KAMTA SINGH Vs. CHATURBHUJ SINGH

JUDGEMENT

(1.) This is an appeal in a suit in which the purchasers of part of the lands comprised in a mortgage having bought subject to the mortgage and having paid off the mortgage debt, claim contribution from persons owning other parts of the lands subject to such mortgage. The appellants before their Lordships are the plaintiffs in the suit seeking contribution, while such of the respondents as are represented before their Lordships (hereafter referred to as the respondents) are the persons from whom contribution is claimed. The suit was begun in the Court of the Subordinate Judge of Monghyr and was taken on appeal to the High Court of Judicature at Patna. In both Courts below the appellants failed.

(2.) The history of the case begins with a mortgage dated 6 December 1905, made by or on behalf of a joint Hindu family of part of the raiyati holding of such family containing about 454 acres, and also of shares in certain proprietary lands. The mortgage deed was expressed to be for an advance of Rs. 35,000, and was framed so as to consist of (1) a usufructuary mortgage in lieu of interest for a term of nine years, of 175 acres described in Sch. 1 to the mortgage, being part of the raiyati holding of the family, and (2) a mortgage of the 175 acres described in Sch. 1, and also of shares in certain proprietary lands described in Sch. 2 as security for all the moneys, principal and otherwise, owing under the mortgage. The mortgage deed was duly registered within a day or two of its execution, but full effect was never given to it. It is admitted by both parties that as the result of a verbal agreement entered into between the mortgagors and mortgagees about the time at which the deed was registered, the mortgagees advanced Rs. 14,000 only of the Rs.35, 000 mentioned in the deed, and were put into usufructuary possession of 70 acres only out of the 175 acres mentioned in the deed. There is a conflict between them as to whether as the result of the verbal agreement the remainder of the 175 acres of which usufructuary possession in lieu of interest was not given were excluded wholly from the mortgage so as to case to be any part of the security. Between the date of the mortgage deed a December, 1915, the mortgagors sold to the respondents some 316 acres out of the total raiyati holding of 454 acres. It is not disputed that some part of those 316 acres was included in the 175 acres mentioned in the mortgage dead, but no part of them appears to have been included in the 70 acres of which usufructuary possession was given to the mortgagees.

(3.) The sale to the respondents was not expressed to be subject to any mortgage, but the conveyance to them contained a declaration to the effect that the title of the vendors was free from any flaw or defect, and also a covenant by the vendors to make good any loss should the, title prove defective. On 2 December, 1915, the mortgagors sold and conveyed a further 61 acres of the raiyati holding of 454 acres to certain persons (hereafter referred to as Harbans). These 61 acres or some parts of them were included in the 70 acres of which usufructuary possession had been given to the mortgagees. In the conveyance to Harbans the consideration was expressed to be Rs 18,932. Of this sum Rs. 1,932 were expressed to have been paid to the mortgagors, but the mortgagors were stated to have "kept in deposit" with Harbans Rs. 17,000, the balance of the consideration for payment as to Rs. 3,000 of a certain mortgage debt of that amount;, with which this case is not concerned, and as to Rs.14,000 with payment of the amount advanced on the mortgage created in December 1905. In 1916 the Revenue authorities, not having been paid the rent payable in respect of the raiyati holding or some part of it, issued a certificate for the recovery thereof under the provisions of the Public Demands Recovery Act (Bengal Act 2 of 1895).