UMAR ALI Vs. ASMAT ALI

JUDGEMENT

(1.) In this case, one Abdul Rahaman granted a mortgage of three plots of land to one Golam All in 1903. Defendants 2 to 7 in the present suit together with one Abdul Hashim, predecessor-in-interest of defendants 8 to 10, are the heirs of Abdul Rahaman. The plaintiff is a person who in 1918 purchased the shares of defendants 2 to 5 and of Abdul Hasim in one of the three plots of land comprised in the mortgage the other two plots having been sold by Abdul Rahaman to defendant 1 in 1906. Defendant 11 is an assignee of Golam Ali's mortgage who in 1921 brought a suit upon the mortgage against the plaintiff and the present defendants 2 to 7. Under the compromise decree which was made in that suit on 14 November 1922 the plaintiff paid off the mortgage debt by payment of a sum of Rs. 225 on 13 March 1923. Accordingly, on 9 May 1926, the plaintiff brought the present suit for contribution from the different defendants in proportion to their shares. The plaintiff claimed that as against the defendants whose property was liable under the original mortgage he had a charge on the property of each for the amount due to him from that defendant for contribution. The Munsif has taken the view that the plaintiff's right is to enforce against the defendants the original mortgage of 1903, that he stands in the shoes of the original mortgagee and so obliged by the Limitation Act to bring his suit within 12 years from the due date mentioned in the original mortgage bond unless that time is extended in his favour by acknowledgment or part payment or otherwise. Upon this footing, it is not contested before us that the plaintiff's suit of 1926 would be out of time. The Munsif having dismissed the suit as statute barred, the Subordinate Judge on appeal by the plaintiff has reversed his decision holding in effect that upon the discharge of the original mortgage by the plaintiff in 1923, the plaintiff acquired by the express provisions of Section 95, T. P. Act, a charge upon the properties comprised in the mortgage and belonging to the defendants.

(2.) The point in issue was dealt with by a Division Bench of this Court in Srimati Raj Kumari Debi V/s. Mukunda Lal Bandopadhya A.I.R. 1921 Cal. 166, where it was held that a co- mortgagor seeking contribution must bring his suit within the period within which the mortgagee could have brought a suit to enforce his mortgage. A contrary view however has been taken by the Madras High Court in Parvati Ammal V/s. Venkatarama Iyer A.I.R. 1925 Mad. 80, by the Allahabad High Court in Aziz Ahmad Khan V/s. Chotte Lal , and by the Oudh Chief Court in Rameswar V/s. Mt. Sheorani A.I.R. 1927 Oudh 552. The Division Bench which dealt with the present case upon second appeal has differed from the decision in Srimati Raj Kumari's case and has referred the question to a Full Bench for final decision.

(3.) It may here be observed that Section 95, T.P. Act, has by Act 20 of 1929 been amended in such a way that 8s. 92 and 95, as they now stand, make it clear that the right of the co- mortgagor redeeming; is the "same right as the mortgagee whose mortgage he redeems may have against the mortgagor." In effect therefore the decision in Srimati Raj Kumari's case is now statute law. The present case how ever must be dealt with upon the Act as it stood prior to the amendment of 1929 and in recent years, more than one decision of the Judicial Committee of the Privy Council has insisted that matters which are dealt with by the Act shall be determined according to the true construction of the words used by the legislature. Thus in Ganeshi Lal V/s. Thakur Charan Singh , it was said of S. 82 that: as the Act prescribes the conditions in which contribution is payable it is not proper to introduce into the matter any extrinsic principle to modify the statutory provisions.