Decided on May 03,1900



- (1.) The material facts and dates are as follows: In 1883 one Srinivasa Ayyangar mortgaged certain lands which belonged to him and his three sons to one Rangayya Goundan for. Rs. 20,000. The mortgaged property may be conveniently described as items Nos. 1-4. Subsequently to the mortgage there was a partition between Srinivasa Ayyangar, and his three song. Under the partition the father and the three sons each took a one-fourth share, and each became liable for one-fourth of the mortgage-debt. On August 9th, 1886, one of the sons, Krishna Ayyangar, Bold the greater portion of his share in the mortgaged property to the plaintiff. The sale-deeds are exhibits A, B and C. These deeds state that the lands are sold free from incumbrances. The total purchase price was Rs. 10,500. Nine days after the sale on August 18th, 1886, Krishna Ayyangar gave an indemnity bond (exhibit I) to the plaintiff, This bond, after reciting the mortgage to Rangayya Goundan and stating that Rs. 5,000 is due in respect of Krishna Ayyangar's share thereof, authorises the plaintiff, in the event of Krishna Ayyangar's failing to discharge the share of the mortgage-debt for which the lands sold to the plaintiff were liable, to recover this Rs. 5,000 from certain other specified lands belonging to Krishna Ayyangar. The amount for which Krishna Ayyangar became liable under this bond was paid to the plaintiff.
(2.) In 1894, Rangayya Goundan brought a suit on his mortgage against Srinivasa Ayyangar and twenty-five others. Srinivasa Ayyangar and his three sons were defendants Nos. 1-4. The plaintiff in the present suit was the seventh defendant. Rangayya Goundan obtained a decree for Rs. 26,000. In execution of the decree, item No. 1 was sold and realized Rs. 30,000, and the decree was satisfied.
(3.) In January 1897 the plaintiff brought the present suit under Section 82 of the Transfer of Property Act claiming rateable contribution from the other properties mortgaged to secure the debt. The District Judge held that the suit must fail on the ground that, the plaintiff by receiving the amount secured by the bond (exhibit I) from Krishna Ayyangar, the latter became the person entitled to sue for contribution and the plaintiff lost his right to sue, In our opinion this is not the legal effect of the transactions between Krishna Ayyangar and the plaintiff. Krishna Ayyangar purported to convey the lands free from incumbrances. He had, in fact, nothing more to convey than an equity of redemption. The moneys received by the plaintiff under the bond (exhibit I) represent the difference between the value of the lands if they had been conveyed, free from incumbrance and their value subject to the existing incumbrance. The result of the transactions was that Krishna Ayyangar merely conveyed an equity of redemption at an agreed price. The plaintiff's right to rateable contribution was in no way affected by the indemnity bond or the payment be him thereunder.;

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