MUTHUSWAMY PILLAY Vs. MUTHUVEERAM PILLAY

JUDGEMENT

(1.) MR. Krishnaswamy Aiyar restricts his clients claim to relief to the fact that they are purchasers. He concedes that the ground that there was a wilful suppression of the first mortgage when the mortgage to his clients was executed will not give him a cause of action to sue for the present relief. The plaintiff purchased the property from one who bought it at a Court sale rin execution of a money, decree against the mortgagor. It was not the duty of the mortgagor to mention in the proclamation of salo that a previous mortgage was subsisting. The purchaser took the property subject to all the encumbrances then subsisting. Consequently he was not entitled to claim from the mortgagor the money paid by him to the first mortgagee. In Izzat-un-nisa Begam v. Kunwar Pertab Singh 3 Ind. Cas. 793 : 31 A. 583 : 10 C.L.J. 313 : 13 C.W.N. 1143 : 6 A.L.J. 817 : 11 Bom. L.R. 1220 : 6 M.L.T. 277 : 36 I.A. 203 the Judicial Committee of the Privy Council held that where a property was sold as being subject to previous encumbrances, and it was subsequently found that the encumbrances were unenforceable, the mortgagor was not entitled to claim from the purchaser the amount of the mortgages which the latter was absolved from discharging. The present case is the converse of that decision. The same principle governs both the cases, namely, that the purchaser takes the burden as well as the benefit, without liability to account to, or a right to claim compensation from, the mortgagor. In Alfatun v. Rao Karan Singh 7 N.W.P.H.C.R. 362 the principle underlying the applicability of Section 69 has not been discussed. We must hold that the Subordinate Judge is right in his view that the plaintiff has no right to claim the benefit of Section 69 of the Contract Act against the defendant.

(2.) THE petition is dismissed with costs.