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Krishna Aiyar vs Subba Reddiar And Ors. on 26 January, 1939 cites

Mamillapalli Kotappa And Ors. vs Pamidipati Raghavayya And Ors. on 8 October, 1926

It seems to me that the balance of authority is in favour of the view taken by the Bench which decided Kotappa v. Raghavayya (1926) 52 M.L.J. 532 : I.L.R. 50 Mad. 626 and I may be permitted to say with all respect that that is the view which commends itself to me as based on logic. It is not the law that limitation can never affect a plea used in defence. Certainly when the plea rests on a right which the defendant had no occasion to agitate until his position was attacked, limitation would not ordinarily affect his defence; but when his defence raises a plea of some inchoate or imperfect right, the establishment of which depended on a suit within a particular time, I see no reason why he should be allowed to urge that defence if the suit which has not been brought would, at the time when he urged the defence, have been time barred. That is the reasoning underlying the cases which prohibit the defendant from pleading a title based on part performance when a suit for specific performance of the contract relied upon would have been barred. Similarly in the case of subrogation, when a man has discharged an earlier mortgage with a view to protecting a later mortgage, there is no real justification for his being put into any better position than the person whom he discharged and there is no real justification for the intermediate mortgagee being put in any worse position than he would have been as against the original mortgagee. If a suit on the original mortgage is time barred, I see no reason why the person who claims subrogation should be allowed to urge a right higher than that of the mortgagee whom he has discharged, to the detriment of the intermediate mortgage.
Madras High Court Cites 7 - Cited by 16 - Full Document

Kavanoor Velayuda Reddi And Ors. vs Reddyvari Narasimha Reddy And Ors. on 11 September, 1916

As to the addition of other properties in the later mortgage and the substitution of a different rate of interest two cases have been cited Velayuda Reddi v. Narasimha Reddi (1916) 32 M.L.J. 263 and Gopal Chunder Sreemany v. Herembo Chunder Holdar (1889) I.L.R. 16 Cal. 523 as authority for the position that such variations do not affect the presumption which would be drawn in favour of the person who discharges the earlier encumbrance. I have not been referred to any case in which there was the added complication of the first mortgage being a mortgage by two persons covering properties other than those mortgaged to the person who claimed priority. But I cannot see that this factor should logically affect the position; for the right of subrogation arises out of the removal of a danger which threatened the hypotheca, which removal is to the benefit not only of the person who discharges the first mortgage, but also of any intermediate encumbrancer. The third defendant having discharged the decree which, though it was passed on a mortgage by two persons binding other properties than those in which the third defendant was interested, was in fact a danger to the hypotheca both under Ex. A and under Ex. III to the full amount of the decree, I see no reason why a person who discharges that decree should not get the benefit of the removal of the danger. The legal position seems to be clear. When a puisne encumbrancer discharges an earlier mortgage he is presumed to act for his own benefit, the presumption being applied whether he does or does not know of the existence of an intermediate mortgage benefited by his act which might possibly threaten his own security. The presumption is not affected by the addition of other properties in the final charge nor by variations in the rate of interest. It is not an irrebuttable presumption, but it is one which will be drawn unless there are in the evidence positive indications that no such intention could have been held. The only indication not covered by the authorities which I have quoted lies in the fact that at the time of Ex. III no enquiry appears to have been made regarding the amount of the mortgage Ex. I. I do not think that this affects the question. At the time of Ex. III the third defendant intended to pay a sum of Rs. 550 towards the discharge of the prior decree. In fact he paid a greater sum after he had found out the precise amount due. Surely he should be presumed to have the intention to act for his own benefit and to keep the earlier mortgage alive to the extent to which he had been required to pay money for its discharge. I therefore disagree with the lower Court as to the applicability of the presumption on the basis of which the third defendant would be entitled to subrogation.
Madras High Court Cites 5 - Cited by 7 - Full Document

A.R.M. Karappan Chettiar And Anr. vs Raja Kumara Venkata Perumal Raja ... on 27 February, 1928

It is pointed out that the decision on this question in Karuppan Chettiar v. Venkata Perumal A.I.R. 1929 Mad. 465 was based on an apparently subsidiary argument and was not the main reason for deciding the appeal. It cannot in my opinion be treated as an obiter dictum, but it must be noted, with all respect to the learned Judges who decided that case that the matter does not appear to have been discussed at great length.
Madras High Court Cites 9 - Cited by 1 - Full Document

Syed Mahomed Ibrahim Hossein Khan vs Ambika Pershad Singh on 16 January, 1912

The Privy Council in Mahomed Ibrahim Hossein Khan v. Ambika Pershad Singh (1912) 22 M.L.J. 468 : L.R. 39 I.A. 68 : I.L.R. 39 Cal. 527 (P.C.) held that when a right of subrogation is claimed by a plaintiff in a mortgage suit on a puisne mortgage, it could not be upheld when the prior mortgage which had been discharged was barred at the time of the suit. There is, so far as I am aware, no decision of the Privy Council to the effect that a defendant cannot claim priority on the basis of the time-barred mortgage suit, but there are conflicting decisions of this Court.
Bombay High Court Cites 5 - Cited by 75 - Full Document

Gopal Chunder Sreemany vs Herembo Chunder Holder And Ors. on 18 March, 1889

As to the addition of other properties in the later mortgage and the substitution of a different rate of interest two cases have been cited Velayuda Reddi v. Narasimha Reddi (1916) 32 M.L.J. 263 and Gopal Chunder Sreemany v. Herembo Chunder Holdar (1889) I.L.R. 16 Cal. 523 as authority for the position that such variations do not affect the presumption which would be drawn in favour of the person who discharges the earlier encumbrance. I have not been referred to any case in which there was the added complication of the first mortgage being a mortgage by two persons covering properties other than those mortgaged to the person who claimed priority. But I cannot see that this factor should logically affect the position; for the right of subrogation arises out of the removal of a danger which threatened the hypotheca, which removal is to the benefit not only of the person who discharges the first mortgage, but also of any intermediate encumbrancer. The third defendant having discharged the decree which, though it was passed on a mortgage by two persons binding other properties than those in which the third defendant was interested, was in fact a danger to the hypotheca both under Ex. A and under Ex. III to the full amount of the decree, I see no reason why a person who discharges that decree should not get the benefit of the removal of the danger. The legal position seems to be clear. When a puisne encumbrancer discharges an earlier mortgage he is presumed to act for his own benefit, the presumption being applied whether he does or does not know of the existence of an intermediate mortgage benefited by his act which might possibly threaten his own security. The presumption is not affected by the addition of other properties in the final charge nor by variations in the rate of interest. It is not an irrebuttable presumption, but it is one which will be drawn unless there are in the evidence positive indications that no such intention could have been held. The only indication not covered by the authorities which I have quoted lies in the fact that at the time of Ex. III no enquiry appears to have been made regarding the amount of the mortgage Ex. I. I do not think that this affects the question. At the time of Ex. III the third defendant intended to pay a sum of Rs. 550 towards the discharge of the prior decree. In fact he paid a greater sum after he had found out the precise amount due. Surely he should be presumed to have the intention to act for his own benefit and to keep the earlier mortgage alive to the extent to which he had been required to pay money for its discharge. I therefore disagree with the lower Court as to the applicability of the presumption on the basis of which the third defendant would be entitled to subrogation.
Calcutta High Court Cites 1 - Cited by 7 - Full Document

Andi Thevan vs Nagayasami Chettiar And Anr. on 2 December, 1927

517 and Andi Thevan v. Nagayasami Chettiar (1927) 55 M.L.J. 369, that ignorance of the existence of an intermediate mortgage is no' ground for refusing to draw in favour of the person who discharges the first encumbrance the presumption that he intended to act for his own benefit and keep alive the original mortgage as a shield against any danger which might threaten his puisne mortgage.
Madras High Court Cites 0 - Cited by 3 - Full Document
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