Mutturaman Chettiar Et Al. V. Kumarappa Chettiar Et Al.,

1942 Present: Howard C.J. and de Kretser J.

MUTTURAMAN CHETTIAR et al. v. .KUMARAPPA
CHETTIAR et al.

14-D. C. Kurunegala, No. 17,309.

Mortgage-Money lent by three persons-Purchase of property by two most- gagees-Action on the bond by the third-Right of purchasers to claim concurrence-Merger-Roman-Dutch Law.

Plaintiff and the second and third defendants lent the first defendant the sum of Rs. 27,500 on a mortgage bond, plaintiff contributing _s, 10,000 and the second and third defendants Rs, 17,500. The bond, which authorized the obligees to sue jointly or severally for the amounts due to them, contained the following clause: "And it is further agreed that, in the event of the said security being realised and the proceeds of such realisation not being sufficient to satisfy the clail1ls in full of the said obligees and their respective before written, they shall be entitled to claim pro' rata only on. such proceeds but nothing herein contained shall prevent the said obligees, respectively, from securing the whole of any balance of their respective claims from him, the said obligor or his

aforewritten." The first defendant's rights in the property mortgaged were sold by the Fiscal under a money decree and purchased by the second and third defendants. Plaintiff brought the present action to recover a sum of Rs. 15,125 due to him on the bond and prayed for a mortgage decree.

Held, that the second and third defendants were entitled to concurrence and, in case of deficiency, to share rateably in the proceeds to be obtained when the security was realized.

Purchase of mortgaged property by the mortgagee extinguishes the debt by merger only when the persons claiming the rights of ownership and mortgage are identical and their rights are co-extensive.

APPEAL from a judgment of the District Judge of Kurunegala.

H. V. Perera, k C., and N. Nadarajah, K.C. (with them B. G. S. David), for second and third defendants, appellants.

N. E. Weerasooria, K .C. (with him L. A. Rajapakse), for plaintiff, respondent.

Cur. adv. vult.

July 22, 1942. DE KRETSER J.-

Plaintiff and the second and third defendants lent the first defendant the sum of Its. 27,500 on a mortgage bond, plaintiff contributing Rs. 10,000 and the second and third defendants Rs. 17,500. The bond authorized the obligees to sue jointly or separately for the amounts due to them, respectively, and then came the following clause -" And it is further agreed that, in the event of the said security being realized and the proceeds of such realisation not being sufficient to satisfy the claims in full of the said obligees and their respective aforewritten, they shall be entitled to claim pro rata only on such proceeds but nothing herein contained shall prevent the said obligees, respectively, or their respective aforewritten from recovering the whole of any balance of their respective claims from him, the said obligor or his aforewritten

The first defendant's rights in the property mortgaged were sold by the fiscal under a money decree and purchased by the second and third defendant Plaintiff brings this action setting out the details of the bond and alleging that a sum of Rs. 15,125 was due to him and praying for a mortgage decree accordingly.

The second and third defendants claim concurrence and, in case of deficiency, to share rateably in the proceeds to be obtained when the security is realised. Admittedly they have not been paid, what they lent. Plaintiff denies their right to claim concurrence.

The relevant issues were-

(3) Are the second and third defendants entitled to concurrence with the plaintiffs in the event of a judicial sale of the mortgaged properties ?

(4) Do the rights of the second and third defendants on the bond sued upon revive on a judicial sale?

(5) Can the second and third defendants claim concurrence or a revival of their rights on the mortgag

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