BEHARI LAL SEN Vs. INDRA NARAYAN BANDOPADYA

JUDGEMENT

(1.) This is an appeal by the Defendant No. 1 against a decree of the Subordinate Judge of Birbhum, whereby a preliminary decree for sale on mortgage has been passed against the interest of Defendant No. 1 in certain properties belonging to the defendant's family. The interest of the Defendant No. 1, which by this decree has been made answerable for the mortgage money, is a 5/12ths interest in the mortgaged properties.

(2.) The position is this : There were two brothers belonging to the Dayabhaga School. One brother died leaving three sons, Behari Lal Sen, Dafendant No. 1, Tarini Raman Sen, Defendant No. 2, and Bepin Behari Sen. Bepin died leaving Bahuballav Sen, Defendant No. 3, and Defendants Nos. 5 and 6 who were minors. The other brother, when he died, left a widow who was Defendant No. 4, and the mortgage transaction was constituted by a registered mortgage bond executed by Behari, Tarini and Bahuballav, That was a document dated the 24 June 1908 and the form of the document is this : that various family properties (which included certain shares in properties) were scheduled to the deed; that those three persons were the borrowers putting forward all the family properties as belonging to themselves. It is stated that as security for the satisfaction of the said amount, we mortgaged the zamindary, putni and nishkar properties owned and possessed by us and described in the schedule below.

(3.) In my opinion these three persons put themselves forward, each of them representing to the mortgagee that he had whatever share or interest did not belong to the other two. The Defendant No. 1, for example, must betaken as representing that if there was any interest in that property beyond the interest of Tarini and Bahuballav it belonged to him. What has happened is that Defendants Nos. 2 and 3 made-no payment of interest on the mortgage- Consequently it has been found that, so far as they are concerned, the 12 years period of limitation protects them from. a suit to enforce the security as between, themselves and the mortgagee. Defendant No. 1, however, did make certain payments, and, within a few days apparently of the expiry of 12 years from, the date of the last payment, the present suit was brought, namely on the 24th, November 1923. 5. The first question raised is as to the right of the plaintiff against Defendant No. 1. The Subordinate Judge has found several things against the plaintiff, but the plaintiff has not brought any cross-objection, and has not complained against those findings. He has found, for example, that the purpose for which the bond was taken was not one of necessity, and that therefore the other members of the family, who were no parties to the transaction, cannot have their shares made answerable for the loan on the basis that the loan was obtained on their behalf by the karta of the family. The appellant says that it is not right that upon his share in the mortgaged property the whole of the mortgage debt should be visited, but that he should only be made to pay a rateable part of the debt. The second point is this : After the suit had been instituted Defendant No. 4 died and Defendant No. 1's share in the property which previously was 1/6 became 5/12ths. He says that that acquisition of interest (however it may be described), this inheritance, which he obtained on the death of Defendant No. 4, was not comprised in the mortgage and cannot be made answerable for the mortgage money. 6. It makes a good deal of difference to the rights of the mortgagee if subsequent to the mortgage the various co-mortgagors have effected a portion o? the mortgaged properties between themselves. The mortgages in the case of any particular mortgaged share would have to follow the particular allotment that was made to the mortgagor out of the family property. The first thing that one sees when one reads the pleadings and the issues in this case is that there was no issue raised to the effect that the rights of the parties ought to be determined in view of a partition subsequent to the mortgage deed. In the written statement originally filed by Defendant No. 4 there was certain loose talk about people being and not being in joint meas. The Defendant No. 1 has, however, filed a written statement of his own after the death of Defendant No. 4 and it is impossible to discover from what is alleged in that written statement any intelligible case to the effect that at such and such a date, after the mortgage bond, the parties made a partition of their properties by which the Defendant No. 1's interest was limited to particular properties or allotments. The issues framed contain no such question. When the Judge came to deal with the case he did so on the basis that the Defendant No. 1 had still got a 5/12 interest in the mortgaged property. I, therefore, put any question of partition out of the case. The mere circumstance that plaintiff's claim is statute barred as against the other defendants does not offer any defence to Defendant No. 1 in view of the circumstances that there is a covenant to pay not merely joint but joint and several. There can be no doubt therefore that his debt was not released. Is there any reason why the whole of that debt should not be recovered from the share of Defendant No. 1. We have had cited to us certain decisions, and the learned Judge in his judgment mentions some observations made in the case of Mir Eusuff Ali Haji V/s. Panchanan Chatterjee [1910] 11 C.L.J. 639. Now, the line of cases which has been relied upon in this appeal goes upon this principle, that a mortgagee who has a security upon two or more properties which he knows to belong to different persons cannot release his lien upon one so as to increase the burden upon the other without the privity or consent of the persons affected. The Subordinate Judge points out that that line of cases is not at all applicable as between the original parties to the mortgage and that it is a firmly settled doctrine that, as between the original parties, the release of a part of the premises does not affect the lien of the mortgagee upon the residue which is bound for the whole debt. 7. The case where others have a lien upon the remainder is different. It may be that the mortgagee has no right to release any portion of the mortgaged premises to the injury of the owners of such liens. Whether the case of a mortgage debt becoming statute barred as against one of several co-mortgagors is the same as a release by the mortgagee of a portion of the mortgaged premises is a matter on which I reserve my opinion. Whether any subsequent incumbrancers from one of several co-mortgagors can possibly say that a mortgagee's failure to enforce his mortgage within the time limited by the Limitation Act is negligence or laches or breach of any duty owed by the-mortgagee to him is a serious question to say the least. 8. But we are not concerned with that, line of cases at all. In the present ease we are concerned with this that one of the three persona who claimed to be a co- owner of a certain property and who made himself individually liable for the debt has had a decree passed against him on the basis that his share is responsible for the whole of the debt. It has been suggested that this is wrong because the Defendant No. 1 would have great difficulty in getting any contribution from the other sharers. I fail to see that there is any difficulty in his way, if he discharges his debt, to prevent his having a right to sue his co-debtors even though it be true that the plaintiff could not succeed against the co-debtors directly. It was pointed out in the case of Abraham Servai V/s. Raphial Muthirian [1916] 39 Mad. 288 that in such cases the right of contribution is an independent equity which arises between the co-mortgagors and the mere circumstance that the plaintiff's right is barred as against certain of the mortgagors is not an obstacle to suit for contribution, nor is it possible to maintain that the cause of action in a suit for contribution would not arise upon payment being made. 9. The only remaining question in this appeal is with reference to the additional share which came to Defendant No. 1 upon the death of his aunt Defendant No. 4. That question has been dealt with by the learned Judge on the basis of Section 43 of the Transfer of Property Act. Section 43 of the Transfer of Property Act is is as follows: Whore a person erroneously represents that he is authorized to transfer certain immovable property, and professes to transfer such property for consideration, such transfer shall, at the option of the transferee, operate on any interest which the transferrer may acquire in such property at any time during which the contract o? transfer subsists. 10. That is one principle. Another principle to be borne in mind is the principle that any enlargement of the mortgagor's interest in the mortgaged premises usually enures for the benefit of the mortgagee. We have to consider whether the learned Judge has rightly he subjected to the mortgage the whole of the 5/12ths interest. In my judgment has rightly done so. It appears to me that as between the mortgagor and the mortgagee we have be remember first that by the mortgage deed itself the Defendant No. 1 claimed to be entitled to whatever interest was not tested in his brothers Tarini and Bahuballav. There is a representation on the part of each of these three persons that any interest which is not in the other two is in himself. But, apart from that, we must consider the principle which has been applied to India on the authority of the Privy Council in the case of Raja Kishendatt Ram V/s. Raja Mumtaz Ali Khan [1879] 5 Cal. 198, where it was held that English Law as regards this matter is found in justice and may be applied to an Indian mortgage. The Judicial Committee referred to Doed. Gibbons V/s. Pott [1718] 2 Dong. 710, where a mortgagor being lord of a manor, purchased certain copy hold interests enured to the benefit of the mortgagee. Again in the case of Ajudhia Prasad V/s. Man Singh [1902] 25 All. 46 there was a mortgage and a sub-mortgage. The mortgagee bought the equity of redemption and it was held that that enured to the benefit of the sub-mortgagee. The earliest case in which the principle was applied was the case of Shyama V/s. Ananda [1880] 3 C.W.N. 323 before Mr. Justice Tottenham, and there is the further case of Deolie Chand V/s. Nirban Singh [1879] 5 Cal. 253. I will refer to two cases only. 11. First, Surja V/s. Nanda Lal Sinha [1906] 33 Cal. 1212, where it was held that, apart from any question of Section Ill of the Transfer of Property Act or from any question of merger, where A mortgaged a chak and subsequently acquired the maurashi makarari interest in the chak, the purchase of the mokarari was an accession to the mortgaged property under Section 70 of the Transfer of Property Act. The case of Ajijuddin V/s. Sheik Budan [1895] 18 Mad. 18 Mad. 492 was even stronger because there the acquisition took place after the decree, but in that case the interest of a Mahomedan lady, who had covenanted very much in the same way as the Defendant No. 1 has covenanted in the present case, was held bound by the mortgage in respect of that part of it to which she had become entitled on the death of one of her children, that is to say, the Court held the the share which she had inherited since the date of the mortgage was bound by the mortgage. In my judgment this is a case in which the mortgagee is entitled to have recourse to the whole of the interest which in fact was possessed by Defendant No. 1 at the time the decree was made. 12. I think therefore that this appeal fails and must be dismissed with costs to the plaintiff-respondent. Majumdar, J. 13. I agree.