$ $ at In the High "ourt of Trevancore-Cochin. · Before The Hon'ble Shri N.Varadaraja Iyengarj Judge. The Hon'ble Shri P.D. Nandana Menon, udge. A. s. No. 5 of 1955. Judgment. o.s.No.161 of 1951 of the District Court of Quilon. lppellant: lwt defendant. Sankara Pillai Pachu Pillai, Kumaramangalathu Puthen Veedu, Kizhakkekara Muri, Kottarakara Pakuthy. By advocate Shri T.K.Narayana Pillai. Respondents: Plaintiffs 1 and 2. 1. Kumara Pillai Kris~na Pillai of Kumaramangalatbp Puthen Veedu,\i<i:zhakkekara Muri, Kottarakkara Pakuthy. 12, Kumara Pillai Ramakrisbnan Nair of do. lt tespondent by Advocate Shri s.Narayanan Potti. Tbis appeal having been heard on 7. 3. 1956 the eourt on 14. 3. 1956 delivered the following £ I N.Varadaraja Iyengar & Nandana Menon, JJ. Appeal Suit No. 5 or 1955. Judgment. Delivered by Nandana £i8!1on, J ._ I'. ?j, t I · · This appeal is by the fi:rst defendsnt in the suit. '.[he circumstances leadL1'lg to this appeal arc as fol1osst The Dlstntiffs claimed to be the son~ of ,yyappan Piliai Kumara ?illai of Mangalath Puthen V~~au. '£he dafendants are the sons of Samara Pi1la1y brothor, deceased Sankara . . Pillai. Sankara Pillai and Kmara P111ai had exec;ad a hypothecation bond copy of which is filed as Ex.C dated 9. 3. 1104 in favour of one Bhan:+ Bhan Pandara hi1 for ?000 fanarns. On the basis of that bond Pandarathil obtained a decree in o.s. 616 of 1109 r-3nd assigned th!1 rights - th0!'Emnder to one Bhaskart=tn Hayar. ·when the assignee sought . . to execute the docroe he first defendnt contended that the decree debt had been a1sch0rged. The executinn court upheld that plea but in appe~l the assignee decroaholder was allowed to realise the ·whole debt f'rom ?-Cu.rnn:ca Pillai. Thus the properties of Kumara Pill~i socu ed for th~ debt became liable for the entire amo1.mt due un'der the decree. 'l'b.e plainti::'fs car.ie forward with the suit contending that the amou...'1t had been borrowed for the purpose of Sanka:"::i Pillai and hence they are entitled to be reimbursed with regard to the entire decree debt from the assets of Sankara ~111a1. The first de'endant contended, on the other hand, that the d bt "' d f th ;:o. "fc'" n., 1 • 1 e as incurre 'or na purpose of ,,w:m:ra .i. l,J...,_ai n one, that Sankara Pillai had no liability in the watter, that the debt hn.d been discharged nnd hat the suit zas barred, ven the status of the plaintiffs as th~ legal representatives of Kumar PI!1ai mas questioned. 'The 1osr court held that the plaintiffs'are the representatives-in-interest of Kpara j ' i -·- IF Pill~i, that the debt was incurred for the benefit of both unara Pillai and Sankara Pillai and that both of them were liable to pay the decree debt in u. 3. 61,6 of 1109 in' equal halves. Hence the claim of the "plaintiff to r'calise one half of the decree debt was upheld., 2. 2.e oniy point pressed in t!is a;peal 5s that the diraction that the decree debt in 0.S. 616 of 1109 j I 1 3Ii is to be satisfiad by -0oth porties in equnl halves is not, poor. The other findings of th loe curt ave correct and cannot be questioned. Hcgc1:rdi.ngi: :::pporti'Jrnncnt, on behalf of the a0pellartt it was pointed out tn~t the prin- ciple lald down in section 2 of the 'iranscr or Property I5 t-i. ! Act has to be applied. saction 1s as followsl .......,, ig±a ihe relevant portion of the said t- i I :'· j ~ i "here pro.erty subject to a mortgage belongs to two or more persons having di.•stir>ct and separate rights of ovmership tricrein, the diff::;rent shares in or parts of such property owned ·by such persons are, in the absence of contract to the contrary, liable to corftribute rateably to the debt st.'.'cu.red by the mort- gage, and, for ttle purpose of detcru1ning the rate at which each such share or part shall contribute, the value thereof shall be deemed to be its value et the date of the mortgage after deduction of the amount of' any other mor'gs,e or charge to which it my have been subject on that date" Here no contract to the contrary is proved. 80 applying the aforesaid section the a ebt is to be a pno ,·t ionE':ltl · on the has1s of the value of the pronerties to each of the - hypothecators et the time of the hypothection. hough the trRnsRction in question was effected in Travancore area at a time wh:en the T:ransfer of P:ronerty Act was not in force there st1.ll it is clear that the prince1le of svction 82 is to be applied in vi0w of the decisions in the Travfincore HLh Curt. Thus in Varghese v,@uscph (28 T.1.J. 521) where a similar rust;on arose for consideration 1t was held that the pr:i.nciple laid dovm in sect:tor 32 is t,o he followad. At page 526 it is observed as follows: "Section 82 of the Transfer of Property /\ct gives only statutory effect to the well known z·ule state by lt'isher in his work on Mortgages, 6th Edition, page 688, in te following terms: \ \ i t r r "If several estates (whether of one or severfil owners) be mo-rt ~,gcd !or o:r sub.1 cct equally to the debt ••••• • the several estates shrll eontr1buto rnteabl:, to th• debt, bid.ng valued for thr,t nuri,ose, after deducting . ti-om, each estate any other incumbrances by which it 1s fo@ta. ''This rui~·•tosts -.p,:,n tho pri.nciple that the f'und, which is equally l1able fr with nothcr to py the debt, shall not·~gcnpe bcce1s~ tho creditor hes been ·paid out of h g other und glone, T h n y offcct o h _abov rle snd of soetion 22 of the rransfor ar vroporty Act klc?has given legislaive recognition to that rule 1s, that,· l'Jh(?.t"G one of _tbc mortgr.rcd c states bas. contr1bUt@C rr.or·'3 thao 1ts own quota of 1iabi.lity, tho owner of that estate 1s ont1tl to recovcr th.t edeess f!'om the otber-- estates subj•:·ct to thn i.Gortgago and acquires a charge on those estntns''. 'l'he svme principle has been 1nid do-wn in Kr1·onrw ::yei: J., ''On the analogy of the principle laid down in SP.Ct1on 82 of tht' r.nmafe:r of Pro)arty ;ct, the contribution which each pt' il? hve to make il? hve to be determined on its value or, th(,;i .,,,-,te of the mortgng-o. In the amend.-.... section 82, it is exprPssly stnted thnt tbc "'Jaluat!on , ot the pro :ertios for purpose::, of contribution should be made ns t date of mortauge", So in the present easo the lower court nas ro in directing both prties to contrt!go gully to the doer.cf:' dt.!bt without going into the question nf th vnle of the respective propGr-~ they hav no n1a 3 th ent1rc dc,cree t4eht. Jo apportion- ment of the docre debt satisiad by the parties is to be made cm. tho basis of· the vnlue of the prope:rti(:S of CumorR Pillai and Sankarri Pillai rnortgrg,d un1er ·,x.C on thnt dte. If any part or the decree debt hnd bf!en discharged by the defendants that also has- to ba, tsken into account. 3. In the res1itlt, tho lower court's decree is set .aside ns regards that point nd the case remanded for a proper - apportio.nm.ent in the light ot tho observ::-1tLms made above and for the passing of' a decroe,aceord1ng to law. The parties to be allowed to adduce any a'.iditional e11dence necessary tor '' tho said purpose, Both parties will bear their ow costs in this court. The court fea paid w:lU be refunded. 2..° Dy.Regi~tre tor Registrar. Sd.1:f.Varadarsja Iyengar, Judge. Sd.P.D.landana Kenon, Judge • (True copy> 14. 3. 1956. 6,- _j,s/.__f. •--a--e:::a.a.---t,O<f?&,: . "'i. . . i ;,\ ~ i < \ i j