PIRTHIRAJ SINGH Vs. RUKMIN KUNWAR

JUDGEMENT

(1.) The facts involved are rather complicated, but the actual point for decision is really one of law and is whether the predecessors-in-title of the appellant, viz., the defendants second party, entered into an agreement with the predecessor-in-title of the defendants first party so as to exclude a right of contribution.

(2.) It appears that one Chiranji Lal was the proprietor of a title over 3 3/4 biswa share of a zamindari property in a certain village Surjawali and two shops. He made a simple mortgage of the same on the 7 March 1907 in favour of one Ram Kishun Das. Raja Moti Chand and others purchased Ram Kishun Das's title later on. Chiranji Lal sold, on the 6 January 1913, the zamindari property to the defendants second party for a sum of Rs. 22,000 and left a sum of Rs. 19,000, out of the sale consideration, with the vendees for payment to the mortgage under the mortgage of the 7 March 1907. It was agreed by this sale-deed and a deed of agreement which was executed by the vendees on the next day that in case it was necessary to pay more than Rs. 19,000 to the mortgagee under the mortgage of 1907, Charanji Lal would provide the balance and, in case of his failure, the same could be recovered from him personally with interest at 8 per cent per annum. On the date of sale, a little over Rs. 28,000 was really due to the mortgagee. A mortgage decree was passed in favour of Raja Moti Chand and others on the 4th March 1913 for a sum of Rs. 21,000 odd.

(3.) The defendants second party executed a mortgage in favour of Raja Ram and others including the plaintiff and left a sum of Rs. 19,250 for payment of the mortgage decree. These mortgagees, with the exception of the plaintiff, form the defendants fourth set. The defendants third party are transferees from defendants second party, of a portion of the 1 3/4ths left with the latter. The defendants fourth party deposited in Court the sum of Rs. 19,250 that had been left with them, on the 4 February 1914. On the 11 December 1917, the appellant who was one of the mortgagees from the defendants second party, purchased a 2 biswa share of Surjawali. The appellant paid off the balance due to Raja Moti Chand and others, after the property had been sold at the instance of the transferee of the decree-holders. The appellant had to pay, besides the decretal amount, the usual 5% on the same and some costs. This payment was made on the 19 December 1919. Having thus satisfied the mortgage of the 7 March 1907, the appellant, who was the plaintiff in the Court below, brought the suit, out of which this appeal has arisen, to recover the amount paid by him by sale of the property originally mortgaged in 1907 except the two biswas purchased by the appellant himself.