KARUPPAN AMBALAGARAM (DIED) Vs. MAHAMMAD SAKUTH LEVVAI

JUDGEMENT

(1.) The vakil for the appellants has not attempted to support the sale deed, Exhibit A, before us; but has confined himself to arguing that the Subordinate Judge was wrong in refusing to allow his client a charge on the property to the extent of the money paid by him in satisfaction of the decree in O.S. No. 56 of 1906 which was brought on a mortgage executed by the owner of land, (the appellant s brother) in favour of one Raman Ambalagaram prior to Exhibit A.

(2.) The Subordinate Judge rejected this claim on two grounds: (1) that the prayer for a charge is not maintainable in this suit brought primarily to enforce the sale under Exhibit A; (2) that the plaintiff being a mere "volunteer" cannot claim to be subrogated.

(3.) As regards the first, the Subordinate Judge depends on Kuttichettiar v. Subramania Chettiar (1909) I.L.R. 32 M. 485. In the present case the plaintiff has in his plaint sued in the alternative for a declaration of his charge, and has taken an issue on it in the original court, while no objection was raised on the ground of misjoinder of causes of action. In such circumstances the ruling quoted appears inapplicable.