SUBBAMMAL Vs. MUTHU PATHAN

JUDGEMENT

(1.) The plaint is not drawn up with sufficient clearness to disclose exactly the cause of action on which the suit is based nor does it appear clearly that the property over which the plaintiff claims a charge was purchased subject to a pre-existing mortgage which the plaintiff undertook to discharge. In O.S. No. 22 of 1893, the plaintiff relying upon his title as purchaser sued to eject the defendant, but it was held by the Court of appeal that the defendant was the real purchaser and that the sale deed was taken only nominally in plaintiff's name. The finding therein being conclusive in the present suit, the plaintiff now sues to recover the sum of Rs. 311-5-6 as a charge upon the said property on the ground that he paid the principal of that sum, partly on the 21 May 1892 and partly on the 15 March 1893, to one Krishna Pathan in discharge of a mortgage on the said property made to him by the plaintiff himself on the 16 April 1888 ; and as appears from para, 3 of the District Munsif's revised judgment the plaintiff's case seems to . be that Krishna Pathan's mortgage is connected with the discharge of the original mortgage subject to which the property in question was brought for the defendant in the name of the plaintiff. This however is not clearly stated in the plaint nor established by evidence. The defendant, however, in her deposition admits that the mortgage in favour of Krishna Pathan was made for her benefit and with her consent, and her plea was that the said mortgage was discharged by the plaintiff with her own money and that therefore he is not entitled to recover it from her. Both the Courts below concur in finding that her plea is false and/that the plaintiff discharged Krishna Pathan's mortgage with his own money, and they passed a decree in him favour for recovery of the same as a charge upon the property, the claim to recover it a.?-a debt being dismissed as barred by the law of limitation.

(2.) The only question for determination, therefore, in this appeal is whether the plaintiff has acquired a charge upon the property by his having discharged the mortgage-debt to Krishna Pathan. That mortgage having been made by the plaintiff with the consent of the defendant and for her benefit, it was a valid incumbrance on the property as against the defendant, and the plaintiff having made himself liable, at the defendants's request for the debt contracted from Krishna Pathan, he cannot be regarded as having paid Krishna Pathan's debt officiously or as a mere volunteer. As between himself and the defendant, the latter was bound to discharge the same and she not having done so, the plaintff discharged the obligation he was under to Krishna Pathan and by such payment relieved the property, for the benefit of the defendant, from Krishna Pathan's incumbr ance. Under these circumstances, the decision of the Privy Council in Bhagwati Prasad V/s. Radhakishen I.L.R. 15 A. 304 a clear authority that the plaintiff is entitled in equity to have it declared that the amount claimed by him is a charge upon the property.

(3.) In that case, in execution of a money-decree, the judgment-debtor's property was attached and brought to sale and the same was by desire of the judgment-debtor (Bir Bhaddar and for his benefit, purchased, by Nandan Tewari (his agent) who, by hypothecating the property to one Sargu Prasad raised a loan and paid the same into Court to complete the purchase. Sargu Prasad brought a suit on the mortgage bond against Nandan Tewari, the ostensible purchaser and in execution of the decree which he obtained on the mortgage, become the purchaser of the mortgaged property. In a suit subsequently brought against Sargu Prasad, by Bir Bhaddar, it was however held by the Indian Courts that Sargu Prasad was aware that Nandan Tewari was only a benami purchaser and that therefore, the mortgage which he obtained from him, the decree thereon and the sale in execution thereof were invalid as against Bir Bhaddar. Sargu Prasad thereupon brought a suit against Bir Bhaddar and Nandan Tewari for the recovery of the amount lent by him to Nandan Tewari on the mortgage executed by the latter and claimed to enforce payment of the same also as an equitable charge upon the property in the hands of Bir Bhaddar even if the mortgage as such was not binding upon him. On appeal by Sargu Prasad, the Judicial Committee of the Privy Council in giving a decree in his favour stated as follows (at page 309): "After the judgment in the former suit it might be difficult to hold that the deed executed by Nandan Tewari . was a valid hypothecation of the property, and it is not necessary to decide that question. The facts admitted by Bir Bhaddar and also found by the Court in the former suit between these parties are sufficient to show that the appellant (the representative of Sargu Prasad) is entitled in equity to have it declared that the sums claimed with interest are a charge upon the property."