RAJO KUER Vs. BRIJ BIHARI PRASAD

JUDGEMENT

(1.) This appeal by the plaintiffs arises out of a suit for contribution under section 82 of the Transfer of Property Act. One Madho Prasad Singh, husband of plaintiff No. 1 and father of plaintiff No. 2, executed three simple mortgage bonds in different years in respect of the same properties, which constituted the proprietary interest of the mortgagor in ten villages specified in Schedule A to the plaint. The bonds were executed on the 18th February, 1925, the 10th March, 1929 and the 14th December 1931 respectively for Rs. 8,000, Rs. 5,446 and Rs. 8,351, in all Rs. 21,797, in favour of Lakshmi Prasad Singh, Jagarnath Prasad Singh and Dhanukdhari Prasad Singh respectively. These mortgagees were members of a joint Mitakshara family. The mortgages were acquired on behalf of the family. On the 7th August 1936 the mortgagees instituted Mortgage Suit No. 23 of 1936 in the court of the Subordinate Judge at Arrah to enforce the three mortgage bonds; and on the 10th February, 1938, a preliminary decree was passed for a consolidated sum of Rs. 7,761/8/- besides costs and interest. The decree was made final on the 21st April 1939. In execution of the mortgage decree, the entire mortgaged property was sold and purchased by the decree-holders mortgagees on the 7th October 1939 for Rs. 38,165/3/5. In the meantime, Madho Prasad Singh preferred First Appeal No. 48 of 1939 in the High Court against the preliminary decree passed in the mortgage suit. This first appeal was allowed in part and thereafter Madho Prasad Singh filed an application under Section 144, Civil Procedure Code, in 1941 before the executing court for setting aside the auction sale. But the application was dismissed on the 10th June 1941. Madho Prasad Singh then went up in appeal to the High Court against this order of dismissal; and this appeal was disposed of in terms of compromise arrived at between the mortgagor and the mortgagees. In accordance with the terms of this compromise, on the 9th April 1943, Madho Prasad Singh deposited Rs. 38,165/3/9 in the court of the Subordinate Judge and the mortgage decree was satisfied. Madho Prasad Singh died on the 12th January 1945. In the meantime, defendants 1 to 5, who are members of a joint family with defendant No. 1 (Brij Bihar Prasad) as karta obtained an ex parte money decree in the Munsif's court at Gopalganj in the district of Saron against Madho Prasad Singh in Money Suit No. 26 of 1936, on the 16th July 1937 for Rs. 1,203/15/3; and in execution of this decree the decree-holders purchased on the 26th April 1938 item No. 5 of the mortgaged property and the sale was continued on the 26th May 1933.

(2.) The case of tho plaintiffs is that defendants 1 to 5 purchased the equity of redemption in item No. 5 of the mortgaged property and, therefore they are liable to contribute rateably towards the amount deposited by Madho Prasad Singh for satisfaction of the mortgage decree. But, as these defendants refused to make any contribution, this suit was instituted for recovery of Rs. 12,500 from them. There is a further prayer for recovery of Rs. 100 from defendants 6 to 8 and also a sum of Rs. 100 from defendants 1 to 16 as contribution in respect of items 6, 1 and 2 of the mortgaged properties.

(3.) A formal written statement was filed on behalf of minor defendants 11 to 16 by a pleader guardian-ad-litem. But there was no contest on their behalf at any stage. Of defendants 6 to 16, those who were majors, did not file any written statement. None of these defendants appeared in this Court either.