COLLECTOR OF FARRUKHABAD Vs. KISHORE MOHAN

JUDGEMENT

(1.) This is a defendants appeal arising out of a suit for contribution which was treated by the first Court as a suit for the enforcement of a lien of the vendor for the unpaid purchase money. In 1911 a mortgage deed was executed by Raghunath Singh hypothecating a half-share in a grove and a zamindari property to Chhange Lai. Later in the same year Raghunath Singh along with the guardian of Sita Ram Singh sold the grove to Azizuddin and Imamuddin, leaving money in the hands of the transferees for payment of the entire mortgage money due to Chhange Lai. Subsequently Imamuddin transferred his interest in the grove to Azizuddin and then the latter acquired, the whole interest in the grove from Azizuddin in 1916. There was a stipulation in the deed that Imamuddin would pay the whole of the mortgage money. Sita Ram instituted a suit for the cancellation of the deed executed by his guardian which succeeded. Then Sita Ram transferred to Lachhmi Narain his share in the groye. This share was obviously free from the mortgage of 1911. Later on Imamuddin transferred his interest in the remaining half of the grove to Lachhmi Narain in 1917. In the sale deed taken by Lachhmi Narain the property was professedly sold free from all incumbrances and there was no reference to the mortgage deed of 1911. Thus Lachhmi Narain contracted in express terms not to undertake the liability to discharge the amount due under the mortgage of 1911. The defendants-appellants are the representatives of Lachhmi Narain. The plaintiff Kishore Mohan in 1918 purchased half the zamindari share of Raghunath Singh, that is to say, his equity of redemption in the share subject to the mortgage of 1911.

(2.) The mortgagee of 1911 then brought a suit and obtained a decree and put up the entire mortgaged property for sale at auction. The plaintiff Kishore Mohan paid the whole of the decretal amount and saved the property of all the mortgagors from sale. This was on 20 January 1923. He then on 23 January 1924 filed the present suit claiming the whole of the amount which he had paid in discharge of the mortgage decree. The defendants pleaded that the claim was barred by limitation and that the plaintiff was not entitled to any amount whatsoever from the defendants. The Courts below have held that the claim is not barred by limitation and that the plaintiff was entitled to the whole amount. So far as the question of limitation is concerned the learned advocate for the appellants has to concede that the latest case of this Court Aziz Ahmad Khan V/s. Chhote Lal , is against him. The payment was made at a time when the old Transfer of Property Act was in force. We are therefore not concerned with the effect of the recent amendment. With regard to Section 95 of the old Act, their Lordships of the Privy Council in the case of Ahmad Wall Khan V/s. Shamsh-ul-Jehan Begam [1906] 28 All. 482 remarked that the construction of Section 95, T.P. Act, should not limit its operation to mortgages under which possession passes, and therefore on redemption property repasses: the better way is to construe it distributively, to make the condition of obtaining possession apply only to the cases in which its fulfilment is from the nature of the mortgage possible, and in other cases to make the charge follow on redemption.

(3.) It is clear that their Lordships intended to lay down that on redemption of the mortgage property by one of the several mortgagors, even in case where the mortgage was not a possessory one, a charge accrued in favour of the mortgagor who discharged the mortgage. Beading Secs.82, 95 and 100, T.P. Act, in the light of the observation made by their Lordships of the Privy Council there can be no doubt that a mortgagor redeeming the whole mortgage was entitled to enforce the charge against his co-mortgagors. The right to enforce it obviously accrued on the date of payment. The article applicable to such a claim would obviously be Art. 132, Lim. Act. It was therefore impossible to hold that if 12 years had expired by the time the mortgage decree was passed on the mortgage and one of the mortgagors paid up the whole amount he had no remedy left. We are therefore of opinion that the suit was really one for contribution and was not barred by time.