VIJAYABHUSHANAMMAL Vs. CNEVALAPPA MUDALIAR

JUDGEMENT

(1.) There are no merits in this Second Appeal. Some technical objections are raised but the only arguable objection is that Section 67(d) of the Transfer of Property Act prohibits a suit by one of several do-mortgagees who is interested in part only of the mortgage money from suing for sale of a corresponding portion of the mortgaged property, "unless the mortgagees have with the consent of the mortgagor severed their interests under the mortgage" and that the present suit is such a suit.

(2.) The rather unhappy wording of the section no doubt lends some colour to this contention; but we do not think that the legislature intended to on act that if the severance of the interests of the mortgagees has taken place in any other lawful mode legally binding on the mortgagor (as for instance by the decree of a Court of justice in a suit to which the mortgagor is a party and which has become binding on him, though he has not given his consent to the passing of the decree which has the legal effect of causing the severance) the mortgagor may still resist a suit for sale for recovery of a portion of the mortgage money on the basis of such severance. The legislature merely intended to protect the mortgagor from being harassed by a multiplicity of suits where the severance of the interests of the mortgagees has taken place without his consent. The decision of a Court of justice effecting such a severance if binding on the mortgagor must be at least as affective legally as the mortgagor s consent to the severance. In the present case, there was a decree in a suit brought by the plaintiff s co- mortgagee to which suit the mortgagor was a party and it was declared that there had been a severance of the mortgage binding on the mortgagor. That decree might be erroneous but it was not appealed against and has become final. The plaintiff s claim for recovery of his share of the mortgage money on the basis of such severance cannot therefore be resisted by the mortgagor.

(3.) This Second Appeal fails and is dismissed with costs. The connected Second Appeal No. 2118 of 1912 follows.