Syamalarayudu vs Subbarayudu And Anr. on 7 September, 1897

Madras High Court
Syamalarayudu vs Subbarayudu And Anr. on 7 September, 1897
Equivalent citations: (1898) ILR 21 Mad 143
Bench: S Ayyar, Davies


1. There is no dispute that the plaintiff did pay off the mortgagees with a sum of Rs. 1,084. He would ordinarily be entitled to step into their shoes and to claim payment of his mortgage money out of the property originally mortgaged now in the hands of the second defendant whose liability to pay the mortgage amount was established in the very suit in which the sale to him was upheld. The ground given in the Courts below for refusing to allow plaintiff’s payment to be a charge upon the property was that the payment was not bond fide, and that it was not bond fide because it was made during the tendency of the suit between plaintiff and second defendant about the sale. We fail to see in this circumstance anything to affect the validity of the payment which was no doubt made by the plaintiff for the purpose of strengthening his own claim. The plaintiff’s illegal act in antedating his sale-deed, also for the purpose of supporting his title does not vitiate the payment subsequently made, and which in itself was legal. There was therefore, no want of bond fides, and certainly no fraud. We must accordingly allow the second appeal and direct that a decree for sale of the property be drawn up in the ordinary form for the sum of Rs. 1,084 with interest thereon at the rate of 12 percent, per annum on Rs. 660 from the 11th March 1891 and on Rs. 424 from the 3rd March 1891 up to the date of the plaint, with 6 percent, per annum thereafter until date of realization. The date for payment is fixed for the 7th March 1898. The second defendant must pay the plaintiff’s costs on the above amount throughout. In other respects the decree of the Munsif is confirmed.

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