DIN DAYAL Vs. GURSARAN LAL

JUDGEMENT

(1.) This appeal has arisen out of a suit for contribution brought by Nanak Pershad, plaintiff, in whose place the present respondents have been substituted as his legal representatives, against Din Dayal, defendant appellant. In order to understand the contentions raised by the parties, it is necessary to set out, in some detail, the facts which are either found or admitted by the parties.

(2.) A list of seven houses is attached to the plaint. One Ganga Pershad is stated to have been the owner of these houses. On the 16th of August 1903 the said Ganga Pershad contracted to sell house No. 1 to one Gurdayal, brother of the defendant-appellant, for Rs. 80, out of which Rs. 40 was paid in advance at once. On 20th of April 1905, he mortgaged the house No. 1 along with the six other houses to one Kallumal for Rs. 600. On the 16th August 190(sic) he executed a second mortgage for Rs. 400 in favour of the same Kallumal, mortgaging the same houses. On the 5th of January 1907 Gurdayal sued for the specific performance of the contract of sale of 1903, and obtained a decree on the 5th of February 1907. On the 24th of April 1907, a sale-deed was executed, in pursuance of the decree, in favour of Gurdayal, with respect to the house No. 1 and possession was delivered to him. On the same date, Gurdayal sold the house to his brother Dindayal and gave possession to him. On the 10th of January 1910, Nanak Pershad, the plaintiff, obtained a simple money decree against Ganga Pershad for the sum of Rs. 166 and, in execution of this decree, he attached the houses Nos. 2 and 3, and applied for their sale. Kallumal, the mortgagee, applied to the Court executing the decree, praying that the houses may be sold subject to his charge under the mortgages in his favour, and that a proclamation may be made to that effect. This application was allowed and the houses Nos. 2 and 3 were sold and purchased by Nanak Pershad on the 12th of June 1911 subject to the mortgage charge of Kallumal. The sale was confirmed on the 14th of July 1911. On the 6th of June, Ganga Pershad had applied to the Insolvency Court at Cawnpore to be declared an insolvent, mentioning the name of Nanak Pershad in the list of the creditors given in his application. On the 22nd of July an order of adjudication was made. On the same date, on the application of Kallumal, mortgagee, the Insolvency Court ordered the houses Nos. 2 and 3 to be sold by the Receiver to discharge his mortgage. On the 25th of July Nanak Pershad put in an application in the Insolvency Court objecting to the sale of the houses by the Receiver on the ground that they had been purchased by him before the order of adjudication and that they had not vested in the Receiver. The only order made by the Insolvency Court on this petition was "shamil misil rahe" (Let it be placed on the record). On the 29th of July 1911, the Receiver applied to the Insolvency Court for an injunction prohibiting Nanak Pershad from taking possession of houses Nos. 2 and 3, and an order was made accordingly. On the 3rd of August 1911, Nanak Pershad applied to have the injunction set aside, stating that he was the owner of the houses, and that he was not a creditor of the insolvent. This application was rejected and the reason for its rejection was stated by the Court that, he had not purchased the houses free from incumbrance. On the 14th of December, however, Nanak Pershad was required to pay off the mortgage of Kallumal by the end of January 1912. The houses were subsequently sold by the Receiver on the 25th of July 1912 for the sum of Rs. 1,875. Out of this sum Rs. 1,629-10 3 were paid to Kallumal in satisfaction of his two mortgages, on the 1st of August 1912. The balance of Rs. 245 5 9, after deducting the Receiver s fee, was handed over to Nanak Pershad. On these facts the plaintiff sued to recover Rs. 1795.3 with interest from the 1st of August 1912, total Rs. 292 6.3, by way of contribution from the defendant as the purchaser of the house No. 1. There was some dispute as to the valuation of the house No. 1, and as to the proportionate amount claimable in respect of it, but this was settled by mutual agreement which was recorded in a rubkar dated the 1st of July 1915, which is to be found on the record as paper No. 32C. The defendant contested the suit mainly on the following grounds:

(3.) That the house No. 1 had been purchased on the 24th of April 1907 in pursuance of the contract of sale of 1903, and that, as there was no mortgage existing at the date of the contract and that also as Gurdayal, the vendee, had no notice on the 24th of April 1907 of the mortgagee of the 24th of April 1905 and the 16th of August 1906, the charge created under those mortgage s was not binding on him and that no contribution could be claimed against him. Some other minor pleas were also raised in the written statement but, as those were decided against the defendant by the Courts below and as to which there is no further contention, it is not necessary to mention them here. There is, however, one plea, which, though not taken in the written statement, appears to have been urged in the Court below and is also urged in this Court. Shortly put, the plea comes to this, "that the mortgages of Kallumal were not redeemed by the plaintiff but were paid off by the sale of the houses Nos. 2 and 3 by the Receiver; therefore, the plaintiff had no right to claim contribution.