C V RAMACHANDRA AYYAR Vs. NVSIVARAM AYYAR

JUDGEMENT

(1.) This is an appeal from the order of the Subordinate Judge of Madura, dated 15 April 1935 in an appeal from the decree of the District Munsif of Madura town dated 17 July 1933 in O.S. No. 270 of 1932, a suit for the recovery of the amount due to the plaintiff on a mortgage bond by sale of the mortgaged property. The mortgage was executed by defendants 1 and 2 who were carrying on trade in partnership. As the plaint recites defendants 1 and 2 incurred debts in the course of that trade and owed to various persons various amounts and as a result of an arrangement between the creditors and the debtors a mortgage, Ex. A, was executed by them on 26 November 1925 in favour of the creditors including the plaintiffs. The plaintiff alleges that his share of the mortgage money was fixed at Rs. 1,100. The total amount of the mortgage was Rs 19,950. Subsequently defendants 1 and 2 were adjudged insolvents and the Official Receiver was impleaded as defendant 11. Defendants 4, 6 and 8 to 10 are said to have assigned their mortgage rights under Ex. A to defendant 3 who is also a mortgagee. Defendant 5's right under the mortgage is said to have been purchased by defendant 3 in the name of defendant 12 and defendant 7's share is said to have been also got by defendant 3 in the name of defendant 13. The plaintiff contended that the arrangement between the creditors and the debtors was that each of the creditors was to be paid the amount due to him by the debtors.

(2.) He also pleaded that some time after the mortgage was executed, when he made a demand for payment of his share defendants 1 and 2 agreed to pay him his share separately. The main ground on which the suit was resisted by the contesting defendants was that the arrangement relied on by the plaintiff cannot be proved and that the suit being for recovery of only a portion of the mortgage money by one of several co-mortgagees was not sustainable. The District Munsif dismissed these contentions and passed a preliminary decree in the usual form for sale of the mortgaged property and directed that the amount realised by sale would be subject to further orders of the Court" to be obtained by an application by the plaintiff or defendant 3. On appeal by defendant 3 the Subordinate Judge came to the conclusion that the suit for a portion of the mortgage due to one of several co-mortgagees was not sustainable and that the agreements pleaded in the plaint, whereby it is said the mortgagors agreed to pay the plaintiff's share separately, could not be proved in view of Section 92, Evidence Act. He accordingly allowed the appeal and set aside the preliminary decree passed by the trial Court and remanded the suit to the trial Court with a direction that the plaint should be returned to the party for presentation to the proper Court after giving a chance to the plaintiff to amend his plaint. The present appeal is from that order.

(3.) The main point for determination in this appeal is whether the suit as framed is maintainable, namely suit by one of several co-mortgagees for his share of the mortgage money. No doubt in this suit the prayer is for the sale of the entire hypotheca and the other co-mortgagees have been impleaded as defendants. No objection can therefore be taken to the maintainability of the suit on the ground that the other co-mortgagees are not parties or on the ground that the prayer is for the sale of only a part of the mortgaged property. The objection is really based on the ground that there was no covenant in the deed for payment of separate amounts or fractions of the mortgage money to the co-mortgagees separately. The stipulation in Ex. A is for payment of the entire amount and in the operative part of the document it is not stated that any particular amount is to be paid to any particular co mortgagee. It is only in the account of particulars of money received that it gives the various amounts received from the various creditors separately making up the total mortgage money. This recital of details does not, in my opinion, show that there was an agreement by the mortgagors to pay the separate amounts due to the creditors separately. On the other hand, it is admitted by the plaintiff himself in his plaint and in his evidence that a joint mortgage was taken by all the creditors because it was considered essential by the creditors that there should be no difficulty about priority, or, as the plaintiff puts it in his evidence, it was to avoid disputes as to priority that a document was writen consolidatedly." It is also admitted by him that at the time the mortgage was executed the creditors were pressing the mortgagors and that all the creditors are included in the mortgage. No doubt the plaintiff says in his cross- examination that there was no talk about what should happen if the property proved insufficient for payment of the debts. In any case it is obvious, whether there was a talk about this matter or not, that the creditors were anxious that none of them should have priority over any other, and that it was on this account that a joint mortgage was taken, though otherwise there was no reason whatever for a joint mortgage in favour of so many independent creditors. The intention therefore of the parties was that the entire mortgage money should be recovered at one and the same time and should be shared between the various co-mortgagees according to their respective shares. Though the shares were indicated in the deed, the intention at the same time was very clear that the entire money was to be recovered at the same time before it was shared.