LAL RAM SARUP Vs. KUNJI LAL

JUDGEMENT

(1.) This is a plaintiff's appeal arising out of a suit for recovery of money on a hypothecation bond dated 15 August 1927. The bond was a mortgage-deed in favour of no less than six mortgagees. The plaintiff who is one of the mortgagees brought a suit and originally did not even implead his co-mortgagees, abandoned his security and wanted to obtain a decree for what he considered to be his share of the mortgage debt. On some objection being taken as to the indivisibility of the mortgage transaction, he impleaded the other mortgagees without in any way amending his relief. The suit was brought within six years of the registered document, but that period is now well over. Both the Courts below have dismissed the claim, holding that the plaintiff is not entitled to split up the single mortgage trasaction.

(2.) In appeal it is argued before us that It is open to the plaintiff to recover Ms share of the debt particularly when the other co-mortgagees did not come forward to oppose his claim. It seems to us that the case has to be looked at, not only from the point of view of the plaintiff-appellants, but also from the standpoint of the defendant mortgagors. They entered into one single transaction with a group of people to whom monies were due previously and with whom they contracted that the amount would be payable in one lump sum to them jointly and they jointly would have the right to recover the amount and would get the mortgaged property sold. If each one of them be allowed to bring a suit separately for his share of the mortgage debt the result would be that the mortgagor would be compelled to resist six separate suits and would be put to considerable inconvenience and harassment and such a view would encourage multiplicity of suits involving waste of time of the Courts as well.

(3.) As regards a suit brought by one of several mortgagees to recover his share of the mortgage debt, the point is well settled in view of the pronouncement of their Lordships of the Privy Council in Sunitabala Debi V/s. Dhara Sundari Debi 1919 P.C. 24. The only proper course is for the co-mortgagee to implead the other mortgagees as defendants and sue for a decree for the entire amount or the sale of the entire mortgaged property. He cannot get a decree for his share of the mortgage debt or a sale of a part of the mortgaged property. It seems to us that the same principle applies even where one of the mortgagees chooses to abandon the security. His abandonment would not bind the other co-mortgagees who are jointly interested in the whole amount, nor does it seem fair that one mortgagee should steal a march over the other co-mortgagees to recover his share of the mortgage debt, either by attaching the mortgaged property later on or by attaching other property of the mortgagor and leave his co-mortgagees in the lurch. Section 45, Contract Act, clearly lays down that when a person has made a promise to two or more persons jointly then, unless a contrary intention appears from the contract, the right to claim performance rests, as between him and them, with them during their joint lives.