ISHWARA SHETTY Vs. RAMAPPA SHETTY

JUDGEMENT

(1.) The first defendant is the appellant in this Court. The following facts are material:--One Venku Shetty was the mulgenidar of some immovable property. He mortgaged his interest in the same to Appanna Rai and Kantha Rai two brothers for Rs. 500, on a simple mortgage dated May 4, 1892. Venku Shetty sold his interest to one of the mortgagees Kantha Rai on December 2, 1910. Thus Kantha Rai having become himself the owner of the mortgagor's interest, his own half interest in the mortgage was satisfied by the purchase and he became liable to pay the other half Rs. 250, and interest thereon to the other mortgagee Appanna Rai. Immediately after the purchase, Kantha Rai granted a sub-mulgeni to the plaintiff and one Muthaya Manai on December 3, 1910. On January 4, 1912, Kantha Rai sold his interest to the 1 defendant-appellant. Manai's interest was subsequently acquired by the plaintiff who is, therefore, the only person entitled to the sub-mulgeni right. Soon after the creation of the sub-mulgeni, the other mortgagee Appanna Rai brought his suit for recovery of half the mortgage amount. To this suit, Order 8. No. 23 of 1912, Venku Shetty, the original mortgagor and Kantha Rai the purchaser from him and the 1 defendant the purchaser from Kantha Rai were impleaded but not the sub-mulgenidar, the plaintiff, and Manai. In execution the mortgaged property was brought to sale and the Court on the then plaintiff's application ordered the sale subject to the plaintiff's sub-mulgeni right which was not represented in the suit. But the present appellant objected and appealed to the District Court which ordered that the sale should take place free of the plaintiff's snb-mulgeni right. The result of this order, if carried out, was that the plaintiff's suh-mulgeni right would be sold in execution of the decree to which he was not a party and his interest in the property would be converted into a right to receive surplus sale proceeds, if any. He would no doubt have the right of proceeding by separate suit to redeem the mortgage ignoring the sale and the decree by which he was not bound. This would involve expense and trouble and risk of losing possession pending the proceedings. Therefore, when the property was advertised for sale the plaintiff paid the amount due under the mortgage decree, O.S. No. 23 of 1912, on January 24, 1923, and had the sale stopped. Then he brought this suit against the 1 defendant-appellant and defendants Nos. 2 to 4 the legal representatives of Kantha Rai, for recovery of the money. Both sets of defendants denied liability. The 1 defendant's plea wasthat he had become the purchaser from Kantha Rai under a deed, Ex. III, which expressly mentioned only Rs. 276-4-0, as payable on the mortgage. He contended that he was not liable to pay more and that as he had bought the mulgeni right subject to the plaintiff's suh-mulgeni, both he and the plaintiff were liable to contribute to, the mortgage. The 3 defendant's legal representatives contended that Kantha Rai was also not personally liable for the mortgage debt although he had taken the mortgaged property on sale after the mortgage and that Kantha Rai's assets are not liable. It was also contended for the defendants that plaintiff was not entitled to recover anything as he was a mere volunteer. The District Munsif upheld the contention that the plaintiff was a mere volunteer and that he was not entitled to recover anything as he did not satisfy the conditions of Section 69 of the Contract Act and although he worked out the figures which the plaintiff and the 1 defendant would have to contribute in case the plaintiff was entitled to contribution, he dismissed the suit on the ground that the plaintiff was a mere volunteer.

(2.) In appeal the learned Subordinate Judge of South Kanara held that the District Munsif had misunderstood the legal rights of the parties. After stating the facts he held that the plaintiff was not a volunteer because, though according to the learned Subordinate Judge, he was not entitled to redeem the mortgage as he was only a sub-lessee under the mulgenidar, still the plaintiff had a right to protect his suh-mulgeni right in the property which was endangered by the impending Court sale and the 1 defendant had in fact the benefit of the payment by the appellant and he thought that the conditions required by Secs.69 and 70 of the Contract Act were satisfied. Having so held against the theory of voluntary payment, the learned Subordinate Judge also rejected the theory of the plaintiff's right being only to contribution. He held that it was not a case of two separate properties subject to the same mortgage where the mortgage has been discharged by the sale of one of them, that the appellant is only a lessee and that he is entitled to recover the whole amount paid by him. He, therefore, reversed the decree of the first Court and gave the plaintiff a decree as prayed for against the appellant but dismissed the suit as against the respondents Nos. 2 to 4 the representatives of Kantha Rai.

(3.) In Second Appeal, the learned Advocate has not tried to upheld the defence based upon the alleged voluntary character of the payment. The arguments have been directed only to two points. The 1 defendant-appellant is not liable for the amount paid by the plaintiff as he was only a purchaser of the equity of redemption from Kantha Rai who himself was a purchaser from the mortgagor and entitled to half the mortgage amount. Secondly, even if the 1 defendant is liable he is only liable to pay to the extent of a relative value of his interest to the plaintiff's interest.