Balanagammal Vs. Rangaswamy Gounder and Others - Court Judgment

Excerpt:
- - order 1. the unsuccessful plaintiff is the appellant. the 1st defendant knowing fully well that the plaintiff and the 2nd defendant are living separately, has created ex.order1. the unsuccessful plaintiff is the appellant. 2. the case is brief is as following: the plaintiff filed a suit for recovery of mortgage amount. on 29.7.90 the 1st defendant usufructurily mortgaged the suit property in favour of the plaintiff and her husband, the 2nd defendant for rs. 5000. till 5.12.81 the 2nd defendant was cultivating the land, thereafter, her father was looking after the mortgaged property. since there was divorce between the plaintiff and the 2nd defendant effected by the panchayatdars, the 2nd defendant was also assigned his part of creditorship to the property in question in favour of the plaintiff. on 1.8.83 the plaintiff called upon the 1st defendant to pay the mortgageamount. however, he refused to make payment and took possession of the property forcibly. 3. the 1st defendant resisted the suit, stating that he was not a ware of the divorce between the plaintiff and her husband. on 7.2.83 with bona fide impression he made the payment to the husband, which would amount payment to the wife also. he also got a receipt from her husband. the 2nd defendant received the same only for himself and also on behalf of his wife. he also gave up possession of the property in his favour. now the plaintiff and the 2nd defendant are colluding together to defraud him. 4. the trial court framed 2 issues and two additional issues and on behalf of the plaintiff exs.a1 to a7 were marked and p.ws.l and 2 were examined and on the side of the defendants ex.bl was marked and d.ws.l and 2 were examined. the trial court passed a preliminary decree as prayed for and aggrieved against this, the 1st defendant preferred a.s.137 of 1985 on the file of ii additional district judge, pondicherry and the appeal was allowed and the judgment and decree of the trial court were set aside and the suit was dismissed with costs against the 1st defendant, holding that the debt has been discharged by the 1st defendant, but the suit was decreed for rs.2500 with pre costs against the 2nd defendant. aggrieved against this, the plaintiff has come forward with the second appeal. 5. the plaintiff/appellant raised the following substantial questions of law: (1) whether the lower appellate court erred in holding that under ex.b1 the 2nd defendant is to pay the sum of rs.2500 and the first defendant is not liable to pay since the debt has been discharged by payment under ex.b.l? (2) whether the lower appellate court erred in not decreeing even rs.2500 against the 1st defendant by holding that the discharge given by the 2nd defendant is absolute and valid? 6. the points that arise for consideration are (1) whether the 1st defendant is liable to pay the mortgage amount as claimed by the plaintiff? and (2) whether the alleged payment by the 1st defendant to the 2nd defendant would absolve his liability? 7. points: it is admitted that the 1st defendant usufructurily mortgaged the property in favour of the plaintiff and her husband the 2nd defendant for rs. 5000. there was misunderstanding between the plaintiff and the 2nd defendant and there was also panchayat, in which the 1st defendant was one of the panchayatdars. however, now the 1st defendant has taken a stand that he had paid the entire amount with the 2nd defendant on 7.2.83 and also obtained receipt under ex.b.l. the learned counsel for the plaintiff stated that the mortgage cannot be divided by the 1st defendant and he ought to have made payment to the mortgages. the 1st defendant knowing fully well that the plaintiff and the 2nd defendant are living separately, has created ex.bl onlyto defeat the right of the plaintiff. the learned counsel for the plaintiff also pointed out that ex.bl will not be a valid discharge. payment to a co-mortgagee will not amount to valid discharge on mortgage and, as such, the 1st defendant should be directed to pay the entire amount and the judgment and decree of the lower appellate court are liable to be set aside. 8. the learned counsel for the plaintiff relied on the decision in ganpatia v. chhoti, , wherein it is observed that 'the character of indivisibility of mortgage exists not only with reference to the mortgagee but also with reference to the mortgagor and save by special arrangement between all parties interested, neither the mortgagor not the mortgagee, nor persons acquiring partial interest through either of them, can obtain relief under mortgage except in consonance with the principle of indivisibility.' this decision is applicable to the case on hand. 9. the learned counsel for the plaintiff also relied on the decision in ambe lal and others v. phina and others, , wherein it is observed that 'plaintiff co-mortgagees inducing co-mortgagors to make payment to them without obtaining consent of other co-mortgagees plaintiffs are not estopped from pleading that redemption was invalid'. this decision is also applicable to the case on hand. 10. considering the aforesaid decisions, it is manifestly, clear that the 1st defendant has no right, whatsoever, to pay the amount with one of the mortgagees ignoring another co-mortgagee, viz., the plaintiff. the receipt ex. b1 will not amount to a valid discharge and the 1st defendant has no right to divide the amount and pay the same. the entire approach made by the lower appellate court is not proper and correct and since there is an erroneous application of law, interference is called for. the plaintiff is entitled to get a decree as prayed for against the 1st defendant. it is, however, open to the first defendant to proceed against the 2nd defendant if really he has made any payment to the 2nd defendant. 11. for the reasons stated above, the second appeal is allowed and the judgment and decree of the lower appellate court are set aside and the preliminary decree passed by the trial court is restored. the plaintiffs is also entitled to costs throughout. time for payment one month.

Judgment:
ORDER

1. The unsuccessful plaintiff is the appellant.

2. The case is brief is as following:

The plaintiff filed a suit for recovery of mortgage amount. On 29.7.90 the 1st defendant usufructurily mortgaged the suit property in favour of the plaintiff and her husband, the 2nd defendant for Rs. 5000. Till 5.12.81 the 2nd defendant was cultivating the land, thereafter, her father was looking after the mortgaged property. Since there was divorce between the plaintiff and the 2nd defendant effected by the Panchayatdars, the 2nd defendant was also assigned his part of creditorship to the property in question in favour of the plaintiff. On 1.8.83 the plaintiff called upon the 1st defendant to pay the mortgageamount. However, he refused to make payment and took possession of the property forcibly.

3. The 1st defendant resisted the suit, stating that he was not a ware of the divorce between the plaintiff and her husband. On 7.2.83 with bona fide impression he made the payment to the husband, which would amount payment to the wife also. He also got a receipt from her husband. The 2nd defendant received the same only for himself and also on behalf of his wife. He also gave up possession of the property in his favour. Now the plaintiff and the 2nd defendant are colluding together to defraud him.

4. The trial court framed 2 issues and two additional issues and on behalf of the plaintiff Exs.A1 to A7 were marked and P.Ws.l and 2 were examined and on the side of the defendants Ex.Bl was marked and D.Ws.l and 2 were examined. The trial Court passed a preliminary decree as prayed for and aggrieved against this, the 1st defendant preferred A.S.137 of 1985 on the file of II Additional District Judge, Pondicherry and the appeal was allowed and the judgment and decree of the trial court were set aside and the suit was dismissed with costs against the 1st defendant, holding that the debt has been discharged by the 1st defendant, but the suit was decreed for Rs.2500 with pre costs against the 2nd defendant. Aggrieved against this, the plaintiff has come forward with the second appeal.

5. The plaintiff/appellant raised the following substantial questions of law:

(1) Whether the lower appellate court erred in holding that under Ex.B1 the 2nd defendant is to pay the sum of Rs.2500 and the first defendant is not liable to pay since the debt has been discharged by payment under Ex.B.l?

(2) Whether the lower appellate court erred in not decreeing even Rs.2500 against the 1st defendant by holding that the discharge given by the 2nd defendant is absolute and valid?

6. The points that arise for consideration are (1) Whether the 1st defendant is liable to pay the mortgage amount as claimed by the plaintiff? and (2) Whether the alleged payment by the 1st defendant to the 2nd defendant would absolve his liability?

7. Points: It is admitted that the 1st defendant usufructurily mortgaged the property in favour of the plaintiff and her husband the 2nd defendant for Rs. 5000. There was misunderstanding between the plaintiff and the 2nd defendant and there was also panchayat, in which the 1st defendant was one of the panchayatdars. However, now the 1st defendant has taken a stand that he had paid the entire amount with the 2nd defendant on 7.2.83 and also obtained receipt under Ex.B.l. The learned counsel for the plaintiff stated that the mortgage cannot be divided by the 1st defendant and he ought to have made payment to the mortgages. The 1st defendant knowing fully well that the plaintiff and the 2nd defendant are living separately, has created Ex.Bl onlyto defeat the right of the plaintiff. The learned counsel for the plaintiff also pointed out that Ex.Bl will not be a valid discharge. Payment to a co-mortgagee will not amount to valid discharge on mortgage and, as such, the 1st defendant should be directed to pay the entire amount and the judgment and decree of the lower appellate court are liable to be set aside.

8. The learned counsel for the plaintiff relied on the decision in Ganpatia v. Chhoti, , wherein it is observed that 'The character of indivisibility of mortgage exists not only with reference to the mortgagee but also with reference to the mortgagor and save by special arrangement between all parties interested, neither the mortgagor not the mortgagee, nor persons acquiring partial interest through either of them, can obtain relief under mortgage except in consonance with the principle of indivisibility.' This decision is applicable to the case on hand.

9. The learned counsel for the plaintiff also relied on the decision in Ambe Lal and others v. Phina and others, , wherein it is observed that 'plaintiff co-mortgagees inducing co-mortgagors to make payment to them without obtaining consent of other co-mortgagees plaintiffs are not estopped from pleading that redemption was invalid'. This decision is also applicable to the case on hand.

10. Considering the aforesaid decisions, it is manifestly, clear that the 1st defendant has no right, whatsoever, to pay the amount with one of the mortgagees ignoring another co-mortgagee, viz., the plaintiff. The receipt Ex. B1 will not amount to a valid discharge and the 1st defendant has no right to divide the amount and pay the same. The entire approach made by the lower appellate court is not proper and correct and since there is an erroneous application of law, interference is called for. The plaintiff is entitled to get a decree as prayed for against the 1st defendant. It is, however, open to the first defendant to proceed against the 2nd defendant if really he has made any payment to the 2nd defendant.

11. For the reasons stated above, the second appeal is allowed and the judgment and decree of the lower appellate court are set aside and the preliminary decree passed by the trial court is restored. The plaintiffs is also entitled to costs throughout. Time for payment one month.