SITARAM APAJI KODE Vs. SHRIDHAR ANANT PRABHU

JUDGEMENT

(1.) The principal question of law argued in this second appeal is whether, where property is mortgaged to one person and that person subsequently dies, leaving two or more heirs jointly entitled to his estate, payment made by the mortgagor of the amount due on the mortgage, to one of those heirs, without the concurrence of the rest, amounts to a valid discharge to the mortgagor. The District Judge has held that it does, relying on the authority of the ruling of the High Court of Madras in Barber Maran V/s. Ramana Goundan (1897) 20 Mad. 461. That decision is based upon the English case of Wallace V/s. Kelsall (1840) 7 M. &. W. 264 and the last paragraph of Section 38 of the Indian Contract Act, which provides that "an offer to one of several joint promisees has the same legal consequences as an offer to all of them."

(2.) So far as this Madras decision proceeds upon the English law, its correctness may well be doubted, having regard to the decision of Farwell, J., in Powell v. Brodhurst (1901) 2 Ch. 160. It is not, however, necessary for us to express any opinion on the correctness of the decision in Barber Maran V/s. Ramana Goundan (1897) 20 Mad. 461 and the construction put there upon the last paragraph of Section 38 of the Indian Contract Act. In that case the payment was made to one of several joint mortgagees, and it may well be that in such a case where a mortgagor has mortgaged his property to several mortgagees holding jointly, and promised to pay his debt to them before redeeming, an offer of payment to one of the promisees has, under the lash paragraph of Section 38 of the Indian Contract Act, the same legal consequences as an offer of payment to all of them. But where, as in the present case, the mortgage was made not to several persons jointly but to one person, there was only one promisee, and the case cannot fall within the meaning of the last clause of Section 88 unless the several heirs of the promisee, who, on his death, inherit his estate, are to be regarded an joint promisees. There is nothing either in Section 38 or in the definition of "promisee" in the Indian Contract Act to show that they must be so regarded. The right which the several-heirs jointly get on the mortgagee's death to enforce the mortgage is a right created by law in consequence of the devolution upon them of the single and indivisible right which the mortgagee had as the sola promisee, and not in consequence of their being "joint promisees." In the words of Tindal, C.J., in Deeharms V/s. Borwood (1834) 10 Bing. 526 several co-heirs constitute one heir and are connected together by unity of interest and unity of title. One of the heirs, therefore, cannot enforce the mortgage without the concurrence of the rest TO as to give a valid discharge to the mortgagor and free the mortgaged property from the incumbrance.

(3.) It is to be remarked that the flame view is taken of the law in Ahinsa Bibi v. Abdul Kader Saheb (1901) 25 Mad. 26 p. 39. In that decision Bhaghyam Ayyangar, J., after doubting whether the case of Barber Maran V/s. Ramana Goundan (1897) 20 Mad. 461 was rightly decided, goes on to say: "It may be that when money is advanced to one by several persons jointly, each of them authorises the others, by implication, to act on his behalf, and a release or discharge, therefore, of the claim, by one, is binding upon the others. Assuming that the principle of the English Common Law as to the operation of a release given by one of two or more joint promisees is not affected by the Indian Contract Act, and is the law here, as held in Barber Maran V/s. Ramana Goundan (1897) 20 Mad. 461 already cited it is clearly inapplicable to the case of co-heirs who are not joint promisees, but; the heirs of a single promisee, and it will be dangerous to extend and apply the English doctrine to a release given by one of such co-heirs In the case of co-heirs, among the Hindus, the Hindu Law, as a general rule, constitutes one of them, the senior in age, as the karta or manager of the inheritance on behalf of all the co-heirs."