OFFICIAL ASSIGNEE OF MADRAS Vs. FBYRAMSHAW

JUDGEMENT

(1.) This summons raises a point which is of importance, and, so far as India is concerned, is a point of first impression, there being, so far as I am aware, no reported case dealing with the matter in question, although Thanmul Sowcar v. Ramadoss Reddiar (1927) I.L.R. 51 M. 648 : 55 M.L.J. 358 is a case which glances at it. Having had the advantage of the argument by the Advocate-General assisted by Mr. Duraiswami Aiyar, I assume that there are no cases in India as I am sure, had there been, they would have brought such cases to my attention.

(2.) The points raised are two, firstly, does the doctrine of rateable apportionment apply in India in virtue of the provisions of the Transfer of Property Act or otherwise, and secondly, if it does apply, can it be applied in the circumstances of this case? This is one of those cases where the same mortgagor mortgages two properties (in this case "Bonaly" and "Maid-stone," which can be related to A and B which I shall hereafter mention) both together and each separately. The question that falls to be considered is whether (the mortgagee, who is the mortgagee of both, having elected to take the mortgage debt out of one) a subsequent second mortgagee of that one can claim to have the debt of the other mortgagee, who is mortgagee in respect of both, rateably apportioned between the two properties in accordance with the values of those properties so as to leave the said second mortgagee a fair share of the equity of redemption of that property over which he has a mortgage ?

(3.) As to the first of the two questions above mentioned I am satisfied that there is a distinction on the one hand between contribution and rateable apportionment and on the other between rateable apportionment and marshalling.