THUVOOR VENKATASUBBA REDDY Vs. BAGIAMMAL

JUDGEMENT

(1.) In this case the separate properties of two owners were mortgaged to secure a single debt of Rs. 1,800. One of the mortgagors, Arunachala Mudali, paid up Rs. 1,631-14-0 and the mortgagee sought in this suit to recover the whole of the balance from mortgaged properties in the possession of the other mortgagor. The lower Courts refused to allow the plaintiff to recover more than what the property he proceeded against was rateably liable for.

(2.) The questions for our decision are, (1) whether there was in law an extinguishment of the mortgagee s lien over Arunachala Mudali s property, so as to preclude the plaintiff from recovering the whole of the balance due under the mortgage in this suit and the defendant from obtaining a Contribution from Arunachala Mudali in a separate suit in proportion to the value his property bears to the whole debt secured by the mortgage, after deducting the amount already paid to the mortgagee; 11 C. 258 whether assuming that it was understood by the parties that plaintiff released his right to proceed against Arunachala Mudali s property, this will prevent him from recovering the whole debt from the defendant. The statement in paragraph 6 of the plaint that Arunachala Mudali cleared off a portion of the interest and principal due upon the mortgage and that accordingly his properties have been excluded from the suit as arranged, does not in my opinion amount to an extinguishment of the mortgage lien over Arunachala Mudali s property.

(3.) No doubt there are words in Exhibit B showing that plaintiff at one time had an idea of relinquishing his lien over Arunachala Mudali s property, but as it was not a completed transaction and the document contains an admittedly false recital as to the payment of Rs. 1,621 in cash, it cannot affect the equities existing between the parties. Exhibit B, therefore, doe? not help the defendant as containing an admission of plaintiff that he had given up Arunachala Mudali s property. I consider the alleged extinguishment no proved, but as this is partly a question of fao upon which one of the lower Courts be pronounced in defendant s favour, I proceed to the second question.