ARUNAGIRI MUDALIAR Vs. KUPPUSAMI PILLAI

JUDGEMENT

(1.) It is clear in my opinion that when the plaintiff purchased the cultivable lands by his sale- deed, Exhibit F, on 9th May 1901, he took them subject to all the incidental liabilities which attached to them by reason of their having been previously mortgaged under the simple mortgage (Exhibit A) of 3rd February 1900 along with the house and house site of defendants No. 1 and 2. In fact the sale-deed expressly stated that the debt secured by the simple mortgage was to stand, thus bringing the case within the first exception to Section 101 of the Transfer of Property Act. I am unable to read into these words an implied meaning that they referred to the simple mortgage standing not on the lands described in the sale deed, but on other property not therein specified. If the parties intended to convey a different meaning by the words used by them, then I can only say that they did not express their meaning properly. There are no words in the document stating expressly or by implication that the sale was free of encumbrances. In other words, the plaintiff took whatever rights over the cultivable lands the mortgagors had to sell, viz., the equity of redemption, while the mortgagors retained all the rights they hitherto possessed in the house and house site. Again, when on 22nd December 1908, the 5th defendant purchased from defendants Nos. 1 and 2 the house and house site, he succeeded to all the rights and benefits which the mortgagors then possessed in that property. Among such rights was the right conferred by Section 82 of the Transfer of Property Act of making the lands mortgaged along with the house and site contribute rateably to the debt secured by the simple mortgage of 3rd February 1900.

(2.) It is argued, first, that by providing in the sale-deed (Exhibit F) for the discharge of the principal of his own usufructuary mortgage of 1st October 1896, the plaintiff impliedly cast all the burden to which the property was then subject on the house and site: and fseconrily, that the 5th defendant s undertaking to discharge plaintiff s simple mortgage when he took a private conveyance of the house and site was equivalent to a renunciation of his right to make the other lands bear any portion of the debt.

(3.) But the usufructuary mortgage does not really affect the question, as it had been cleared off before the 5th defendant purchased the house and site and thus plaintiff s liability to contribute out of the value of the lands purchased by him to the discharge of his own simple mortgage arose, not by reason of his position as usufructuary mortgagee of the lands but by his purchase of the mortgagors equity of redemption.