S A SUBRAMANIA AYYAR Vs. MNATESA SASTRIGAL

JUDGEMENT

(1.) The plaintiff is the appellant. The second appeal arises out of a suit instituted by the plaintiff for contribution. Six items of property belonging to the family of defendants 1 and 2 had been hypothecated by them to one Valambal to secure a debt of Rs. 1500 in 1912. (See Ex. A). In 1913, on one and the same date, namely, 4 June 1913, the mortgagors sold items 1, 2 and 4, and other properties not comprised in the mortgage of 1912 to the plaintiff (See Ex. B), and item 6 and other properties not included in the mortgage to Valambal, to the defendant 3 (See Ex. C). These sale deeds were executed to pay off the debt due to Valambal. In Ex. B the plaintiff was directed to pay the hypothecatee Rs. 625. In Ex. C defendant 3 was directed to pay her a sum of Rs. 1000. Defendants 4 to 7 are alienees from the defendant 3. Item 3 of the suit properties was claimed by-defendant 9. Item 5 had been mortgaged by defendants 1 and 2 to the father of defendants 10 and 11. There was a suit for sale on foot of that mortgage and in execution of the decree therein that item was purchased by defendants 10 and 11. Ex. VII is the sale certificate in their favour. Neither the plaintiff nor defendant 3 paid to Valambal the full amounts reserved with them. The plaintiff paid only Rs. 104-4-0 and defendant 3 paid Rs. 500. As her mortgage was not discharged fully, Valambal instituted O.S. No. 113 of 1919, on the file of the Principal District Munsif's Court of Tiruvarur to enforce her hypothecation bond and she obtained a decree for sale of these properties on 3 September 1919.

(2.) A final decree was also passed on 9 January 1920. In execution of this final decree the six items of property were brought to sale. To avert the sale of items 1, 2 and 4 which were first sought to be sold, the plaintiff paid the mortgagee decree-holder the entire amount of the decree, namely, Rs. 2606-12-0 which eventually benefited the other judgment-debtors also, the defendants in the present suit. Having thus paid the entire amount of the decree, the plaintiff now seeks to be reimbursed from the defendants in so far as he had to pay more than proportionate liability of the items purchased by him. In other words, he says that he is liable to contribute towards the mortgage debt only rateably. The plaintiff's claim is resisted by defendant 3 on the ground that by any kind of valuation he has paid more than what his property is liable to contribute. The defendant 9 resisted the claim by setting up ownership to item 3 in himself as already stated. But it may be mentioned that both the lower Courts found that that item did not belong to him but belonged to defendants 1 and 2. The main argument of defendants 10 and 11 was that if defendant 3 and the plaintiff had fulfilled their obligations there would have been no necessity for the mortgagee to sue and so they are not liable. They also contended that as those items were sold to their father by defendants 1 and 2 free of encumbrance, they had no liability to contribute at all. It may generally be stated that the contentions of all the defendants were in great measure based" upon the plaintiff's undertaking to pay Rs. 625 to Valambal and his breach thereof in part. The plaintiff based his claim for contribution on Section 82, T.P. Act, which is as follows: Where several properties are mortgaged to-secure one debt, such properties are, in the absence of a contract to the contrary, liable to contribute rateably to the debt secured by the mortgagee.

(3.) Prima facie therefore each of the six items involved in the suit would be liable to contribute rateably to discharge the mortgage debt of Valambal. But the defendants contended that the plaintiff cannot rely on the equitable principle embodied in this section as there was a contract to the contrary in the present case, namely, the contract in Ex. B that the plaintiff would pay Rs. 625 to the mortgagee. The question for determination therefore was, was there a contract to the contrary within the meaning of Section 82, T.P. Act, the benefit of which could be claimed by the contesting defendants. The District Munsif held that all the items were liable to contribution on the ground that in the circumstances of the case it cannot be said that there was a contract to the contrary within the meaning of Section 82. He therefore passed a decree in favour of the plaintiff making each of the parties concerned liable to pay varying amounts, as mentioned in para. 13 of his judgment. Against this decree defendants 10 and 11, defendant 9 and defendants 4 to 7 appealed. The learned Subordinate Judge-upheld the pleas of the contesting defendants and said that: In my opinion, in the circumstances of the case, I do not think that the plaintiff can successfully argue that when the properties 1, 2 and 4 and property 6 were sold to him and to defendant 3, there was not a contract between himself and the mortgagors to discharge the debt exclusively from out of those properties.