SASTHI KINKAR BANERJEE Vs. PANCHANAN DAS

JUDGEMENT

(1.) This appeal which raises an interesting question as to the interpretation of Section 82, Transfer of Property Act, has been brought by the Defendant against concurrent decrees made against him in a suit for contribution under Section 82, Transfer of Property Act. The facts which are undisputed are as follows:

(2.) It is the legality of the aforesaid principle that is challenged before us on the ground that it is not warranted by Section 82, Transfer of Property Act.

(3.) After hearing learned advocates on both sides it seems to me that the first question that arises for consideration in this appeal is: what is the point of time at which the liability of the different mortgaged properties to contribute to the debt secured by the mortgage arises? Does it arise on the date on which a redeeming co-mortgagor pays more than the proportionate share of his liability or on the date of the execution of the mortgage or the date when the ownership of the different lots passes to different persons? The language of Section 82 indicates that the liability to contribute arises as soon as the ownership of the mortgaged property passes to different individuals. The property which is subject to. mortgage may belong to different persons at the date of the mortgage and the different co-owners may join in executing the mortgage or the property which was at the date of the mortgage under the ownership of a single individual may come to be owned by different persons by succession, partition and assignment. In the former case the liability to contribute attaches to the different shares from the very date of the mortgage and in the latter case the liability attaches on the date of succession, partition and assignment. This liability becomes enforceable under the law whenever a co-owner has paid more than his proportionate share of the liability. It is in my opinion, a mistake to suppose that the liability to contribute arises only when a co-owner has paid more than his share. The liability is already there and it can be enforced only when one co-sharer has paid more than his proportionate share of the debt secured by the mortgage. On the happening of that contingency the liability of the different mortgaged properties held under different ownership has to be worked out by reference to the point of time when the ownership of the different items of mortgaged property passed to different individuals.