R RAGHAVACHARIAR Vs. MVKANDASWAMI CHETTIAR

JUDGEMENT

(1.) In order to appreciate the point of law involved in this Letters Patent Appeal the facts must be stated fully.

(2.) On the 27 November, 1925, defendants 1 to 6, members of a joint family, mortgaged certain immoveable properties to the plaintiff to secure a sum of Rs. 7,000. The properties covered by the mortgage comprised a rice godown in Madras and agricultural lands in a village in the Chingleput district. Under a separate deed executed on the same date other properties belonging to the family were mortgaged to the plaintiff to secure a sum of Rs. 11,000. We will refer to the mortgage for Rs. 7,000 as "mortgage A" and the mortgage for Rs. 11,000 as "mortgage B." On the 7 May, 1933, there was due under mortgage A the sum of Rs. 5,596- 4-0. On that date the mortgagors conveyed to the mortgagee the agricultural lands comprised in mortgage A for Rs, 7,000, which was satisfied to the extent of Rs. 6,446 by partial discharge of both the mortgages.

(3.) Before the 7 May, 1933, the eighth defendant had obtained a charge over the lands comprised in mortgage A. The charge was given to him by a decree which he obtained on the 25 July, 1932, and by virtue of it he was in the position of a puisne mortgagee. When he agreed to buy the lands covered by mortgage A for Rs. 7,000, the plaintiff was not aware of the eighth defendant's charge. In the deed of conveyance the mortgagors declared that the lands were not subject to any other charge and agreed that if a dispute arose they would indemnify the purchaser. It was stipulated that the mortgage A and mortgage B should be kept alive as security as well as a shield in case of dispute.