B RAGHAVACHARI Vs. PELLETTI VENKATANARAYANA REDDI

JUDGEMENT

(1.) The defendants are the appellants. The facts of the case are-as-follows: The suit properties mentioned in Schedules A and B to the plaint belonged to one Ummer Beg Sahib. He mortgaged them to one Venkatarama Beddi on 2 January, 1900 and subsequently sold Schedule A properties to the father of the defendants. On 14 July 190? Schedule B properties were usufructuarily mortgaged by Ummar Beg Sahib to the-plaintiff. Venkatarama Reddi instituted a suit O.S. No. 190 of 1908 to enforce his mortgage impleading Ummar Beg Sahib, the father of defendants 1 to 3" the plaintiff herein, and some others and obtained a decree in execution of which he brought the properties to sale. The defendants objected to the order in which the properties were sought to be-sold and contended that Schedule A proper, ties which they purchased should be sold last. The Court did not grant their prayer, but ultimately the High Court in C.M.S.A. No. 11 of 1922, see Raghavachariar V/s. Krishna Reddi 1924 Mad 509 granted the defendants prayer and ordered that the Schedule B properties should be first sold in auction and that in case the decree amount was not. thereby satisfied the Schedule A properties. be then sold, on the ground that the-equities involved in the case were in favour of the defendants whose father had purchased the properties without notice of the mortgage while the plaintiff who was a relative of the owner knew all about it. The plaintiff to avert the sale of his properties paid the amount of the-mortgage decree and instituted the suit out of which this second appeal arises-against the defendants, the owners of Schedule A properties, for contribution in respect of the debt discharged by the plaintiff. The District Munsif dismissed the plaintiff's suit. In appeal his decision was set aside.

(2.) In this second appeal three grounds. have been raised by the learned Counsel on behalf of the appellants: (1) the plaintiff being a mortgagee cannot claim contribution under Section 82, T.P. Act: (2) the plaintiff's right to contribution if he-has any is barred by the decision of the High Court in Order M.S.A. No. 11 of 1922; (3) the plaintiff claiming the right through the mortgagor cannot have a higher right than himself, he having sold the properties to the defendant s. father free from encumbrance. Of these grounds 2 and 3 do not seem to have been raised in the lower Court. I will now deal with these grounds separately. Section 82, T.P. Act, which embodies the rule relating to contribution is as follows: Where several properties, whether of one or several owners, are mortgaged to secure one debt sueh properties are, in the absence of a contract to the contrary, liable to contribute rateably to the debt secured by the mortgage, after deducting from the value of each property the amount of any other encumbrance to which it is subject at the date of the mortgage.

(3.) It is argued that under this section it is only an owner of properties that can claim the benefit of contribution and that the plaintiff being only a mortgagee as distinguished from a full owner cannot claim that right. The words of the section do not support this contention, and no decision supporting it has been cited. On the other hand the cases cited by the respondents learned Counsel show that such aright can be claimed by the mortgagee. Gulam Hazarat v. Gobhardan Das (1911) 33 All 387 is a direct decision on the point, though there is no discussion of the question in the judgment as apparently the point was never disputed. The suit in that case was brought by a subsequent mortgagee claiming the right of contribution and he was allowed the benefit of that right. In Fakir Chand V/s. Aziz Ahamad 1932 PC 74 the Privy Council have recognized the right of an assignee from the mortgagee to claim contribution. It is said by the appellant's learned Counsel that in the light of the facts as mentioned in the judgment of the High Court in that case reported in Aziz Ahmed Khan v. Chhote Lal 1928 All 241 at p. 243 the suit was brought by a person claimiag the rights of the owner and not that of a mortgagee; but the judgment of the Privy Council does not support this statement. In Sesha Iyer V/s. Krishna Iyengar (1901) 24 Mad 96 the suit was by mortgagees for contribution. The-learned Judges say having regard to the-facts of the case that if the sale of the properties had not taken place and they had paid the money themselves they; $2would be entitled to claim contribution. They observed as follows: In the present case the plaintiffs, who certainly cannot be in a better position than they would be if they had simply bought part of the-mortgaged property, subsequently sold under Eangayya Goundan's decree had the opportunity, and they might, by paying off the. debt and saving the property from sale, have acquired a right of contribution secured by a lien on the; other property. They would then have stood in a position analogous to that of one of several mortgagors who has redeemed the whole property and claims to take advantage of Section 95 of the-Act. But the plaintiffs did nothing and therefore no right of contribution arose and the other property stood free from any lien.