Seth Bansiram Jashamal through his authorised Agent and Managing Partner, Lilaram vs Gunnia Naga Aiyar and Others

Ramesam, J.—This revision petition arises out of an order passed by the Subordinate Judge of Madura directing amendment of the plaint in

O.S. No. 76 of 1928 and the payment of additional Court-fee. He passed this order in consequence of his finding on the 3rd issue which was

argued as a preliminary issue.

The suit was filed by the plaintiff who was one of several mortgagees in a mortgage document, Ex. A, for Rs. 34,000. The document recites that

the consideration of Rs. 34,000 was made up of the sums due on prior separate documents to the; mortgagees, namely, the plaintiff and

defendants 5 to 10. There is no doubt that the amount of the mortgage money belonged in separate shares to the mortgagees so far as their

interests inter se are concerned. But the question now is what is the correct legal position in a suit against the mortgagor when one of the

mortgagees wants to sue. Section 67, Clause (d) of the Transfer of Property Act enacts:

Nothing in this section shall be deemed to authorise a person interested in part only of the mortgage money to institute a suit relating only to

a""corresponding part of the mortgaged property, unless etc.

This section does not prohibit a person interested in part only of the mortgage money instituting a suit to recover his share of the mortgage

money only by framing the suit to relate to the whole of the mortgaged property but not to a corresponding part of the mortgaged property. Once

the mortgagee frames his suit praying his relief for sale or for foreclosure so as to operate upon the whole of the mortgaged property, instead of a

corresponding part of the mortgaged property, the obstacle of this section disappears. In this case the plaintiff has prayed for sale of the whole of

the mortgaged properties. The mischief of the prohibition mentioned in Section 67 does not operate in the present case.

As to the maintainability of the suit by one only of the mortgagees, whether he sues for his portion of the money or for the whole of the debt,

there can be no question. If he sues for his share of the debt only, all that he has to do is to avoid the prohibition in Section 67. But if he sues for

the whole of the mortgage debt, if he does so with the consent of the other co-mortgagees either because the other co-mortgagees do not claim

any share in the mortgage amount and the whole amount from the beginning belonged to the plaintiff or because there is some private arrangement

by which the plaintiff has since become entitled to the whole and the co-mortgagee is not entitled to any portion of the debt now, or because the

co-mortgagee only has been paid off his share of the debt but the plaintiff has not been paid oft his share of the debt:-whatever the reason may be-

-the suit is certainly maintainable. An illustration of this occurs in Atchamma v. Subbatayudu (1903) 15 M.L.J. 496. In that case the co-mortgagee

admitted that he was not entitled to any interest in the mortgage money and the suit was held to be maintainable. The proposition is also, clear from

the observations of their Lordships of the Privy Council in 24 CWN 297 (Privy Council) . But where there is no consent of the co-mortgagee then

the plaintiff must make the co-mortgagee a party defendant and sue for his share of the mortgage debt and must take care to see that he is

proceeding against the whole of the mortgaged property. This is also clear from the observations of the Privy Council in the case just mentioned.

Thus the real question in all such cases is not one of maintainability of the suit but what is the Court-fee to be paid by the plaintiff in such cases and

perhaps though the point does not arise now there is also the question of jurisdiction. In such cases, should the plaintiff pay Court-fee upon the

whole of the, mortgage money or only upon his share? It is true that for realising his share of the mortgage money he has to pray for sale of the

whole property. That prayer is already in the plaint in the case before me. Why, therefore, the Subordinate Judge should direct an amendment of

the plaint by adding a prayer in respect of the entire mortgagee''s interests I do not see. The plaintiff already asked for a sale of the whole of the

mortgaged property. If the whole of the mortgaged property realised more than the amount due on the document to all the mortgagees, the plaintiff

will be simply paid his amount and the rest of it will be held by the Court and will not be paid to the other co-mortgagees until they pay their Court-

fees. The fear that the Government will be deprived of the Government revenue while the whole of the mortgage amount is being realised and only

a small amount is being paid as Court-fee, is therefore illusory. After the trial of the case and the final decree is passed, the Court will make a

provision directing the defendants-mortgagees to pay their Court-fees within a certain time and if they do not pay the Court-fees the amount will be

paid to the mortgagor after taking security. In such as case no mortgagee will allow his money to go back to the mortgagor''s hands owing to non-

payment of Court-fees, so that ultimately the Government will get the whole Court-fee due upon the whole of the mortgage money. The suit then

becomes somewhat analogous to a partition action the plaintiff paying Court-fees only on the share due to him; the other sharers will be arrayed as

defendants who will pay Court-fees on the shares due to them and get decrees in respect of their shares on payment of such Court-fees. From this

point of view, no doubt, the suit really concerns the whole of the mortgage. I do not See why the plaintiff should be called upon to pay the Court-

fees due on the whole of the mortgage amount. Cases are not infrequent in Courts where as incidental to the relief to be given to the plaintiff an

issue has to be determined by the Court which may have consequences much wider than the relief which the plaintiff seeks; for instance, an issue as

to adoption in a suit for rent or money due on a bond or promissory note. In such cases the plaintiff is not asked to pay Court-fees on all the

properties which he gets by reason of the adoption. After all, the plaintiff seeks the assistance of the Court to get a certain relief and he pays

Court-fees on that relief. The fact that the Court expresses some opinion on a matter of a large value for giving the relief the plaintiff seeks is no

reason why the plaintiff should be made to pay a larger Court-fee. In the present case the plaint as framed seems to be correct as already

observed. If on sale of the whole of the property the amount realised becomes less than the mortgage amount due on the document, all the

mortgagees must suffer rateable diminution of course subject to questions of priority raised by the plaintiff, as to which I say nothing now. Apart

from such questions of priority rateable diminution seems to be necessary and the plaintiff will get the amount due to him after calculating the

proportionate amount.

It is suggested to me by the respondents that'' there may be further questions arising in the case after the sale of the mortgaged properties such

as (1) personal decree against the mortgagor and his other properties if the sale proceeds are not sufficient to pay the mortgage amount (2) the

right of the mortgagees to proceed against the surety who is the 11th defendant in the suit, and (3) any such other points that might possibly arise. It

is said there is some compromise between the plaintiff and respondents 7 to 10. The whole suit may be tried subject to such terms, whatever they

are. If the case proceeds on the footing that the plaintiff and the defendant co-mortgagees all stand somewhat in the position of plaintiffs as in a

partition suit, there is no objection to working out the personal decree and even the rights against the sureties in this very suit even assuming for a

moment that the plaintiff does not care to prosecute those remedies or compromised the matter with the sureties or with the mortgagors. With this

understanding the suit can be allowed to proceed without any need for further amendment remembering that the whole of the property sought to be

sold is really the entire mortgagee''s"" interests which is after all the point which the Subordinate Judge seems to be particular about. With these

observations I hold that no amendment of the plaint is necessary and direct that the suit be permitted to proceed as it is. I make no order as to

costs.