SESHAGIRI AIYAR Vs. VYTHILINGA PILLAI

JUDGEMENT

(1.) Of the whole property mortgaged in 1889 to Subapathy for Rs. 1,300 three parcels were sold by the mortgagors on the 16 of April 1892, one parcel to the 3 defendant's father for Rs. 1,000, one to the 4 defendant for Rs. 200 and one to the plaintiff for Rs. 500. The plaintiff paid cash for his purchase, but the other purchasers each undertook to pay the price to the mortgagee towards the mortgage. Subsequently Sabapathy's assignee brought to sale the property purchased by the plaintiff. And the plaintiff, to save it, paid up part of what was due on the mortgage. He now seeks contributions from the present owners of the other two parcels and the first question for our determination is as to the correct method of calculating the contribution.

(2.) The plaintiff claims that the 3 and the 4 defendants being bound to pay Rs. 1,200 towards the mortgage must be held liable for that amount, and the rateable distribution over all the property should be made only for the balance. Section 40 of the Transfer of Property Act, was relied on by Mr. Srinivasa Aiyangar on the plaintiff's behalf; but as we understand that section, it could apply to this case, only if there were found to be a contract between the plaintiff and his vendors that the land sold to other purchasers should be liable for Rs. 1,200 of the mortgage money and it is not found that there was such a contract.

(3.) Mr. Srinivasa Aiyangar placed his chief reliance on an equitable rule profounded as follows in Jones on Mortgages (6 Edition), Section 743: A purchaser of a portion of the estate subject to a mortgage has no equity to have his land relieved of the burden of the mortgage as against a subsequent purchaser when it was a part of his contract of purchase that he should pay the purchase money directly in satisfaction of the mortgage. On the contrary the subsequent purchaser has no equitable right to have the purchase money so applied in exoneration of his own land.