NARAYANAN CHETTI Vs. NALLAMMAL

JUDGEMENT

(1.) This second appeal has been placed before a Full Bench for decision, as King, J., before whom the appeal came in the first instance, considered that the judgment of this. Court in Sesha Aiyar V/s. Krishna Aiyangar . , on which the Courts below had relied required reconsideration. In order to appreciate the application of Sesha Aiyar V/s. Krishna Aiyangar . , it is necessary to state the facts in the present case.

(2.) On the 28 June, 1927, one Swaminatha Aiyar mortgaged immovable property to the grandfather of the plaintiffs to secure the sum of Rs. 3,000. On the 14 December, 1928, the mortgagor conveyed to his daughter the eastern portion of the property. She took it, of course, subject to the mortgage of the 28 June, 1927. On the 4 November, 1929, the mortgagor borrowed Rs. 700 from the plaintiffs grandfather on the security of a second mortgage of the western portion. On the 24 April, 1934, the 2nd defendant bought the western portion in a Court auction, subject to the two mortgages which Swaminatha Aiyar had created. On the 30 May, 1934, Swaminatha Aiyar's daughter conveyed her interest in the eastern portion to the 1 defendant. On the 6 September, 1934, the plaintiffs father, the grandfather being dead, assigned the mortgage of the 28 June, 1927, to one Chidambaram Chettiar, who filed O.S. No. 227 of 1934 in the Court of the Subordinate Judge of Devakottai to enforce payment. On the 2nd April, 1935, a preliminary decree was passed in favour of Chidambaram Chettiar and a final decree followed on the 19 September, 1935. On the 27th October, 1935, the plaintiffs and their father separated and the second mortgage which Swaminatha Aiyar had created on the western portion of the property in suit fell to the plaintiffs share of the family properties. On the 24 August, 1936, in execution of the mortgage decree obtained by Chidambaram Chettiar, the western portion was sold for Rs. 8,883-6-0 and bought by the 1 defendant. The price realized was sufficient to discharge the first mortgage, but only Rs. 155-13-2 remained and this was not sufficient to discharge the second mortgage. On the date on which the preliminary mortgage decree was passed in favour of Chidambaram Chettiar there was due on the second mortgage the sum of Rs. 1,294- 8-0. On the 26 March, 1938, the present suit was filed to recover Rs. 1,600 from the 1st defendant as the owner of the eastern portion. The plaintiffs case was that as the first mortgagee had not brought the whole of his security to sale she was liable under Section 82 of the Transfer of Property Act to make contribution.

(3.) Section 82 of the Transfer of Property Act was amended in 1929. Before the amendment the first paragraph of the section read as follows: Where several properties, whether of one or several owners, are mortgaged to secure one debt, such properties are, in the absence of a contract to the contrary, liable to contribute rateably to the debt secured by the mortgage, after deducting from the value of each property the amount of any, other incumbrance to which it is subject at the date of the mortgage. This paragraph now reads as follows: Where property subject to a mortgage belongs to two or more persons having distinct and separate rights of ownership therein, the different shares in or parts of such property owned by such persons are, in the absence of a contract to the contrary, liable to contribute rateably to the debt secured by the mortgage, and, for the purpose of determining the rate at which each such share or part shall contribute, the value thereof shall be deemed to be its value at the date of the mortgage after deduction of the amount of any other mortgage or charge to which it may have been subject on that date. In deciding Sesha Aiyar V/s. Krishna Aiyangar , the Court was concerned with Section 82 as it stood before the amendment, but the amendment makes no material change so far as this case is concerned : Now the section expressly refers to a case where the mortgaged property is subsequently divided into shares held separately and not merely to a case where several properties are mortgaged, and it is placed beyond question that the valuation for purposes of contribution shall be that at the date of the mortgage. Both before the amendment and now the liability to contribute is a liability which is imposed upon the land and therefore is not a personal liability.