In order to appreciate the point of law involved in this Letters Patent Appeal the facts must be stated fully.

On the 27th November, 1925, defendants 1 to 6, members of a joint family, mortgaged certain immoveable properties to the plaintiff to secure a sum of Rs. 7,000. The properties covered by the mortgage comprised a rice godown in Madras and agricultural lands in a village in the Chingleput district. Under a separate deed executed on the same date other properties belonging to the family were mortgaged to the plaintiff to secure a sum of Rs. 11,000. We will refer to the mortgage for Rs. 7,000 as “mortgage A” and the mortgage for Rs. 11,000 as “mortgage B.” On the 7th May, 1933, there was due under mortgage A the sum of Rs. 5,596-4-0. On that date the mortgagors conveyed to the mortgagee the agricultural lands comprised in mortgage A for Rs, 7,000, which was satisfied to the extent of Rs. 6,446 by partial discharge of both the mortgages.

Before the 7th May, 1933, the eighth defendant had obtained a charge over the lands comprised in mortgage A. The charge was given to him by a decree which he obtained on the 25th July, 1932, and by virtue of it he was in the position of a puisne mortgagee. When he agreed to buy the lands covered by mortgage A for Rs. 7,000, the plaintiff was not aware of the eighth defendant’s charge. In the deed of conveyance the mortgagors declared that the lands were not subject to any other charge and agreed that if a dispute arose they would indemnify the purchaser. It was stipulated that the mortgage A and mortgage B should be kept alive as security as well as a shield in case of dispute.

In 1939 the eighth defendant decided to enforce the charge which he held over the lands subject to mortgage A and obtained from the Court an order for sale. The sale took place on the 5th July, 1939. He purchased the greater part of the properties and obtained possession from the plaintiff. His purchase was, of course, subject to mortgage A.

On the 10th October, 1939, the plaintiff instituted in the Court of the Subordinate Judge of Chingleput the present action to enforce mortgage A by the sale of the properties purchased by the eighth defendant. On this date there was, according to the plaint due to him the sum of Rs. 5,170-10-0, after giving credit for Rs. 1,000 which he estimated to be the value of the mortgaged properties of which he was in possession. The plaintiff did not ask for a decree for Rs. 5,170-10-0, but one for Rs. 4,500, on the ground that the properties in respect of which relief was sought had gone down in value. The Subordinate Judge gave the plaintiff a decree for Rs. 1,437-4-7 including interest and costs. It is common ground that the Subordinate Judge made errors in calculation and that his decree could not in any event stand.

The plaintiff appealed to the District Judge who passed a decree for Rs. 5,759-7-0, including interest and costs. It was accepted in the District Court that the value of the properties bought by the plaintiff under the conveyance of the 7th May, 1933, and of which he was in possession at the time of the institution of the suit was Rs. 3,087-12-0. We have already mentioned that the amount due on the mortgage on the date of the conveyance was Rs. 5,596-4-0. The basis of the decree passed by the District Judge was this. He took the value of the property in the plaintiff’s possession and of the property in the eighth defendant’s possession. The property in the eighth defendant’s possession was valued at Rs. 5,764-12-0. The plaintiff was entitled to contribution based on the value of the property in the possession of the eighth defendant. The total value of the properties was Rs. 8,852-8-0 and the eighth defendant had to contribute so much of this sum as was proportionate to the value of the property in his possession.

During the pendency of the plaintiff’s appeal to the District Court the eighth defendant died. His legal representative, the 14th respondent in th