VISWANATHA AIYAR Vs. VENGAMA NAIDU

JUDGEMENT

(1.) The plaintiff alleges that in pursuance of a mortgage-decree his properties were sold; that a certain amount was realised and credited towards the decree; that the first defendant was the owner of some of the other properties also included in the mortgage, and that the amount paid in towards the mortgage by the 1 defendant was less than what he would be made liable to pay having regard to the value of those items. The plaintiff, therefore, claims in the present suit contribution from the 1 defend, ant, being the difference between the amount rateably due in respect of the latter properties and the amount actually paid by him.

(2.) The plaintiff's right to maintain the suit is questioned, and to deal with this objection it is necessary to set forth a few facts.

(3.) One Krishnaswamy Aiyar had two song, Seshasayi and Lakshmikantham, and they formed members of a joint Hindu family. On the 11 of September 1890, they mortgaged the properties described in Schedules A to F of the plaint to certain persons for a sum of Rs. 17,000 (Ex. K). On 15 December 1894 the amount due on the mortgage was Rs. 21,000 and Krishnasamy having died, his sons sold F Schedule properties to one Sundaracharlu for a sum of Rs. 12,500 (Eix. I.) and mortgaged the properties in Schedules A to E to the same person for Rs. 8,500 (Ex. II). Sundaracharlu was directed to pay the two sums of Rs. 112,500 and As. 8,500, which made a total of As. 21,000, in discharge of the original mortgage (Ex. K). On the 8 May 1899, there was a partition between Seshasayi and Lakshmikantham. The properties described in Schedules A and E fell to the share of Seshasayi and those in Schedules B, C and D to the share of Lakshmikantham. On 6 November 1899, Seshasayi sold to the 1 defendant the properties in Schedules A and E (Ex. B). On the 15 September 1902, Sundaracharlu executed a reconveyance in respect of the properties in Schedule F in favour of Seshasayi (Ex. IV). On the 11 October 1902 Seshasayi sold the properties in Schedule F to the plaintiff (Ex. A). On the 1 July 1905, the properties in Schedule E were conveyed by the 1 defendant in favour of the 12 defendant. On the 2nd September, 1909, the plaintiff sold back the properties in F Schedule to Seshasayi (Ex. A. 2). On the 13th September 1909 a suit was instituted on the footing of the original mortgage, Ex. K., which will be referred to as 49 of 1909. On the 20 September Seshasayi sold the F Schedule properties to one Pichandi who is said to be a servant of the plaintiff, and on the 27th September 1909, Pichandi in turn sold the said properties to one Vencatachalapathy Naidu. In 1913 the final decree was passed in the mortgage suit 49 of 1909 and on the 9 February 1917 the properties described in B, C and D Schedules were sold by the representatives in interest of Lakshmikantham to the 1 defendant.