A.M.P.R. Muthuraman Chetty by agent Subramania Aiyar and Others vs Sivasubramania Chetty and Others

Krishnan Pandalai, J.—The question is whether the suit brought by the petitioners (plaintiffs) embraces two or more distinct subjects within

the meaning of Section 17 of the Court Fees Act so as to require them to pay Court-fees separately on each of the said subjects.

The suit is on a mortgage in favour of the nine plaintiffs for a total sum of Rs. 38,376-4-8 and interest thereon mortgaging all the properties of

the defendants who had been traders and in the course of trade became indebted to the nine plaintiffs in different sums which together made up the

total mortgage principal. In one sense, i.e., before the mortgage, it is quite true that the plaintiffs had only separate claims against their debtor. That

is the sense in which the Lower Court''s opinion that the claim of each of the plaintiffs in the mortgage amount is a separate subject is right. But that

by no means concludes the question whether the creditors having taken for their common protection a mortgage for the entire sum due to them,

there does not thereby a new and independent cause of action common to them all no doubt springing from their former and separate claims but

distinct from it to enforce the mortgage as a whole for their common benefit and share rateably in the proceeds. That that was the intention is clear

from the facts. The Lower Court has ignored the aspect of the matter that whatever the rights of the creditors before the mortgage, they have

individually under the mortgage no priority against each other, and are not entitled to claim the whole of their dues from the proceeds of the security

but must share them rateably according to the sums due to each as set out in the deed. There is nothing in the deed expressly enabling each of the

nine plaintiffs to sue for his own dues under the mortgage or the mortgagors to redeem the security in parts by paying each of the plaintiffs

separately. The suit is for the entire amount against the whole property. The case is analogous to a suit by trustees or the holders of debentures of a

series, secured by a mortgage in which case the suit to enforce the security must be brought on behalf of all and the Court will not give judgment in

favour of one such holder as by so doing he will be put in a better position than the others, f Simonson on Debentures, 4th Edition, pp. 349 and

350 citing In re Uruguay Central and Hygneritas Railway Company of Monte Viedo (1879) 11 Ch. D. 372 and Hope v. Croydon and Norwood

Tramways Company (1887) 34 Ch. D. 730

The case cited by the learned Judge in Seth Bansiram Jashamal through his authorised Agent and Managing Partner, Lilaram Vs. Gunnia Naga

Aiyar and Others, is not in point. That was a case where one of several mortgagees to whom separate amounts were due as tenants-in-common

sued for the amount due to himself and the question was whether he could maintain a suit for part of a mortgage money or must sue for the whole.

It was held relying on 24 CWN 297 (Privy Council) that Section 67 of the Transfer of Property Act is not a bar to such a suit and it followed that

the plaintiff could not be asked to pay Court-fees on the amount due to the other mortgagees for which be did not sue. That decision does not

touch the question whether in a suit brought for the entire amount due on a mortgage by persons who though as between themselves entitled to

portions of that amount have a common interest in the whole Court-fees should be paid on the whole sum as one claim or on the several portions

as separate claims. In such a case it seems to me incorrect to say that because separate suits by each sharer may be possible, when a suit for the

whole amount due on a mortgage is brought by all mortgagees together the suit embraces not one subject but as many different subjects as there

are persons entitled to the proceeds of the mortgage. If such were the case a suit on a mortgage taken by the heirs of a deceased Mahomedan for

a debt due to him, on the proceeds of which they are ex hypo the is entitled to distinct shares, would be one embracing not one subject but distinct

subjects. This would in my opinion be straining the language of the section in view of the decisions referred to by the learned Judge which show

that even where a plaintiff could have brought different suits, e.g., for the price of goods sold on different dates, a suit for the price of a series of

sales is one subject for the purpose of Court-fees. See also Parameswara Pattar, In re I.L.R.(1930) 54 M. 1 : 59 M.L.J. 469 and the decision in

The Rajah of Vizianagram Vs. The Government of Kerala, .

The order of the learned Judge is set aside. The costs of this petition will be costs in the cause and will be provided for in the decree.