KUNCHITHAPATHAM PILLAI; DORAISAML PILLAI Vs. PALAMALAI PILLAI

JUDGEMENT

(1.) The owner of the properties was one Murugappa Pillai. He mortgaged them to one Krishnachariar in 1895. In September 1897 he sold some of the properties comprised in the mortgage to one Kunjithapatham with a direction to pay Krishnachariar, the mortgagee, Rs. 1,200. A portion of this amount was paid, but a good portion remained unpaid. In October some other properties, also included in the mortgage, were sold to one Duraiswami, with a direction to pay Rs. 460 and odd to the mortgagee, the deed also containing a covenant to clear off prior mortgages. This was not paid. The remaining properties comprised in the mortgage were sold to Rajagopal and others and they were asked to pay the mortgagee Rs. 2,000 and odd. This sale-deed is not before us on appeal, but it is admitted that there is no assignment or specific covenant in favour of the purchaser on which he can rely for the purpose of this suit. The mortgagee sued Murugappa Pillai and the three alienees among others on the mortgage. Kunjithapatham and Duraiswami entered into a compromise with the plaintiff regarding the amounts payable by them. Rajagopal (we shall call the third party by this name, although there are others who have equal interest with him) was no party to this compromise. The decree in the suit was for Rs. 8,000 and odd, and it directed that out of the said amount Duraiswami should pay Rs. 500, Kunjithapatham Rs. 1,000, that in default their properties should be sold for the amounts specified, and that for the balance the other properties which were in the possession of Rajagopal and others should be sold. Rajagopal had to pay a considerable sum, as he was the largest purchaser. This suit is by his heirs for contribution. It was found by the District Munsif, and not disputed before us, that both Duraiswami and Kunjithapatham paid under the decree the portion of the debt which would have been chargeable on the properties purchased by them, if there were no directions to them to pay particular sums. The plaintiffs base their suit on the allegation that as both Duraiswami and Kunjithapatham undertook to discharge a specific portion of the mortgage-debt, and as their failure to pay the amount within the time mentioned by the mortgagor increased the amount due to the mortgagee, their liability should not be calculated upon the value of the properties purchased by them, but upon the quantum of the liability undertaken by them at the direction of the mortgagor. The District Munsif dismissed the suit. On appeal, the District Judge, relying on Sections 69 and 70 of the Indian Contract Act, decreed the claim. Duraiswami and Kunjithapatham have preferred separate appeals to this Court.

(2.) The question has been argued with great ability before us, and the arguments covered a very wide ground of the law of mortgages. We think the solution has to be found in the Transfer of Property Act and not in the English cases quoted at the Bar.

(3.) The liability to rateable contribution of properties mortgaged in the first instance and sold subsequently in lots to different persons is imposed by the Transfer of Property Act. The legislation may have been based on equitable grounds; but its limits are prescribed by the Statute. In the second clause of Section 82, the liability is defined in a particular way, "in the absence of a contract to the contrary." Now, "this contract to the contrary" can only be between the parties who are liable to contribute. That is the plain meaning of the section. See also observations in Ramabhadrachar v. Srinivasa Ayyarsgar 24 M. 85. Mr. Venkatarama Sastriar in his very able argument referred us to certain English decisions to the effect that a contract as between the mortgagor and the purchaser of a portion of the property is within the meaning of the expression contract to the contrary." We are unable to accept this contention. We shall have a word to say about the English authorities later on; but before doing so, we shall deal with the section of the Act.