9911796707
TMI Blog1938 (2) TMI 14X X X X Extracts X X X X X X X X Extracts X X X X ..... paying off in part the amount due to Rangiah Goundan under the mortgage of 1918: (d) On 27th November 1928 defendant 5 (he having in the meantime become entitled to the suit property in virtue of a family partition) made a final payment of ₹ 5000 (in addition to ₹ 2000 already paid) to Rangiah Goundan, who thereupon executed in his favour a deed of release relinquishing his rights over Survey No. 116: (e) On 11th November 1931 the plaintiff as the assignee, as already stated, of Rangaswami Naicken brought the present action to enforce the mortgage of 1922. 2. As the dates above will show, the conveyance--the root of defendant 5's title -- is subsequent to the mortgage sued on, that of 1922; his later acquired right, if it stood alone, should obviously be postponed to the suit mortgage which is earlier in date. But the question is, whether he is entitled to keep alive, for his benefit and protection, any portion of the mortgage of 1918, discharged by him in part; in short whether he can invoke the doctrine of subrogation. S. 92, T.P. Act inserted by the Amending Act (20 of 1929) has crystallized, as it were the Indian law relating to subrogation. Prior to the amen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ended to be retrospective; (b) Some as to which it was equally clear, that they were not intended to be retrospective; (c) Others expressed in ambiguous terms. 5. Referring to group (c), his Lordship says that the general rule of every civilized nation is, in the absence of express words to the contrary, that any new law that is made, affects future transactions, not past ones; the opposite rule applies in regard to procedure and possibly in matters of evidence. 1898 AC 469 Young v. Adams, (1898) AC 469: 67 LJPC 75: 78 LT 506: 14 TLR 373 is a very strong case. There the respondent was dismissed when the Civil Service Act, 1884, was in force. By that Act the Government had no power to dismiss a civil servant except upon the grounds, after the enquiry which it prescribed. There was the later Act of 1895, S. 58 of which enacted: Nothing in this Act, or in the Civil Service Act of 1881, shall be construed or held to abrogate and; restrict the right of the Crown as it existed before the passing of the said Civil Service Act to dispense with the services of any person employed in the public service. 6. This Act was passed five months after the summary dismissal of the respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the third being on the lands alone and the second on the crops also. The mortgagor's lands were brought to sale in execution of a simple money decree and purchased by one Pingala subject to the mortgages. The second mortgagee having obtained judgment on his mortgage, obtained orders for sale of the crops. Pingala or his representatives paid the second mortgagee sums of money and saved the crops from seizure. While this was going on, the third mortgagee sued to judgment upon his own mortgage and caused the lands to be sold out freed from the mortgages. After payment of the amount due to the first mortgagee, there remained in Court to the credit of the first mortgagee's action ₹ 1327 odd. 8. The question arose, who was entitled to this amount--Pingala or the third mortgagee? In other words, could Pingala claim that he stood in the shoes of the second mortgagee, and use the mortgage in the latter's favour, as a shield against the claims of the third mortgagee ? Their Lordships first point out that Pingala would be entitled to the amount under a specific order of the High Court; with that part of the decision which lays down no principle, we are not concerned. Then ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to refute this view. Before 11 IA 126 Gokuldas Gopal Das v. Puran Mal Premsukh Dae, (1884) 10 Cal 1035: 11 IA 126: 4 Sar 543 (PC) the many times quoted, the law was uncertain in India as to the scope of this equitable doctrine. That decision refused to recognize the authority of (1816) 3 Mer 210, Toulmin v. Steer, (1816) 3 Mer 210: 17 RR 67 disapproved the Calcutta and the Bombay judgments based upon that case and affirmed the Madras view taken in 7 MHCR 229. Ramu Naicken v. Subbaraya Mudali, (1874) 7 MHCR, 229 Their Lordships then go on to point out that in (1816) 3 Mer 210 Toulmin v. Steer, (1816) 3 Mer 210: 17 RR 67 the first mortgage was paid off out of the purchase money, but the very opposite was the fact in the case before them; on that ground the case could be distinguished from (1816) 3 Mer 210, Toulmin v. Steer, (1816) 3 Mer 210: 17 RR 67 but what follows clinches the matter: Their Lordships do no not think it necessary to do this, as they are not prepared to extend this doctrine to India. 10. The matter does not stop there. In 29 IA 9, Dinobandu Shaw v. Jogmoya Dasi, (1902) 29 Cal 154: 29 IA 9: 6 CWN 209 (PC) the facts were such as to afford scope for the applicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goes against the trend of the Madras decisions. In 34 Mad 119 Govindaswami Thevan v. Doraswami Pillai, (1911) 34 Mad 119: 6 IC 781: 20 MLJ 380 : 1910 MWN 390 there was a first mortgage in favour of C and a subsequent mortgage granted to the plaintiff. The owner then sold the property to defendant 4, who undertook to pay off with the purchase money both C and the plaintiff. He kept his word as to C but failed to pay off the plaintiff. The question arose whether as against the plaintiff he was entitled to subrogation. The answer was in the negative. The learned Judges, Benson and Krishnaswami Aiyar, observe that it was clear on the facts, that the intention to keep alive the first mortgage as against the puisne encumbrance could not be presumed, as the object of defendant 4's transaction was not to keep alive C's mortgage, but to discharge the plaintiff's encumbrance as well. And then they go on to add what for the present purpose is very important: The rule as to subrogation only applies when the purchaser has not covenanted to discharge the previous encumbrance. In the present case both the previous mortgages were arranged to be discharged by the purchaser, not mere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to pay off the third mortgage. It was held that he had no priority as against the third mortgagee. It is upon the observation made in this case that the plaintiff's counsel relies. Were this a decision on the point now raised, it would be binding upon us, and there would be an end to the matter, whether we were disposed to agree with it or not. The case was considered from two different standpoints. First, what would be the effect if S. 92 applied? With that aspect we are not here concerned, as the present case, as already observed, is governed by the law as it stood before the amendment. Secondly, would the appellant's contention prevail under the law as unaffected by S. 92? The learned Judges held, following 34 Mad 119 Govindaswami Thevan v. Doraswami Pillai, (1911) 34 Mad 119: 6 IC 781: 20 MLJ 380 : 1910 MWN 390 and 53 Mad 188 Laksmi Achi v. Narayanaswami, AIR (1930) Mad 51: 124 IC 497: 63 Mad 188: 57 MLJ 746 referred to above, that he had no right of subrogation. It therefore follows that such observations as occur in this judgment, as to the state of the law previous to the amendment, on the question now raised, are obiter. We must say we find it difficult to follow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e same position as his vendor, go on to add the following limitation, which gives effect to the principle abovementioned: This rule would not apply if the owner of the property (by which expression is meant the purchaser) had covenanted to pay the later mortgage debt. (The words within brackets are ours.) 15. One word more. There has been a good deal of debate as to the effect of Jag Mohan Das v. Jugal Kishore, AIR (1932) PC 99: 137 IC 475 (PC) (a decision on appeal from the Oudh Chief Court.) This was relied on by the Judges in the Full Bench decision of the Allahabad Court, ILR (1937) All 880, Hira Singh v. Jai Singh, AIR (1937) All 588: 171 IC 153: ILR (1937) All 880: 1937 ALJ 840 (FB) and also by Venkataramana Rao J. in the Madras Full Bench case already referred to: 59 Mad 359. Lakshmi Amma v. Sankara Narayana Menon, AIR (1936) Mad 171: 160 IC 137: 59 Mad 359: 70 MLJ 1(FB). The supposed importance of this decision lies in the fact that it was approved by the Privy Council. But that tribunal did no more than dismiss the appeal summarily, adding, however, the remark that as to all the points urged before the Board their Lordships agreed completely with the judgment of ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
