THOPPAI M MUTHIAH BHAGAVATHAR Vs. TVVENKATARAMA AYYAR

JUDGEMENT

(1.) This Second Appeal originally came on before our brother Jackson, J. After hearing the appeal, he called for a finding. After the finding was returned, he directed the case to be posted before a Bench. Accordingly it comes before us for disposal.

(2.) The main facts are not now in dispute. On the 27 January, 1910 the suit properties of which items 1 to 3 belonged to defendants 1 to 5 and item 4 belonged to one Sundararaja Bhagavathar were mortgaged for Rs. 2,500. Of this sum, Sundararaja took Rs. 816-7-0 and the defendants drew the rest, viz., Rs, 1,683-9-0. On the 19 May, 1910 the defendants and Sundararaja each paid Rs. 500 towards the mortgage. On the 7 August, 1910 there was another mortgage of the same properties by the same mortgagors in favour of the same mortgagee for Rs. 600. This amount was taken by the mortgagors in equal halves. The first defendant paid Rs. 588 on the 14 September, 1912 and Rs. 100 on the 21 September, 1912 towards the mortgages. The mortgagee filed a suit (O.S. No. 119 of 1916) on the two mortgages and obtained a decree. Item 3 consisted of an othi right in favour of the mortgagors. The original owners of the property chose to redeem that othi. The amount due on the othi at that time was Rs. 680 and this was paid on the 9 June, 1917 and the third item was redeemed. This payment must also be regarded as a payment by the defendants in partial discharge of their debt due to the mortgagee. In execution of the mortgagee's decree, item 4 was first brought to sale on the 28 April, 1919 and fetched Rs. 1,270. This amount goes in reduction of Sundararaja's share of the debt because item 4 belonged to him. Here it may be mentioned that item 4 had been sold by Sundararaja to the second plaintiff by a sale deed Ex. A, dated the 24 April, 1916 and the second plaintiff deposited a sum of Rs. 1,372- 9-0 for setting aside the sale of item 4 and got it cancelled. On the 1 August, 1919, item 1 was sold for Rs. 2,035 and the mortgage debt was completely discharged. Afterwards the second plaintiff sold item 4 to the first plaintiff. On the ground that, taking the value of the various items mortgaged, item 4 is liable to contribute much less than the amount actually realised from Sundararaja, the present suit was filed to recover a sum of Rs. 548-5-6 made up of Rs. 423-5-4 the excess of the proportionate share for which item 4 should be liable and interest at one per cent, per mensem from the date of the deposit. The District Munsif gave a decree for Rs. 482-10-5. In estimating the value of the various items of properties, he fixed 9 June, 1917 as the date on which the valuation should be made for fixing the amount of contribution. There was an appeal by the defendants but it was dismissed by the Principal Subordinate Judge of Madura. Hence this Second Appeal.

(3.) When the case originally came on before our brother Jackson, J., he held that the date of the mortgage should be regarded as the date for fixing the proportions to which the various items are liable. As there was then some dispute as to which of the defendants made the payments already mentioned, the learned Judge called for a finding on this matter. He also called for a finding on another issue which runs thus "Whether the whole mortgage amount should be debited to defendants 1 to 5 as they are the only persons who benefited under the contract". On the first issue so remitted a finding has been submitted, the effect of which has already been stated by me. On the second issue the District Munsif found that it is not true to say that Defendants 1 to 5 took the whole benefit of the mortgage money. It must then have been suggested before him by the plaintiffs that there was an agreement between the defendants and Sundararaja on the 12 April, 1912 according to which the defendants undertook to pay the whole debt remaining due under the mortgage bonds, and an agreement Ex. H was produced. At the first trial before the District Munsif when the plaintiffs vakil attempted to adduce evidence on this matter, it was objected that such a case was not raised in the pleadings and at the original trial further evidence relating to this matter was excluded. But when the finding was called for, the plaintiffs seem to have again relied on Ex. H, and evidence was taken. The defendants case in reply to Ex. H was that originally there was an arrangement according to which the parties were jointly trading in rubies and the whole balance of the stock-in-trade was to be taken by the defendants and also Sundararaja was to pay them Rs. 400 and in consideration of this the defendants undertook to pay the remaining debt due on the mortgages. But Sundararaja never performed his part of the contract i.e., he never paid any amount and the stock-in-trade was not taken by the defendants. These facts are now found by the District Munsif as pleaded by the defendants. The District Munsif practically found that Ex. H was never acted upon. Apparently this is the reason why Ex. H was not referred to or relied on in the plaint. The plaint proceeded solely on the ground that, with reference to the value of the various items, item 4 was liable only to a particular amount whereas more was realised from the owner of that item. It may be observed that the question relating to Ex. H does not strictly fall within the second issue as drafted by our learned brother Jackson, J. When the finding was returned, Jackson, J. observed that the facts were clear but that the law presented some difficulty. The appellants relied upon Muthurakku Maniagaran v. Rakkappa (1913) 26 M.L.J. 66. The correctness of this decision was doubted in Kunchithapatham Pillai V/s. Palamalai Pillai (1916) 32 M.L.J. 347 relied on by the respondents. Referring to these two decisions the learned Judge referred the matter to a Bench.