VITHALDAS BHAGVANDAS DARBAR Vs. TUKARAM VITHOBA KSHATRI

JUDGEMENT

(1.) THIS is an appeal by the plaintiff from a decree of the District Judge of Bijapur confirming a decree of the Joint Subordinate Judge of Bijapur, who dismissed a suit brought by the plaintiff for reimbursement or contribution.

(2.) THE plaintiff's claim was put forward in the following circumstances. One Ramappa who was the father of defendant No.1 was the owner of four fields, survey Nos. 5/2, 381, 382 and 124. In October-November, 1927, Ramappa borrowed Rs. 1,000 from Government under the Land Improvement Loans Act for the improvement of survey No.5/2. By virtue of Section 7 of the Act Government therefore has the right to recover the money with interest from the borrower personally, or out of the land for the benefit of which the loan was granted, or out of properties given as collateral security that is in the present case survey Nos. 381, 382 and 124. It is provided in the same section that it is in the discretion of the Collector to determine the order in which he will resort to the various modes of recovering the moneys which are recoverable as if they were arrears of land-revenue. On November 26, 1929, Ramappa mortgaged survey Nos, 381 and 382 to defendant No.3. On January 25, 1932, he sold survey Nos. 5/2 and 124 to the plaintiff. THE consideration for the sale was Rs, 5,000, and the sale deed (exhibit 28) provided that out of this sum Rs. 1,000 was to be kept with the purchaser (plaintiff) for discharging the tagai debt. Prior to this in 1930 defendant No.2 had obtained a money decree against Ramappa and he attached survey No.5/2 four days before the plaintiff's purchase. Subsequently on February 4, 1933, defendant No.2 purchased that survey number in execution proceedings. THE tagai debt due to Government was paid off by the plaintiff in three instalments--one of Rs. 150 paid on May 27, 1932, one of Rs. 150 paid on March 18, 1933, and the final instalment of Rs. 600 paid on November 13, 1934. On March 23, 1933, the plaintiff brought a suit against defendant No.2 to recover possession of survey No.5/2, but the suit failed because it was held that defendant No.2 had a prior claim in view of the fact that he had attached the land before the sale of it to the plaintiff. THE suit in which the present appeal arises was filed by the plaintiff in June, 1935. He claimed to have a charge on survey Nos. 5/2, 381, and 382 and to be entitled to recover the amount paid by him to Government from defendants Nos. 1, 2 and3. As I have mentioned, the plaintiff failed in both the lower Courts. He there relied partly on Section 92 of the Transfer of Property Act and partly on Section 69 of the Indian Contract Act.

(3.) THERE are however obvious difficulties in the way of the application of Section 92 to this case. In the first place there was in fact no mortgage to Government. THERE was a statutory charge in favour of Government in respect of survey No.5/2 and also the three fields given as collateral security. But it was not a mortgage. Assuming however that that difficulty could be got over; it has been held, by a Full Bench of the Allahabad High Court in Hira Singh v. Jai Singh [1937] All. 880, that where part of the consideration for sale of land is retained by the purchaser for the discharge of incumbrances on the land that money is to be regarded as the money, of the vendor, and therefore the purchaser is not entitled to subrogation under the first paragraph of Section 92. He may or may not come under the third paragraph, but in the present case it is clear that the plaintiff cannot come under the third paragraph because there is no registered agreement giving him the right of subrogation. The sarnie view of the construction of Section 92 has been taken by a full bench of the Madras High Court in Lakshmi Amma v. Sankara Narayana Menon (1935) I.L.R. 59 Mad. 359, F.B.