Sakkarama Rao vs Nagasami Rao and Others

Krishnaswami Nayudu, J.—The short point for determination in this appeal is as to whether the discharge of a mortgage by allowing the

property to be in possession of a co-mortgagee would amount to a payment to a Joint promisee. The plaintiff and the third defendant were co-

mortgagees of the suit property, the 2nd defendant being the mortgagors'' representative. It was found that the property was in the possession or

the third defendant for a period of five years, during which period the Income of the property was appropriated by the third defendant. It was

found by the Court below and in a previous proceeding that the Income of the property was more than sufficient for the discharge or the principal

and interest due on the mortgage. In view of the discharge of the mortgage being effected though not by payment not actually made by the

mortgagor but by allowing the co-mortgagee to be in possession of the property and to recover the income the lower Court found that it would

amount to a payment of the amount due under the mortgage to the co-mortgagee.

It is urged by Mr. Balchandrudu that what could discharge the mortgage is the actual payment to a co-mortgagee and not an arrangement under

which the co-mortgagee has to enjoy the property, with the income of which the mortgage might not be discharged. The mere fact that payment

has not been made in a lump sum and the payment in this case was obtained from and out of the income of the'' property, though spread for a

period of time, would not affect the nature of the payment, since it was in any event a payment to wards the mortgage, though not voluntarily paid

but appropriated from and out of the income of the property.

The decision in Barber Maran v. Ramana Gounden, ILR 20 Mad 461 followed In Ramaswami v. Kotayya, ILR 48 Mad 693: AIR 1925 Mad

161 goes to establish that in order that one of several Joint promisees could give a valid discharge of a debt so as to bind all the promisees, the

promisor must make an actual payment to him of the debt and that a mere undertaking to pay him the amount at some future date cannot deprive

the other promisees of their right to sue for the debt. There is no such undertaking here but, an actual payment, payment made out of the income of

the property to recover possession by the mortgagor, which would in law be sufficient to constitute a payment to the co-mortgagee. The view

taken, therefore, by the lower appellate Court that this is a payment, which would bind the plaintiff, is correct, and it does not require any

interference. These second appeals are dismissed with costs in S. A. No. 784 of 1954.

No leave.