VEERABHADRA PILLAI Vs. (KADAMBI) RAMUNAJA AIYANGAR

JUDGEMENT

(1.) The facts necessary for deciding this second appeal are briefly these: One Seetharama Aiyangar and his nephew owned a village called Rangapanditha Agraharam. They sold it to defendants 2 and 3 and one Veeraraghavachari in 1907 for Rs. 3,500 and on the same day got from the vendees a mortgage deed for the amount. Under this document (Ex. 3) the price had to be paid in instalments extending over 8 years. There was a forfeiture clause that, if payments were not made on the due dates, the sums already paid should be forfeited and the vendors might take possession of the village. The payments not having been made regularly, the vendors instituted a suit for cancellation of the sale. Meanwhile, the three vendees had sold half of the village to defendant 1 on the 15 August 1908 for Rs 1,750 (see Ex. 6) for discharging the mortgage-debt under Ex. 3. He was, therefore, added as a party to the suit. He also obtained from defendants 2 and 3 a usufructuary mortgage in respect of their remaining two-sixths share of the village for Rs. 900 (see Ex. 10). In the suit instituted by Seetharama Ayyangar (O. S. No. 11 of 1911) a decree was given for the recovery of the purchase money from the original vendees. The defendant 1 who had become the owner of the half share and also mortgagee of two-sixths share of the village, deposited Rs. 2,062-0-0, in Court and remitted Rs. 1,866 to the District Judge in payment of the decree amount, as otherwise the property would have been sold in execution of the decree. It may here be observed that the former amount, viz., Rs. 2,062-9 was made up of Rs. 1,750 which had to be paid to discharge the debt due to Seetharama Ayyangar (see Ex. 6) plus interest till that date. Afterwards, the two-sixths shares originally mortgaged to defendant 1 were sold to the plaintiff by two sale-deeds. The suit out of which this second appeal arises was instituted by the plaintiffs for the redemption of two-sixths share of the village, in other words, of the mortgage of his share executed by defendants 2 and 3 in favour of defendant 1. Defendant 1 contended that he was in law entitled to more than Rs. 900 mentioned in the document Ex. 10, as he as mortgagee in possession had paid the entire decree amount in O. S. No. 11 of 1911, and thus saved the property from sale.

(2.) Both the Courts held that, so far as the sum of Rs. 2,062-9 was concerned, defendant 1 can claim no credit as that amount had to be paid as the value of the half share which he had purchased under Ex. 6. As regards the other sum the District Munsif held that, since defendant 1 the mortgagee saved the property from sale by making that payment, under Secs.72 and 82, Transfer of Property Act, he is entitled to get towards the payment of that amount rateable contribution from the plaintiff who represents defendants 2 and 3. He held that the half share of defendant 1, the one-sixth share of Veeraraghavachari and the two-sixths shares of defendants 2 and 3 are liable to contribute rateably to the mortgage-debt due to Seetharama Ayyangar, i. e., to the decree debt in O. S. No. 11 of 1911. In this view he came to the conclusion that the plaintiff who has purchased the equity of redemption from defendants 2 and 3 of the two-sixths share should pay for redeeming the property in addition to Rs. 900, the sum mentioned in the document, one-third of Rs. 1,866, the sum paid by defendant 1 towards the decree debt in O. S. No. 11 of 1911. Defendant 1 preferred an appeal against this decree stating that he was entitled to get more from the plaintiff by way of rateable contribution. The Subordinate Judge held that he was entitled to get not one-third, but two-thirds of the amount paid by him, but he held that the amount paid by him was not Rs. 1,866, but only Rs. 1,662-8. Against this decree of the Subordinate Judge the plaintiff has preferred a second appeal and defendant 1, a memorandum of objections.

(3.) In the second appeal two points are argued by the appellant's learned vakil; (1) that the lower Court ought to have held that the plaintiff is not bound to pay any sums other than what is mentioned in the document as the mortgage amount; and (2) in any event, he should not be called upon to pay more than one-third of the amount found to have been paid by defendant 1 to save the property from sale.