Samayya and Another vs Nagalingam and Others

It is not clear what the lower Courts intended to find to have been the effect of the division between the three original usufructuary mortgagees,

the third defendant''s father, defendant No. 4 and Betra Pantulu. The Munsif in paragraph 14 of his judgment finds that there was an agreement that

each mortgagee should discharge his debt from the usufruct of the plots that went to his share, and that an agreement must be inferred that one

should have no further claim on the plots that went to the other. If this were the effect of the division, then the plots B and, E were only subject to

the fourth defendant''s share of the mortgage debt which was extinguished by his release, and therefore they came into the first plaintiff''s hands

upon the occasion of the usufructuary mortgage to him free from any claim under the original mortgage- and could not be sold in execution of the

third defendant''s decree upon that mortgage. But the above finding of the Munsif is inconsistent with another part of his judgment, paragraph 20,

where he holds that every part and parcel of the mortgaged property is liable to every pie of the debt, which again appears to be inconsistent with

the last part of the same paragraph. The District Judge appears to agree with the Munsif as to the fact of the division, but has not found distinctly as

to its effect. But we think it is not necessary to call for a finding on this question, as the case can be disposed of on the facts as found. We agree

with the District Judge that as usufructuary mortgagees the plaintiffs cannot sue for sale of the mortgaged property. It is argued for the appellants

that the circumstances mentioned in Section 68 of the Transfer of Property Act having occurred, that Section gives them the right to sue for the

mortgage debt, and therefore, by implication a right to sue to enforce the debt by sale of the mortgaged property. We cannot concur in this

reasoning, assuming the circumstances contemplated by Section 68 exist in this case.

Sections 67 and 68 deal with three kinds of rights of mortgagees, viz., foreclosure, sale and suit for the money clue, Section 67 being concerned

with the two first and Section 68 with the last. Section 68 declares the right of the mortgagee to sue for the mortgage money in certain cases, but it

does not affect the provisions of Section 67 as to his right to foreclosure or sale, and that Section expressly denies to a usufructuary mortgagee the

right to sue for foreclosure or sale. It is true third defendant was also only a usufructuary mortgagee and therefore had no right to sue for sale of the

mortgaged property, and the decree for sale and the sale under it might have been set aside as regards plots B and E at the instance of plaintiffs

who were no parties to that suit. Plaintiffs might, therefore, have sued to have the sale declared invalid as against them and as a necessary

consequence to be put in possession of the plots B and E, of which they have been illegally dispossessed. This, however, is not the suit plaintiffs

have brought, and we do not think the present suit can be allowed to be converted into one of that nature. They have mistaken their remedy and

must be content with the decree for the money which they have obtained and against which there is no appeal.

It is unnecessary to decide whether the District Judge was right in holding that the circumstances contemplated by Section 68 of the Transfer of

Property Act as entitling a mortgagee to sue for the mortgage money exist in this case, as there is no appeal against that part of the decree. The

appeal fails and is dismissed but without costs, as the conduct of third defendant''s guardian in bringing the property to sale and of first and second

defendants in dispossessing plaintiffs was illegal.

On behalf of third defendant, a minor, a memorandum of objections is presented by his guardian objecting to that part of the decree of the lower

Appellate Court which makes him liable for all the costs of all parties throughout. This is clearly wrong. The minor cannot be made personally

responsible for the act or defaults of his guardian or of the first and second defendants.

We think the proper decree as to costs is that all parties do bear their own costs throughout. We shall modify the decree of the lower Appellate

Court accordingly. We make no order as to costs of the memorandum of objections.