the mortgage right existing in favour of the plaintiffs.

(3.) The lower courts have given the plaintiffs the declaration asked for. The first ground on which we are asked to reverse their judgments is that the plaintiffs had no cause of action to ask for a declaration at the time, when they brought their suit; and the second, which is similar to it, is that the courts erred in the use of their discretion to give such declaration. The fact relied on is that the plaintiffs have not yet made any payment and, it is said, may never have to do so and that, till they make some payment, the charge cannot attach. The answer to this seems to us to be that no distinct and comprehensive rule as to the right to a declaration or the exercise of the Court's discretion in granting a declaration can be Laid down irrespectively of the circumstances of the particular case. Here the circumstances are that the liability of the plaintiffs was declared jointly with that of the first defendant in the decree of O.S. No. 542 of 1915,that in vie w of the failure to recover from the first defendant, the plaintiff's liability is not qualified and can at any moment be enforced against them. They may no doubt discharge it. But they will find it difficult to raise money to do so by assigning their charge on the property, and if they want so to raise money they will be greatly assisted by the declaration of the court. It is further material that in the course of the proceedings, by which the first defendant is bringing the property to sale, the plaintiff's did apply to have a reference to their charge included in the sale proclamation. We have not got the papers connected with that application, but it failed; and there is nothing to show us that the failure was due to any fault of theirs or to anything except the attitude of the first defendant. We can only infer that his attitude then as it is now, was to deny the plaintiff's right and in these circumstances we think that a suit for declaration will lie and that the lower courts used their discretion judicially and properly in granting it, subject of course to the conclusion, which we come to on the remaining objections to thejr judgments.