SHEIKH GHULAM HAZRAT Vs. GOBARDHAN DAS

JUDGEMENT

(1.) This appeal arises out of a suit for contribution brought by the plaintiffs- appellants under the following circumstances: Muhammad Amin, the seventh defendant, mortgaged on the 28th of October, 1895, the northern mahal of the village Daranagar without any reservation to one Gulzari Lal. On the 27th of April, 1896, he mortgaged to the same mortgagee all his rights and interests in the northern mahal and a 2 1/2 biswas share in the southern mahal together with its appurtenances. Gulzari Lal brought a suit for sale on both mortgages and obtained a decree on the 17th of April, 1905. The total amount decreed to him was Rs. 8,732-14-0. He assigned the decree to one Kamla Dat, who took out execution of it and caused the Mortgaged property to be advertised for sale. On the 11th of September, 1907, Muhammad Amin made a usufructuary mortgage of his share in the northern mahal excluding the miscellaneous property appurtenant to that mahal in favour of the plaintiffs. The amount of the mortgage was Rs. 4,000, and it was agreed that this sum; should be applied to part satisfaction of the decree of the 17th of April, 1905. The amount was paid, but as a further sum still remained due under the decree, the plaintiffs paid into Court Rs. 6,760-14-0, on the 18th of September, 1907, and thus averted the auction sale which had been fixed for the 21st of that month. The defendants Nos. 1-6 are purchasers of the southern mahal in execution of a money-decree. The sale in their favour took place in 1902. The plaintiffs claimed contribution from them in respect? of the southern mahal purchased by them and from the mortgagor Muhammad Amin in respect of the miscellaneous property which was not mortgaged to the plaintiffs.

(2.) The Court below has excluded from consideration the sum of Rs. 4,000 which was the amount for which the mortgage in plaintiff s favour was made. In so doing we think it was right. That amount was pay able to the mortgagor and the payment of it must be deemed to be payment by the mortgagor himself. As to the remainder of the amount paid by the plaintiffs we fail to understand the method pursued by that Court in ordering contribution. The decree which was passed in favour of Gulzari Lal was, no doubt, a decree for recovery of Rs. 8,730-14-0 from the mortgaged property but it is urged on behalf of the appellants that the decree must be deemed to be a decree for sale of the property mortgaged under the first mortgage for realisation of the amount, due under that mortgage and of the remainder of the property for realisation of the amount of the second mortgage. On the other hand, Mr. O Conor, for the respondents, contends that the decree directed the realisation of the total amount decreed from all the property comprised in the two mortgages. We are unable to agree with Mr. O Conor s contention. In the prayer in the plaint of Gulzari Lal what he asked for was that the 6 1/4 biswas share in the northern mahal should be first sold by auction and out of the sale-proceeds the amount of the first mortgage should be satisfied and that the remainder of the mortgaged property, namely, the southern mahal, should then be sold for the realisation of the amount due under the second mortgage of 1896. It is this prayer of the plaint which was granted by the Court. There is nothing to show that the Court intended to award to the then plaintiff anything more than what he had asked for. In the decree it is provided that upon payment not being made on of before the date fixed, the mortgaged property or a sufficient part thereof will be sold, and in the specification of the mortgaged property reference is made to the relief asked for in the plaint. This reference clearly indicates that the Court awarded to the plaintiff what he had prayed for and no more, that is to say, it directed that the property comprised in the first mortgage should be sold for the realisation of the amount due upon that mortgage and the property mentioned in the second mortgage should be sold for the realisation of the amount payable under that mortgage. The decree contains a specification of the amounts severally due under the two mortgages. We think that in this respect the contention put forward on behalf of the appellants is correct.

(3.) This being so, it is urged; that the Court below ought to have declared the amounts for which the respective properties were liable after taking into consideration the value of the property comprised in the first mortgage and the amounts due under that mortgage. Reliance is placed on Section 82 of the Transfer of Property Act. The second paragraph of this section provides that where of two properties belonging to the same owner one is mortgaged to secure one debt and then both are mortgaged to secure another debt, and the former debt is paid out of the former property, each property is, in the absence of a contract to the contrary, liable to contribute rateably to the latter debt after deducting the amount of the former debt from the value of the property out of which it has been paid." The value of the northern mahal including miscellaneous property appertaining thereto has been found by the Court below to be Rs. 3,636. The amount due under the decree of Gulzari Lal on account of the first mortgage of 1895 was Rs. 3,844 80. Therefore, when, for the purpose of apportioning the liability of the respective properties in regard to the subsequent mortgage, the value of the two properties is taken into account, credit must be given for the amount due upon the earlier mortgage out of the value of the property comprised in the subsequent mortgage. In this case the amount due upon the earlier mortgage exceeded the value of the property comprised in that mortgage. The necessary result is that the whole of the amount of the second mortgage was recoverable from the other property comprised in the mortgage, viz. the 2 1/2 biswas of the southern mahal and its appurtenances. The defendants-respondents who are now the owners of the southern mahal, are, therefore, liable to the plaintiff for the amount which the plaintiff paid for saving that mahal from sale in execution of the decree obtained by Gulzari Lal, and the plaintiffs are entitled to recover the amount paid by them, viz., Rs. 5,760-14-0 with interest thereon from the defendants and their property.