GOVINDA KANGANI Vs. MURUGESA MUDALI

JUDGEMENT

(1.) Defendant 1 is the appellant. The facts necessary for the disposal of this second appeal may be briefly stated as follows : The plaintiff brought a suit for a declaration of his rights as a charge-holder to the extent of Rs. 480 over the suit properties which consist of two items. Item 2 belonged to defendant 2 and item 1 was purchased in his name and in the name of his concubine, Lakshmi Am-mal, but having regard to the findings both the items should be treated as belonging to defendant 2. Item 2 was mortgaged by him on 1 March 1910 to one Shankarappa Mudali. He and his concubine afterwards mortgaged both the items to the same person for Rs. 100 on 2 May, 1910 (see Ex. C-1). On 2nd December 1918 one Shunmugarn Chetty and one Narayanaswami Chetty obtained a decree in O.S. No. 530 of 1918, against defendants 2 to 4. Defendant 1 obtained an assignment of this decree. The suit properties were attached in 1919 and sold; and were purchased by defendant 1. On 2 October, 1920 while the properties were under attachment a portion of item 1 was sold to the plaintiff by the mortgagor, i. e., defendant 2: sea Ex. A. It mentions that the amount of Rs. 250 mentioned therein was borrowed to discharge the mortgage debts of Sankarappa Mudaly and one Annammal with whose mortgage we are not concerned in the present case. On 10 October 1920 he paid off Rs. 480 to Sankarappa Mudali, who held, as already stated, mortgages over both the items. On 26 October 1920, i. e., 16 days afterwards, the remaining portion of item 1 and item 2 were mortgaged to the plaintiff: sea Ex. B. It mentions that the plaintiff discharged the mortgaged debt of Sankarappa Mudaly. " It is clear from the recitals in Exs. A and B " as stated by the learned Subordinate Judge that Lakshmi Ammal borrowed, money " from the plaintiff to discharge the prior mortgage debts " on those properties. As regards the exact amount borrowed, the lower Courts accepted the evidence of the plaintiff that he paid Rs. 480 into the hands of Sankarappa Mudaly and thereby discharged his mortgages over the two items. These facts are not disputed by the appellants. The lower Courts found that inasmuch as the sale and the mortgage to the plaintiff were after the attachment of the properties by the decree-holders in O.S. 530 of 1918, Exs. A and B were void under Section 64, Civil P. C, as against defendant 1. This position is not disputed by the plaintiff- respondent. What ha argued was that though the sale and the mortgage are invalid transactions, since he paid off the mortgages over the two items in favour of Sankarappa Mudaly, he should be considered in law to be subrogated to the mortgage rights of Sankarappa Mudaly over the suit pro-perties to the extent of Rs. 480. This argument was accepted by the lower Courts and a declaration was given to that effect in plaintiff's favour. I may here state that the parties agree that of the sum of Rs. 480, Rs. 230 may be taken to represent the mortgage over item 1.

(2.) It will be observed from the facts narrated above that at the time when the plaintiff discharged Sankarappa Mudaly's mortgage over items 1 and 2 (that is 10 October 1920) he had purchased only item 1 barring 5 cents of it; and he obtained a subsequent mortgage, Ex. B in his favour over the two items, only 16 days after the actual payment. The sale and mortgage being invalid (and treating the non purchase of 5 cents of item 1 on 2 October, 1920 as immaterial for the purpose of his argument). Mr. Viswanatha Ayyer contends that the plaintiff is entitled to be subrogated to the rights of the mortgagee Sankarappa Muddy only with respect to item 1 (that is, to the extent of Rs. 230) and not with respect to his rights as mortgagee over item 2, inasmuch as at the time when ha paid off Sankarappa Mudaly he had not acquired any rights to item 2 at all.

(3.) With respect to the mortgage over item 2 the argument of the learned advocate is that the plaintiff should be considered to be a mere volunteer; and that therefore the lower Court was wrong in having given him a decree declaring a charge on the properties to the full extent of Rs. 480. I do not think that this argument was put forward in the lower Court. The first Court gave the plaintiff a declaration stating that he was entitled to the mortgagee's rights of one Annammal also over the properties, and the main question for the appellate Court's decision was whether this was so or not. I have not stated in this judgment the facts relating to the controversy on this point. The lower appellate Court found in favour of the appellant regarding Annammal's mortgage and to that extent modified the decree of the District Munsif with the result that the plaintiff got a declaration in his favour only to the extent of Rs. 480 relating to one Sankarappa Mudaly's mortgages. However as the question now argued is one of law; arising on undisputed facts and as a general ground was taken in the memorandum of appeal to the lower appellate Court-see ground 4 that the alleged payment made by the plaintiff of the mortgage debts are" all voluntary"-I allowed the appellant to argue the point. If the basis of the plaintiff's right is clearly understood it will be seen that the appellant's arguments should be rejected. Inasmuch as it should be taken that the sale under Ex. A is invalid and it confers no rights on the plaintiff, his right to recover the money due on the mortgage on item 1 paid off by him to Sankarappa Mudaly must stand in my opinion on the same footing as his right to recover the money paid by him to clear off the mortgage on item 2. I am mentioning this not for the purpose of inviting the conclusion that if the plaintiff's right to the mortgage money due on item 1 is conceded it must follow that his rights to the mortgage money on item 2 should also be declared. I am only mentioning this to show that the plaintiff's right as regards the two items must in law stand on the same footing. I shall now explain what that footing is. By the decree in O.S. No. 530 of 1918 and the subsequent execution proceedings the appellant purchased items 1 and 2 subject to Sankarappa Mudaly's mortgage rights over them. It cannot be disputed that defendant 2, the owner of the properties had an interest in paying off the mortgage to Sankarappa Mudaly. Ha could keep that charge on the mortgage properties alive in his favour by satisfying the mortgage claim if it was in his interest to do so. I think the plaintiff could claim the same benefit by virtue of his having paid that mortgage amount to Sankarappa Mudaly at the instance of defendant 2. If defendant 2 could claim to stand in the shoes of the mortgagee then it must follow the plaintiff claiming through him is also entitled to occupy the same position as defendant 2. In this case there is no doubt that though the actual payment of the mortgage amount to Sankarappa Mudaly was made by the plaintiff it was done at the instance of defendant 2. As stated in the judgment of the lower appellate Court it is clear from the recitals in Ex. A that Lakshmi Ammal (identical with defendant 2 as the owner) borrowed...to discharge the prior mortgage debts.