BAVA SAHIB Vs. CKKRISHNA BOYAN

JUDGEMENT

(1.) This Second Appeal raises a question of contribution. Defendant 2 was the owner of two houses and four items of lands bearing Survey Nos. 157/1, 158/2, 152/2 and 157/2. On 5th February 1918 he mortgaged the houses and survey Nos. 152/2 and 157/2 for Rs. 2,000 to one Rangammal. On 26 September 1919 he mortgaged the houses as well as all survey numbers for Rs. 4,000 to one Subramania Chetty. On 28 April 1920 he sold to defendant 1 survey Nos. 152/2, 158/2, 157/2 and 157/1 for Rs. 5,750. Out of the purchase money Rs. 750 was paid as advance and this was utilised in payment of interest to the two mortgagees aforesaid. Out of the balance of Rs. 5,000 Rs. 2,000 was reserved to be paid to Rangammal towards principal in full discharge and Rs. 3,000 was reserved to be paid to Subramania Chetty in part discharge. On 25 January 1922, defendant 2 sold the two houses to the plaintiffs by Ex. A. Under the said purchase he was asked to pay Rs. 1,200 towards the mortgage in favour of Subramania Chetty. As defendant 1 did not pay immediately the sums reserved in his sale deed to the mortgagees, suits were filed on the mortgages. The suit on the mortgage in favour of Subramania Chetty was filed in 1921 being O.S. No. 231 of 1921 on the file of the Principal Subordinate Judge of Coimbatore. The preliminary decree therein was passed on 11 February 1922 and defendant 1 deposited Rs. 3,000 into Court on 29 June 1922 in part satisfaction of the decree and the plaintiff paid Rs. 1,200 on 1 July 1922. For the balance due the properties mortgaged were being brought to sale and the plaintiff to save the properties in his possession-being sold paid Rs. 1,983 in two sums (Rs. 1,000 on 17th April 1926 and Rs. 983 on 9 April 1927) in addition to Rs. 1,200 paid in pursuance of his sale-deed. Rangammal brought a suit on her mortgage being O.S. No. 698 of 1923 on the file of the Principal Subordinate Judge of Coimbatore, and in execution of the decree, survey Nos. 152/2 and 157/2, in the possession of defendant 1, were sold, and in the Court auction sale held on 13 October 1924, Rs. 2,985 was realised, and for the balance due, the plaintiff, to save his properties from being sold, paid Rs. 660 on the same date. The plaintiff has now filed the suit out of which this second appeal arises to recover the said two sums of Rs. 1,983 and Rs. 66 with interest thereon from defendant 1.

(2.) The main defence of defendant 1 is that the properties purchased by the plaintiff have contributed far less than their proportionate liability and therefore defendant 1 is not liable. Both the lower Courts have decreed the plaintiff's suit. It is contended by Mr. Sampath Ayyangar on behalf of defendant 1 that the lower Courts have not correctly applied the law bearing on the matter, that Section 69, Contract Act, on which their decisions are based, is not applicable; that Section 82, T.P. Act governs the case, and if the principle of that section is applied, his client, defendant 1 would not be liable; and he relies strongly on the decision in Kunchithapatham Pillai v Palamalai Pillai 1918 32 MLJ 347 which lays down that Secs.69 and 70, Contract Act, do not apply to claims for contribution arising under circumstances mentioned in Section 82, T.P. Act, that the expression contract to the contrary" in the section is not applicable to a contract between the vendor and a purchaser of a share of equity of redemption, but the benefit of that agreement may be assigned in favour of a subsequent purchaser of another portion of the mortgaged property and when such an assignment was expressly made, a valid defence may be raised by the subsequent purchaser to a claim for rateable contribution. The view expressed therein that an express assignment was necessary does not seem to be correct in view of the decision of the Privy Council in Ganesh Lal v. Charan Singh 1930 52 All 358.

(3.) In that case two properties K and M were mortgaged on 8 November 1906. The mortgagor sold the property K to one Sher Singh on 19 May 1914 and a considerable portion of the purchase money was left with him to enable him to discharge the said mortgage and other debts of the vendor. In July 1914 the property M was sold in execution of a decree against the mortgagor and purchased by A subject to the mortgage. On 21 May 1914 the property K was sold in execution of another decree and purchased by B subject to the mortgage and B subsequently assigned the property to Sher Singh. The mortgagee sought to enforce his mortgage and in execution of the decree obtained thereon put up both the properties to sale, and the properties were sold before the sale could be confirmed. Sher Singh deposited the mortgage amount into Court and filed a suit for contribution against A. A tried to resist the claim by pleading that under the sale by the mortgagor to Sher Singh dated 19th May 1914 he was bound to have discharged the mortgage out of the money reserved with him and he having failed to do so cannot seek any contribution. The Allahabad High Court took the view that as A was not a party to the contract between Sher Singh and the mortgagor and as the benefit of the contract had not passed to A, A was not entitled to take advantage of that contract and he was bound to contribute. Their Lordships of the Privy Council approve of this conclusion of the High Court and observe that Section 82 is the section that governs the case and 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.