Ramaswami Gounder, J.-This second appeal is posted before this Bench on an order of reference made by one of us (Govinda Menon, J.), and which runs thus:

"The decision in Krishna Iyer v. Surai Reddiar1, on which the Lower Appellate Court relies runs somewhat counter to another Bench decision in Arunagiri Mudaliar v. Radhakrishna Ayyar2, as well as the decision in Shan Ram Chard v. Pandit Prabhu Dayal3 . Post before a Bench.

The facts giving rise to this appeal may be briefly stated. The mulgeni right in the plaint-schedule properties belonged to one Subbu Punjathi by purchase in April 1908. A few months later, in August, 1908, the mull right in the properties was purchased by her and her son, Ramayya Punja. Subbu Punjathi had a daughter who is the present plaintiff. In January, 1936, Subbu Punjathi and her son, Ramayya Punja, executed a mortgage in favour of the plaintiff for a sum of Rs. 2,000. It must be borne in mind that Subbu Punjathi owned the entirety of the mulgeni right and half of muli right in the suit properties, and her son, Ramayya Punja, was entitled to a moiety only in the muli right; and the entire rights of both were mortgaged to the plaintiff. ‘In March, 1941, and under document Exhibit A-5, the mother, Subbu Punjathi, transferred all her rights in favour of the plaintiff herself for Rs. 1,500 made up of Rs. 1,289 being the mother’s half share of the mortgage liability, and the balance of Rs. 211 paid in cash Thus, the plaintiff who held the mortgage rights in respect of the entire rights also became the proprietor by purchase from her mother, of the latter’s mulgeni right and half mull right. As regards the moiety of muli right which the son, Ramayya Punja owned a creditor of his namely the defendant who had obtained a decree in S.C.S. No. 4 of 1945 brought that right to sale, subject to the undischarged moiety of the mortgage amount, and purchased it himself. Thus, the defendant became entitled to half of muli right. While so, the plaintiff as the mortgagee commenced the present action, out of which this second appeal arose, to recover the moiety of the mortgage amount yet remaining due on her mortgage by the sale of half the muli right purchased by the defendant, leaving out the mulgeni right and the other half of the muli right purchased by herself from her mother. Among other contentions the defendant put forward the contention that he was liable to pay only a proportionate amount of the debt, and not the entirety of the balance remaining due on the mortgage. His contention was, of course, based on the last paragraph of section 60 of the Transfer of Property Act, namely, that in as much as the mortgagee herself had purchased the interest of the co-mortgagor, the mortgagee cannot throw on the remaining properties the entire burden of the mortgage amount remaining due, but that the plaintiff as the mortgagee would be entitled to a decree only for such amount as the defendant would be liable to contribute under section 82 of the Transfer of Property Act in respect of Ramayya Punja’s half share in the muli right.

It is admitted that the mulgeni rent payable to the owner of the muli right was 24 muras of rice and Rs. 10-10-0 in cash. According to the evidence of the defendant examined as D.W.1, the total income of the suit properties would be 40 muras of rice whereas P.W.1, the son-in-law of the plaintiff, would put it at 37 muras. But he spoke to 70 kattas of jaggery in addition and also the possibility of two crops in good years. We may therefore accept 40 muras of rice as the total income of the suit properties, as representing the annual value of the properties. Of that income, Ramayya Punja’s half share of muli right would be 12 muras of rice, so that, 28 muras would represent the interest of the mother, Subbu Punjathi. In other words, if contribution is levied under section 82 in respect of the interest owned by the two mortgagors, it must be in the proportion of 28: 12, and the defendant’s contention, t

Click Here to Read the rest of this document