The Judgment of the Court was delivered by
Subrahmania Ayyar, J.:— The plaintiff held a simple mortgage from one Kanakammal upon her one-fourth share of certain lands which contained trees, she being a tenant in common with the defendant who was entitled to the remaining three-fourths. Pending the appeal in the suit instituted by the plaintiff for the recovery of the mortgage amount by the sale of the mortgaged interest, the defendant, who had also been impleaded in the suit, under section 85 of the Transfer of Property Act, as a person holding undivided possession with the mortgagor of the land which was the subject of the tenancy in common, cut down all the trees on the land and appropriated the same to himself. On the sale of the mortgagor's interest in the land, which took place after the removal of the trees, the plaintiff realized but a portion of the amount due to him under the decree passed in the said suit. The present action is for damages alleged to have been caused to the plaintiff by the defendant having appropriated to himself the mortgagor's share of the wood cut.
On behalf of the defendant it was contended before us that the plaintiff had no light of action against the defendant in respect of the wood in question.
Now undoubtedly from the time of lending his money, the mortgagee, whether he be in or out of possession, acquires the right to have the mortgaged property secured from deterioration in the hands of the mortgagor or of any other person to whose rights those of the mortgagee are superior (see Fisher on ‘Mortgage,’ Fourth Edition, page 293). Hence it has been held that the mortgagee is entitled to maintain an action for any act done, by the mortgagor or by his authority, essentially impairing the inheritance, such as cutting timber, tearing down houses, fixtures and the like although such fixtures may have been placed on the premises by the mortgagor after the making of the mortgage, and likewise against strangers whose wrongful act affects injuriously the mortgage security (see Washburn on ‘Real Property,’ Fifth Edition, Volume II, pages 139 and 140, and Frothingham v. McKusick(1), Searle v. Sewyer(2), Withen v. Moulton(3), and Goading v. Shea(4), cited in ‘American Digest,’ Century Edition, Volume 35, columns 1045, 1046 and 1047). The contention referred to is, therefore, untenable. I also hold that the suit was in time, as it was instituted within three years from the date when the defendant appropriated the wood to himself. It was conceded on both sides that the mere act of cutting down all the timber which stood on the common property did not, having regard to the rights inter se of the defendant on the one hand and his tenant in common, the mortgagor, and those claiming through her, on the other, constitute a wrong. It was the defendant's subsequent appropriation of the wood which ought to have been left for the share of the mortgagor that operated to the injury of the plaintiff. No doubt the case cannot he held to fall within article 48 of the second schedule to the Limitation Act as the District Judge decided, the plaintiff never having had a right to the possession of the wood. But he having been entitled to have the wood sold as part of his security, the taking of the wood by the defendant which interfered with such right of the plaintiff was one to which the next article 49 applies.
I would therefore dismiss the appeal with costs.
Davies, J.:— I concur.