Vijayabhushanammal and Others vs C.N. Evalappa Mudaliar and Another

There are no merits in this Second Appeal. Some technical objections are raised but the only arguable objection is that Section 67(d) of the

Transfer of Property Act prohibits a suit by one of several do-mortgagees who is interested in part only of the mortgage money from suing for sale

of a corresponding portion of the mortgaged property, ""unless the mortgagees have with the consent of the mortgagor severed their interests under

the mortgage"" and that the present suit is such a suit.

The rather unhappy wording of the section no doubt lends some colour to this contention; but we do not think that the legislature intended to on

act that if the severance of the interests of the mortgagees has taken place in any other lawful mode legally binding on the mortgagor (as for

instance by the decree of a Court of justice in a suit to which the mortgagor is a party and which has become binding on him, though he has not

given his consent to the passing of the decree which has the legal effect of causing the severance) the mortgagor may still resist a suit for sale for

recovery of a portion of the mortgage money on the basis of such severance. The legislature merely intended to protect the mortgagor from being

harassed by a multiplicity of suits where the severance of the interests of the mortgagees has taken place without his consent. The decision of a

Court of justice effecting such a severance if binding on the mortgagor must be at least as affective legally as the mortgagor''s consent to the

severance. In the present case, there was a decree in a suit brought by the plaintiff''s co-mortgagee to which suit the mortgagor was a party and it

was declared that there had been a severance of the mortgage binding on the mortgagor. That decree might be erroneous but it was not appealed

against and has become final. The plaintiff''s claim for recovery of his share of the mortgage money on the basis of such severance ''cannot

therefore be resisted by the mortgagor.

This Second Appeal fails and is dismissed with costs. The connected Second Appeal No. 2118 of 1912 follows.

As regards the memorandum of objections in Second Appeal No. 2601, the District Judge was right in crediting the amount paid by the sale of

a portion of the mortgaged property towards the principal of the mortgage debt, in the absence of any specific appropriation by either party. The

principal amount is the earlier debt and though by indication from circumstances a payment might in some cases more appropriately be credited

towards interest in the first instance. See Section 60 of the Indian Contract Act, and Section 76, Clause (6) of the Transfer of Property Act IV of

1882, There might be circumstances indicating the other way; and we think that the learned District Judge was right in holding that there were such

circumstances in this case.

The memorandum of objections is dismissed with costs.