RAMA SHANKAR PRASAD Vs. GHULAM HUSAIN

JUDGEMENT

(1.) This appeal arises out of a suit for contribution brought under the following circumstances. Sarju Prasad, the father of the plaintiff appellant, owned shares in eight villages, which he mortgaged on the 20 of April, 1893, to one Raghubans Shukul. Before this mortgage was executed he had mortgaged four out of the eight villages under three prior mortgages. Those prior mortgages were discharged by sale of two of the villages, namely Khargara and Banwarpara and a four anna share of Dudrajh. The two villages Baharia and Kargara were sold under a private sale to persons who are not parties to the present suit and the proceeds of the sale went to discharge the three prior mortgages. The court below has found in respect of these two villages that they had contributed more than their rateable share of liability for the three prior mortgages.

(2.) Of the mortgaged villages, Pakrizabti, Sukhrauli and two annas of the village Dudrajh were purchased at auction by the defendants in execution of a simple money decree. Both the courts below have held that this purchase was subject to the mortgage held by Raghubans Shukul. Raghubans Shukul obtained a decree on the basis of his mortgage of the 20 of April, 1893, and in execution of it he caused the village of Lohna, which remained in the hands of the plaintiff, after the death of his father Sarju Prasad, to be sold by auction and a sum of Rs. 4,114 was realized by that sale. As this amount was insufficient for the discharge of the mortgage held by Raghubans Shukul, he caused the two annas share in Dudrajh to be sold by auction, and the sale realized a sum which was sufficient to discharge the whole mortgage. There was a surplus left which was attached and obtained by other creditors. The plaintiff instituted the present suit for contribution on the allegation that his village Lohna had contributed more than its rateable share of liability under the mortgage in favour of Raghubans Shukul and that he was therefore entitled to recover the excess amount from the villages purchased by the defendants in execution of a simple money decree, to which we have referred, and subject to the mortgage in favour of Raghubans Shukul. The court of first instance dismissed the suit on the ground that the mortgagor could not maintain the suit for contribution against purchasers of the equity of redemption of a part of the mortgaged property. In support of this view the learned Judge of the court below referred to a decision of the Calcutta High Court in the case of Magniram V/s. Mehdi Hossein Khan (1903) I.L.R. 31 Calc. 95.

(3.) In our opinion that ruling has no application to the present case. The case of the plaintiff, we think, falls within the purview of Section 82 of the Transfer of Property Act, which provides that where property belonging to different owners is subject to a common mortgage the liability of each of the properties subject to the mortgage is proportionate to its value as compared with the value of all the properties mortgaged.