SRIMATI RAJ KAMINI DEBI Vs. MUKANDA LAL BANDAPADHYA

JUDGEMENT

(1.) This appeal arises out of a suit for contribution under the following circumstances: Three brothers Chandra, Gopi and Surja were the owners of an estate comprising two properties, which may conveniently be referred to as the Dacea property and the Dewali property. They mortgaged the properties in 1885. One of the brothers, Chandra, in September 1886 by his Will bequeathed his one-third share of the Dacca property to his daughter Raj Kamini, the defendant No. 1. In September 1891 the three brothers executed a mortgage in favour of Harendra for Rs. 4,000 and odd, out of which the previous mortgage (of 1885) was paid off. Chandra then died, and his Will was proved and Probate granted. In 1903 the mortgagee Harendra brought a suit upon his mortgage against the plaintiff, the defendant No. 2 Surja, and defendants Nos. 3 and 4 who are the representatives of the other brothers. The defendant No. 1, who had obtained the one-third share in the Dacca property under the Will of her father, was not made a party to the suit. It appears that the plaintiff and the defendants paid a sum of Rs. 3,019 to the mortgagee before the suit was brought upon the mortgage, and the mortgagee brought his suit after giving credit for the said sum. A preliminary decree was passed in the mortgage suit on 23rd June 1903. On the 22nd February 1904 the plaintiff and the defendants Nos. 2 to 4 paid another sum of Rs. 3,000 to the mortgagee, and on the 9th May 1908 order absolute for sale of the mortgaged properties was passed. An one-third share of the Dewali property (belonging to the defendant No. 2) was then sold in execution of a money decree and was purchased for Rs. 744 by the mortgagee, which was credited by him in part satisfaction of his decree. The mortgagee accordingly put up the whole of the Dacca property and two-thirds of the Dewali property to sale, and to prevent the sale, the plaintiff and defendant No. 4 on the 23rd March 1909 deposited in Court Rs. 3,018 and odd: and the decree was accordingly satisfied.

(2.) The present suit was instituted on the 7th October 1915 by the plaintiff to recover the sum paid by him in excess of his share which was payable by the defendant No. 1 proportionately to her share in the Dacca property. The Court of first instance held that the claim in respect of the first payment (Rs. 3,019) was barred by limitation, but that plaintiff was entitled to contribution in respect of the last two payments and being of opinion that Article 132 of the limitation Act was applicable, decreed the claim in respect of the same (the payments having been made within 12 years of the suit) together with interest thereon at 12 per cent. On appeal that decree was varied only by reducing the interest to 7? per cent. The defendant No. 1 has appealed to this Court.

(3.) Three contentions have been raised in this appeal: the first is that the payments were voluntary, secondly, that the plaintiff did not acquire any charge over the share of the defendant No. 1 and thirdly, that the suit was barred by limitation.