P. Sami Gurukkal vs Thirupathia Pillai and Another

Venkatasubba Rao, J.—The question argued in this appeal relates to the effect to be given to the decree in Original Suit No. 43 of 1911 on

the file of the Court of the Subordinate Judge of Tanjore in so far as the 14th defendant, the appellant before us, is concerned. The plaintiff in the

suit claimed under a deed of mortgage dated the 15th November 1907 executed by the first defendant''s father, Suryanarayana Pandarathar in his

favour in the following circumstances. One Sena Yena Nagappa Chetti obtained a mortgage-decree against the said Suryanarayana in Original Suit

No. 54 of 1903 on the file of the Sub-Court, Tanjore. When the decree-holder brought the mortgaged property, the village of Kovilur, to sale, it

was arranged that the judgment-debtor should deposit in Court a sum of Rs. 35,000 towards the said decree and he, for the purpose of raising

funds, disposed of the kudiwamm right in various plots iv the village and realised a sum of Rs. 20,000 and deposited the same in Court, and he

borrowed the balance of Rs. 15,000 from the plaintiff executing in his favour the mortgage-deed referred to above. The 14th defendant was the

alienee of the kudiwamm right of Items Nos. 123, 118 and 126 in the village of Kovilur. The right was conveyed by a deed bearing date the 13th

November 1907, that is, two days previous to the mortgage in favour of the plaintiff. The deed of mortgage recites the facts relating to the decree

of Nagappa Chetty, the realization of Rs. 20,000 by sale to tenants of the kudiwaram, right belonging to the Zemindar in several plots, and the

deposit of the said amount in Court. The deed further mentions that the balance of Rs. 15,000 was borrowed from the plaintiff on the security of

the village of Kovilur. In regard to the extent of the right conveyed to the mortgagee, the following passage in the document is very material:--""Not

only shall the sale of kudikaniaehi (occupancy rights) and the grant of permanent lease for the fixed assessment for melvaram already made by us

until now in Kovilur village which is mortgaged under this document in order to discharge the said Nagappa Chettiar''s debts be binding on you but

any sale of kudikaniaehi and the right of melvaram thirwa not less than those now fixed in the said village and the grant of permanent lease made by

us in future for payment of this mortgage amount shall be binding on you. ""The rights of the mortgagee are, therefore, expressly made subject to the

alienations of the kudiwaram right effected previous to the date of the mortgage, namely, 15th November 1907. The 14th defendant claims that

both under the general law as well as under the special terms of the mortgage-deed, his rights in virtue of the alienations in his favour are paramount

to the claim of the mortgagee in the suit. So far, the case presents no difficulty and the rights of the plaintiff would be undoubtedly subject to those

of the 14th defendant and the claim of the plaintiff to priority would be clearly untenable. But some complication is introduced by the manner in

which the pleadings were prepared and the trial was allowed to proceed.

Paragraph 4 of the plaint refers to the mortgage in favour of Sena Yena Nagappa Chettiar dated 7th May 1898, the decree obtained by him in

Original Suit No. 54 of 1903 and the bringing to sale of the village of Kovilur in execution of the decree.

Paragraph 5 states that the first defendant''s father applied to the plaintiff for a loan of Rs. 15,000 for payment to the decree-holder in Original

Suit No. 54 of 1903 and that the plaintiff paid the amount into Court on 4th November 1907 on the understanding that a mortgage should be

executed in his favour in respect of the village of Kovilur.

Paragraph 6 refers to the execution of the deed of mortgage and paragraph 7 contains the usual statement that, in spite of demands, no amount

was re-paid towards the debt and that the amount claimed in the suit was due.

Paragraph 8 is important and may be re-produced:

As the whole of the consideration of the mortgage sued on was paid towards the decree in Original Suit No. 54 of 1903, the plaintiff is entitled to

step into the shoes of the decree-holders and enforce his mortgage right even as against any encumbrancers that may have acquired any interest on

the mortgaged properties subsequently.

Then, the plaintiff proceeds to say that the second defendant holds a prior charge in the suit properties for her maintenance, that the third

defendant obtained a hypothecation bond, dated 26th April 1909, from the father of the first defendant agreeing inter alia to pay the debt due to

the plaintiff, and that he, in spite of demands, failed to make any payment and is consequently personally liable to pay the lame to the plaintiff.

The latter portion of paragraph II is again very material and it runs as fallows:

The other defendants Nos. 4 to 8 are setting up some subsequently Enquired rights over the mortgaged property that cannot prevail against the

superior rights of this plaintiff and they have, therefore, been made party defendants herin.

The cause of action is stated to have arisen on 13th October 1908 and 13th October 1909, the date fixed for payment of principal and interest,

respectively.

The reliefs asked for in the suit are of the usual nature and comprise a prayer to direct the first defendant to pay the amount due, in default the

property mortgaged to be sold subject to the maintenance charge of the second defendant, and to direct the third defendant to be personally liable

for the suit amount.

It is now represented to us that most, of the defendants Nos. 4 to 48 are some of the alienees to whom the kudiwaram right in various plots

had been transferred previous to the date of the mortgage. In this respect the 14th defendant and many of the others included in this group

denominated defendants Nos. 4 to 48 are in precisely the same position. Though the plaintiff, on the basis of subrogation, stated in the body of the

plaint that the rights of the defendants Nos. 4 to 48 should be postponed to his mortgage he did not in express terms claim any relief on that basis.

It is important to bear in mind that the plaintiff asked in the suit that the sale should be of the property mortgaged to him. The property is

described in the schedule to the plaint and while the description does not contain any reference to the fact that under the mortgage-deed the rights

alienated previously were expressly excluded from the mortgage security, there is the inconsistent addition at the foot of the description ""the right,

title and interest of the first defendant in these lands."" The plaint is thus indeed very confusing and the matter is made worse by what subsequently

followed.

The 14th defendant put in a written statement wherein he alleged that on 13th November 1907 the first defendant''s father sold him the

occupancy right in respect of two mahs of land (now identified with Item No. 123) for Rs. 250 and the said amount was paid for discharging a

portion of the liability under Original Suit No. 54 of 1903. He further pleaded that he was an unnecessary party. The issue in regard to this matter

is Issue No. 11 which runs as follows:

Whether the document dated 13th November 1907 mentioned in paragraph 3 of 14th defendant''s written statement is true, valid and binds the

plaintiff."" It is difficult to understand how this issue came to be framed. The alienation in favour of the 14th defendant was prior in date to the

mortgage in favour of the plaintiff. If the plaintiff challenged the genuineness of the alienation in favour of the 14th defendant and claimed priority on

the footing that the document dated 13th November 1907 was either not genuine or antedated, the issue would be perfectly intelligible. But the

plaintiff did nothing of the kind. He set up a right of priority only on the footing that he had discharged, the previous mortgage dated 7th May 1898

and that he was, therefore, subrogated to the rights of the previous mortgagee and he alleged that, by reason of the right of subrogation which he

thus acquired, his claim had precedence over that of the 14th defendant. In that view it would be unnecessary to determine whether the alienation

in favour of the 14th defendant was true. If the plaintiff proved that he stepped into the shoes of the previous mortgagee, he would establish his

priority independent of the fact whether the document in favour of the 14th defendant was or was not genuine. The right of subrogation set up was

patently false because the mortgage-deed itself excludes in express terms the right created in favour of the 1 alienees previous to the date of the

mortgage, and having regard to the pleadings, the issue framed did not arise at all. In the judgment, reference to this issue is contained in the

following short paragraph: ""11th and 12th issues: There is no evidence on these issues. I find them against 14th and 15th defendants."" The decree

drawn up directed the sale of the hypotheca mentioned in the plaint schedule hereunder described. The schedule to the decree contained the

description as given in the plaint with the words ""the right, title and interest of the defendant."" The decree proceeds to say ""subject to the rights of

the 9th defendant under Exhibit 12, of the 10th defendant under Exhibits 4 and 5, of the 16th defendant under Exhibit 6, of the 32nd defendant

under Exhibit 7, of the 35th defendant under Exhibit 8, of the 43rd and 44th defendants under Exhibits 10 and n and of the 49th and 50th

defendants under Exhibit 9."" It will be seen that the decree did not direct the sale of the properties subject to the right of the 14th defendant over

the two mahs referred to in the written statement (Item No. 123).

The first question to be determined has reference to this Item No. 123. Is it to be supposed that it is included in the property directed to be

sold under the decree or that it is not? The 14th defendant as a prior alienee was not a necessary party to the suit. But, nevertheless, he was

impleaded as a party. Though the alienation in favour of the 14th defendant was not impeached in the plaint on the ground that it was either not

genuine or the document was ante-dated, still there was an assertion in the plaint that by reason of the right to subrogation which he alleged, he was

entitled to priority over the 14th defendant, and the issue, strangely enough, raised the question as to the genuineness and the validity of the sale in

favour of the 14th defendant. The issue was found against him.

Mr. G. Krishnaswami Aiyar, the learned Vakil for the appellant, strongly relied on Radha Kishun v. Khurshed Hossein 555 Ind. Cas. 959 : 38

M.L.J. 424 : 18 A.L.J. 401 : (1920) M.W.N. 308 : 11 C.W.N. 308 : 11 L.W. 518 : 22 Bom. L.R. 557 : 47 I.A. 11 : 47 C. 662 : 28 M.L.T. 425

: 25 C.W.N. 417 (P.C.), but this hardly assists him because it proceeded upon the footing that the sahoos did not in the former suit seek to

displace. ""Bakhtai Mull''s position, therefore, it was that he was a prior mortgagee with a paramount claim outside the controversy of the suit unless

his mortgage was impugned."" Sri Gopal v. Pirthi Singh 214 A. 429 : 29 I.A. 118 : 4 Bom. L.R. 827 : 6 C.W.N. 889 : 8 Sar. P.C.J. 293 is a more

direct authority. In that case as in this, the paramount right based on subrogation was claimed. It was held that ""the prior mortgagee who was

impleaded and whose mortgage was impeached was under a duty to set up an earlier mortgage."" The facts of the present case bear a very strong

resumblance to those of Sri Gopal v. Pirthi Singh 214 A. 429 : 29 I.A. 118 : 4 Bom. L.R. 827 : 6 C.W.N. 889 : 8 Sar. P.C.J. 293 quoted above.

If the 14th defendant had failed to set up his right in the suit, he would be barred by res judicata from asserting those rights subsequently. He,

however, did set up his rights and there was an adjudication against him. The decree that was passed in the suit did not save his lights and it must

be taken that there was a final adjudication in regard to the Claim set up by him. The difficulty, however, is in reconciling the judgment which

contains a finding against the 14th defendant with the decree which directs the sale merely of the ""right title and interest, of the first defendant."" But

having regard to the claim, the defence, the issue framed and the decision embodied in the judgment and having also regard to the further fact that

the decree expressly excludes from its operation, the rights claimed by certain other defendants, I am constrained to come, to the conclusion that,

notwithstanding the words in the decree ""the right, title and interest of the first defendant"", the interest of the 14th defendant in. the two mahs

referred to in the written statement (Item No. 123) is included in the property directed to be sold by the decree. I am, therefore, of the opinion that

the learned Subordinate Judge is right in having decided that the 14th defendant is not entitled to claim that Item No. 123 should be excluded from

the proclamation of sale.

With regard, however, to Items Nos. 115 and 126, the case is different. No plea was put forward regarding them by the 14th defendant

similar to the plea he raised in respect of Item No. 123. It seems strange that he did not set up his paramount title to these items because his claim

to all the three plots arose from a transaction or transactions of the same date and was based on one and the same footing. But, however, the fact

remains that he did not claim any right in the written statement to the two plots under consideration. In the circumstances, if, nevertheless, a decree

had been passed directing the entire village of Kovilur to be sold, under the ruling quoted above Sri Gopal v. Pirthi Singh 214 A. 429 : 29 I.A. 118

: 4 Bom. L.R. 827 : 6 C.W.N. 889 : 8 Sar. P.C.J. 293 , the 14th defendant''s rights would have become subject to the rights of the plaintiff and he

could not contend that he was not bound by the decree. But, fortunately for. him, the decree directed only the right, title and interest of the

mortgagor to be sold, and inasmuch as there is no adjudication negativing the 14th defendant''s admitted right of priority in respect of these two

items we must construe the decree strictly and hold that the interest of the 14th defendant in these two plots is not included in the property directed

to be sold under the decree. The respondent''s learned Vakil tried to show that the words ""the right, title and interest of the first defendant"" should

be read as laying reference not to the date of the suit, nor to the date of the mortgage in the plaintiff''s favour but to the date of the previous

mortgage which the plaintiff claimed he had discharged. Bu1 he was obliged to admit that the judgment b) the case does not support this

contention. As a matter of fact the judgment nowhere recognises the right to priority by reason of subrogation claimed by the plaintiff. There is no

discussion regarding it in the judgment. Presumably there was no evidence given or argument directed in order to support the claim alleged in the

plaint. No doubt the judgment saves in express words the rights of some of the defendants, alienations in whose favour were prior to the date of

the mortgage. But this was not done as a result of any judicial determination of the question. These defendants were excluded from the operation of

the decree merely because the plaintiff admitted in each case that the claim of the defendant might be treated as paramount. I find no indication

whatever in the judgment that the right of priority claimed by the plaintiff was adjudicated upon, and it, therefore, follows that the words ""the right,

title and interest of the first defendant"" must have reference only to the date of the mortgage-deed in favour of the plaintiff.

In the result, I hold that the kudiwaram rights acquired by the appellant in virtue of the salein his favour inplots Nos. 118 and 126 are not

covered by the decree and that the Subordinate Judge is wrong in having refused to give effect to these rights. The appeal in so far as it relates to

Item No. 123 is dismissed, and in so far as it relates to Items Nos. 118 and 126 is allowed.

Spencer, J.

I agree. The parties will pay and receive proportionate costs to the extent to which they have succeeded in appeal.