SRIMATI SARAJUBALA ROY CHAUDHURANI Vs. KAMINI KUMAR CHAUDHURY

JUDGEMENT

(1.) The plaintiffs who were mortgagees in respect of a certain taluk sued on their mortgages and obtained a preliminary mortgage-decree on the 17 January 1916, and a final decree on the 9 June 1917. On the 26 April 1916 the landlords instituted a suit for rent in respect of the taluk and obtained a rent-decree on the 1 September 1916, and in execution of the said decree purchased the taluk on the 11 August 1917 and the plaintiffs deposited the decretal amount on the 11 September 1917 under Order XXI, Rule 89, C.P.C., and got the sale set aside. On the 24 October 1916, the defendant No. 1 purchased the taluk from the mortgagors the defendants Nos. 2 to 5, and on the 8 February 1918 the defendant No. 1 paid up the sum due on the final mortgage-decree. On the 14 September 1920 the plaintiff instituted the present suit for recovery of the amount deposited by him to set aside the sale of the 11 August 1917. The plaintiff has been successful in both the Courts below. The defendant No. 1 has appealed to this Court.

(2.) The principal contention urged on behalf of the appellant is that Section 69 of the Indian Contract Act is not applicable and, therefore, the plaintiff is not entitled to be reimbursed. The basis of this contention is the argument that defendant No. 1 was not bound by law to pay the back rents for which the decree had been obtained by the landlords in execution of which the landlords had purchased, and to set aside which sale the plaintiff had made the deposit. It is urged that although rent forms the first charge on the tenure the defendant No. 1 who was a subsequent purchaser at a private sale was not bound to pay the rent which was due for a period antecedent to his purchase, firstly in law, and, secondly, according to the terms of his purchase; and if that be so Section 69 will not apply as the expression bound by law implies a personal liability. In support of this contention as to the interpretation of the expression bound by law reliance has been placed upon the decision in the case of Gangadas Bhattar v. Jogendra Nath Mitter 11 C.W.N. 403 : 5 C.L.J. 315, wherein at page 412 the following observations were made: "It is not also disputed, that the mortgage under which the plaintiffs claim has been saved by this payment quite as much as the mortgage under which the defendants claim. But it is not sufficient to impose a liability upon the plaintiffs, as they are not the persons who were bound by law to pay the money within the meaning of Section 69 of the Indian Contract Act. The rent was due for a period, when the mortgagors and the purchasers from them were in possession and the plaintiffs as 1 mortgagees were not under any liability to pay the rent due to the superior landlord any more than the second mortgagees". All that that case means to lay down is that payments made by a 2nd mortgagee to save the mortgaged property from sale in execution of a decree for rent obtained by that zemindar against the mortgagor cannot be recovered from the 1 mortgagee as the latter is not bound under Section 69 of the Bengal Tenancy Act to pay the rent due by the mortgagor to the zemindar. Reliance has also been placed upon the decisions in the cases of Boja 11 C.W.N. 403 : 5 C.L.J. 315 Sellappa Reddy V/s. Vridhachala Reddy 30 M. 35 : 1 M.L.T. 323 : 16 M.L.J. 569, and Subramania Chetty V/s. Mahalingaswami Sivan 3 Ind. Cas. 624 : 33 M. 41 : 19 M.L.T. 627 : 6 M.L.T. 198, where an unregistered owner of a land was held not bound to pay the revenue due on the land under the Madras Revenue Recovery Act II of 1864. The meaning of the expression has been explained in a decision of this Court in the case of Mothooranath Chuttopadhya V/s. Kristokumar Ghost 4 C. 369 : 2 Ind. Dec. (N.S.) 234 and it was held that Section 69 of Act IX of 1872 was intended to include cases not only of personal liability but all liabilities to payment for which owners of lands are indirectly liable, when such liabilities are imposed on lands held by them. That was a case where two persons, on different dates, purchased different portions of a property on which there was a mortgage, and on the mortgagee obtaining a decree against the property, one of them paid off the entire debt and brought a suit against the other for contribution, and it was held that he was entitled to recover notwithstanding that in the deed of sale the person who had made the payment had given an undertaking that he would discharge all the liabilities of the mortgagor including the mortgage on the property. In this case reference was made to the illustration to the section as militating against the contention that the section was limited to the case of a personal liability of the person against whom reimbursement was claimed. In the case of Chandradaya Sen v. Bhagaban Chandra Sen 32 Ind. Cas. 200 : 23 C.L.J. 125 the above decision was followed and it was held that Section 69 was intended to include the cases not only of personal liability, but all liabilities for payments for which owners were indirectly liable, those liabilities being imposed upon by the lands held by them. This was a case in which a purchaser in execution of a mortgage-decree was held bound to pay the arrears of rent for which a decree had been obtained by the landlord prior to his purchase. On principle there does not appear to be anything differentiating this case from that of a purchaser at a private sale, and it must accordingly be held that the defendant No. 1 was bound by law to pay off the decretal debt. The appellant's contention that his purchase, upon the terms of his kobala, was free from liability for the back rents cannot help him as his liability for the rent remained, notwithstanding this stipulation, even it there was any such stipulation--though such a stipulation will perhaps enable him to recover the amount from his vendor.

(3.) It is next contended that the plaintiff should have added the amount which he had paid to his mortgage-debt and not having done so he is precluded from recovering it in a separate suit. For this proposition reference has been made to certain decisions, which, however, do not prohibit the institution of a separate suit for the purpose. On the other hand there is abundant authority for the proposition that a mortgagee who has given up his mortgage lien, might bring a simple suit for money for the purpose of recovering the money paid by him to save the property : Lachman Singh V/s. Salig Ram 8 A. 384 : A.W.N. (1886) 134 : 5 Ind. Dec. (N.S.) and Anandi Ram V/s. Dur Najaf Ali Begum 13 A. 195 : A.W.N. (1890) 228 : 7 Ind. Dec. (N.S.) and the same view receives support from the decision of the Privy Council in Nagenderchunder Ghose V/s. Sreemutty Kaminee Dossee 11 M.I.A. 241 : 8 W.R.P.C. 17 : 2 Suth. P.C.J. 77 : 2 Sar. P.C.J. 275 : 20 E.R. 92.