ISRI PRASAD SINGH Vs. JAGAT PRASAD SINGH

JUDGEMENT

(1.) These appeals arise out of a suit for contribution. Baijnath Prasad Singh, defendant No. 70, the owner of (certain shares in) Mauzas Tungi Hasanpur and Latawar Faridpur, mortgaged them on October 25, 1905, and again on November 21, 1905, along with the first thirteen properties mentioned in Schedule 3 of the plaint to Rai Sahib Surju Lal, defendant No. 71, Babu Sri Lal. ancestor of defendants Ncs. 1 to 6, and another Sri Lal, adoptive ancestor (father) of defendant No. 7. On December 23, 1907, the mortgagor sold the two villages Tungi Hasanpur and Latawar Faridpur to Gendan Singh, a money-lender (since deceased), from whom the plaintiff derives his title. On the same date Baijnath Prasad Singh executed a mortgage in favour of the same Gendan Singh. The consideration of the kobala and the mortgage (Exs. 5 and 7) was left with Gendan Singh to pay of six mortgages including those of October 25, a November, 21, 1905, These two, mortgages were, however, not paid off on the ground of the insufficiency of the money left in the hands of Gendan Singh, and the mortgagees brought a suit in 1914 to enforce them, and obtained a preliminary decree in 1915 and the final decree in 1918. In 1926 and 1927 the plaintiff had to pay Rs. 23,065-6-15 dams to save the two mauzas from sale in execution of the mortgage decree in 1929 he brought the suit out of which these appeals arise, asking for contribution from defendants Nos. 1 to 58 as parties to whom the thirteen other mortgaged properties had passed. Contribution was also sought from defendants Nos. 59 to 66 for other reasons. Defendants Nos. 59 to 65 are descendants of Jagannath, a brother of Gendan, and defendants Nos. 66 and 67 are descendants of Gendan. There was a third brother Fagu Singh, to whom the Mauzas Tungi Hasanpur and Latawar Faridpur were allotted at a partition of the family in 1916, the ekrarnama (Ex. 2) providing, in view of the decree already obtained by the mortgagees upon the mortgages of October a November, 1905, that in case the properties be brought to sale in execution, the other two branches of the family would indemnify Fagu to the extent of two-thirds of Rs. 25,000, the value fixed for these properties at the partition. Plaintiff is Fagu's daughter's son, and received the two mauzas under will executed by Fagu. He sought contribution from defendants Nos. 59 to 67 (along with the owners of the other properties) as the quondam part-owners of the two mauzas, and in the alternative, i.e., if the other defendants should be held to be free from liability, as persons bound by the special arrangement of the ekrarnama at the partition.

(2.) The principal grounds on which the suit was contested were that Gendan Singh had sufficient money left in his hands by the mortgagor to pay off the two mortgages and that, therefore, the plaintiff was entitled to no contribution at all from those defendants into whose hands the other 13 properties had passed, and that several of these defendants were under no obligation to contribute, because the properties had been conveyed to them free from encumbrance. The learned Subordinate Judge came to the conclusion that Gendan did have enough money to pay oft the two mortgages, but that plaintiff was nevertheless entitled to contribution under Section 82, Transfer of Property Act, from the present owners of seven out of the 13 properties. He found the other owners not liable for contribution on various grounds--and more particularly defendants Nos. 8 to 10 (owners of properties Nos. 3 and 4) and defendant No 11 (owner of properties Nos. 8 and 9) on the ground that these (four) properties had been conveyed to them free from encumbrance. As against defendants Nos. 59 to 67, the learned Subordinate Judge passed a decree for the whole of the money that plaintiff had had to pay minus the amounts found due from the owners of the seven properties and minus also one third of the rateable share of the two Mauzas of Tungi Hasanpur and Latawar Faridpur. Of the three appeals before us, the one that has raised the most serious questions is First Appeal No. 187, which was preferred by defendants Ncs. 59 to C7. The contentions advanced on their behalf were (1) that it was really immaterial to the liability under Section 82, Transfer of Property Act, whether or not Gendan had enough money left with him by the mortgagor to pay off the two mortgages, but that in any case the lower Court was wrong in holding that he had enough, (2) that defendants Nos. 8 to 10 and defendant No. 11 should not have been exempted because what theytook was only the equity of redemption, and (3) that the liability of the appellants has been wrongly calculated. (After considering the documentary as well as oral evidence the judgment continued.) In my opinion, the learned Subordinate Judge was quite correct in holding that Gendan had enough in hand on the mortgagor's account to pay off the bonds of October and November, 1905, and that Gendan was not entitled to withhold payment merely on account of the extra Rs. 1,425 which may well have been due to him from Baijnath. On the question of law raised by Mr. Mukherji, the present case is not distinguishable in principle from Shah Muhammad Abbas V/s. Muhammad Hamid 14 Ind. Cas. 179 14 Ind. Cas. 179 : 9 ALJ 499 which, as the learned Subordinate Judge has said, "was not overruled or disapproved" but explained by their Lordships of the Judicial Committee in Ganeshi Lal V/s. Charan Singh 52 A 358 : 124 Ind. Cas. 911 : AIR 1930 PC 183 : 57 IA 189 : (1930) ALJ 753 : 34 CWN 661 : Ind. Rul. (1930) PC 287 : 32 Bom. LR 1146 : 59 MLJ 177 : 52 CLJ 117 : 32 LW 19 (PC). It is unquestionable that we cannot introduce any extraneous principle to modify the liability to contribution imposed by Section 82, Transfer of Property Act. But as Lord Tomlin further said in Ganeshi Lal V/s. Charan Singh 52 A 358 : 124 Ind. Cas. 911 : AIR 1930 PC 183 : 57 IA 189 : (1930) ALJ 753 : 34 CWN 661 : Ind. Rul. (1930) PC 287 : 32 Bom. LR 1146 : 59 MLJ 177 : 52 CLJ 117 : 32 LW 19 (PC), the decision in Shah Muhammad Abbas v. Muhammad Hamid 14 Ind. Cas. 179 14 Ind. Cas. 179 : 9 ALJ 499; may be justified on the footing that in that case there passed to the party, from whom the contribution was sought, the benefit of the contract by which the money was to be applied, so that he could say I have a contract which frees me from the liability to contribution which the section would otherwise impose on me. No such plea is available to the appellants in this case. They were not parties to the contract of May 9, 1914 nor has the benefit of that contract passed to them in law or in equity.

(3.) The facts in Shah Muhammad Abbas V/s. Muhammad Hamid 14 Ind. Cas. 179 14 Ind. Cas. 179 : 9 ALJ 499, were that the purchasers of Mauza Bangaon who had contracted with the mortgagors to make a certain payment towards a mortgage of 1898, and to pay off a mortgage of 1899, on certain shares in Mauza Jamalpur as well as Bangaon, had brought a suit for contribution against defendants who had subsequently purchased Mauza Jamalpur free from encumbrances" Contribution was in fact allowed, but the plaintiffs were debited with the amounts payable by them under their agreement or agreements with the mortgagors. The defendants were not parties to these agreements but Chamier, J. had found that the plaintiffs had been supplied with funds for the express purpose of making payments towards those mortgages and that it was not the intention of any of the parties concerned, after the purchase of the plaintiffs, that Jamalpur and Bangaon should contribute rate-ably to the mortgage debts. The benefit of the contract between the plaintiffs and the mortgagors, by which the money was to be applied by the plaintiffs, was thus regarded by their Lordships of the Judicial Committee as having passed to the defendants who had purchased Jamalpur "free from encumbrances" and to free them (pro tanto) from the ordinary liability to contribution under Section 82. In the present case defendants Nos. 8 to 10 and defendant No. 11 have been found by the lower Court to be in the same position as the defendants in. the case in Shah Muhammad Abbas V/s. Muhammad Hamid, 14 Ind. Cas. 179 14 Ind. Cas. 179 : 9 ALJ 499. They purchased free from encumbrance, and as Gendan is found to have had enough money in hand to pay off the bonds of October a November, 1905, their liability to contribution would be nil. Mr. Mukherji has argued that the "contract to the contrary" referred to in Section 82, Transfer of Property Act, must be a contract between mortgagor and mortgagee and not, as in the present case, a contract between the mortgagor and a purchaser from him, and has relied upon Ramabhadrachar V/s. Srinivas Ayyangar 24 M 85, in support. The learned Judges did observe in this case that The words contract to the contrary were intended to apply to contracts between mortgagor and mortgagee--contracts for example, under which some of the mortgaged properties were to be liable in the first instance, and others only to be liable in the event of the security of the properties liable in the first instance being insufficient.