1932 Present: Garvin S.P.J. and Akbar J.

DIAS et al. v. SILVA.

57-D. C. Kalutara, 15,156.

Contribution among co-debtors-Discharge of mortgage by one-Impensautiles-No real charge on property-Remedy of co-debtor.

Where one of the several co-debtors of a debt, secured by a mortgage, has discharged the debt, the property does not become burdened with a real charge in favour of the debtor who has paid the debt, for a proportionate share of the contribution due from the others.

APPEAL from a judgment of the District Judge of Kalutara.

N. E. Weerasooria (with him Amaresekere), for appellant.

H. V. Perera (with him Rajapakse), for respondent.

March 10,1932. GARVIN S.P.J.-

The facts material to this appeal are these. One Clementina de Silva was the owner of four distinct allotments of land. She died intestate leaving her surviving her husband Cornells and three children, Harriet, Vincent, and Grace. Harriet and Vincent joined their father Cornells in

executing a conveyance of all their interests in favour of Grace in two of these allotments. Prior to the execution of this conveyance two mortgages had been executed in the year 1919; by the first three of these allotments and by the second the fourth allotment were charged with mortgages in favour of one Mr. Seneviratne and a Mrs. de Livera respectively. Grace died in July, 1920, and her interests, in the two allotments, which belonged exclusively to her by reason of the transfer earlier referred to, devolved as to a half on her surviving husband the first defendant, and as to the remaining half on her other intestate heirs. On May 7, 1923, a hypothecary decree was entered in favour of Seneviratne in respect of the mortgage in his favour. To satisfy this decree and the outstanding debt on the mortgage of Mrs. de Livera, a further mortgage was executed on August 21, 1920, over all the four allotments of land, hereinbefore referred to, by Cornelis Vincent, and Harriet in favour of one Perera and the same parties on August 9, 1923, executed a second mortgage charging the same premises also in favour of Perera. Both these bonds were put in suit. Decree was obtained by Perera and the sale of the premises was fixed when the plaintiff Harriet paid the whole debt and thereby satisfied the hypothecary decree entered in the case.

The present action was brought by Harriet against the first defendant and also as against the second defendant, who, subsequent to the payment above referred to, purchased from first defendant a half share of the two allotments which once belonged to Grace. The learned District Judge gave judgment for the plaintiff as against the first defendant but he has dismissed the action so far as it related to second defendant.

Upon this appeal it was argued that the second defendant was liable to pay the debt, and further that the premises purchased by him from the first defendant were charged with a liability to pay a proportionate part of the amount which the plaintiff had expended in the payment and discharge of the hypothecary decree which bound the premises.

It is, of course, sound law that one of several co-debtors may pay a debt jointly due by them and obtained cession of action from the creditor. The action on these bonds proceeded to the stage of judgment and decree and the effect of the payment made by the plaintiff was to discharge the liabilities arising from the judgment. Nevertheless, the position of the plaintiff is at least as good as that of one of a number of debtors who has paid without demanding a cession of action. Such a person is not debarred from claiming in his own right from each of his co-debtors a share of the debt for which each is liable. (See Sande's Cession of Action; Sande's translations pp. 123 and 124). On this basis alone plaintiff's claim as against the first defendant for contribution is well founded, but this principle is insufficient to entitle the plai