M MAHAMMAD ABDUL RAHMAN Vs. LBALDEO SAHAI

JUDGEMENT

(1.) This is a defendant's appeal arising out of a suit brought by the plaintiff for contribution. It appears that on 24 March 1923 Inayat Ilahi, defendant 1, executed a simple mortgage of four properties for Rs. 1400 in favour of the plaintiff. One of the villages so mortgaged was Chaturbhojpur. In July 1926 Inayat Ilahi again mortgaged the same properties together with the village Inampur in favour of the plaintiff for Rs. 400. The mortgagee brought a suit on foot of the subsequent mortgage of 1926 and obtained a decree. The properties mortgaged were ultimately put to auction and all, with the exception of Chaturbhojpur, were purchased by the plaintiff himself and Chaturbhojpur was purchased by one Mt. Bashiram who sold it to the defendant. It was specifically provided in the proclamation of sale that the properties were subject to the earlier mortgage of 1923. The plaintiff brought the present suit for contribution for the recovery of Rs. 437-2-0 and interest at 1/4 per cent, being the proportionate amount payable by the defendant. The suit was contested by the defendant and it was pleaded inetr alia that the village purchased by him was free of charge and that the value of the share sold to him was only Rs. 113-13-0. The Courts below decreed the suit. The trial Court assessed the amount payable by the defendant to Rs. 318 but the lower Appellate Court reduced it to Rs. 259-8-0. The defendant now has preferred this appeal.

(2.) It is not open to the appellant to challenge the finding of the Court below on the question that the property sold to him was not free of incumbrance. The documentary evidence on the record clearly shows that the properties put to auction were subject to the prior charge under the mortgage of 1923, the first point pressed by learned Counsel for the appellant is that the plaintiff himself having purchased a portion of the hypothecated property subject to the entire charge cannot bring the present suit for contribution. It is argued that the general principle that every item of property subject to a mortgage is liable to contribute ratably to the debt is not applicable to the present case as the plaintiff knew very well that he was purchasing the property subject to the entire charge. In support of this contention reference is made to Gulzari Lal V/s. Ali Ahsan . Section 82, T.P. Act, provides: Where property subject to a mortgage belongs to two or more persons having distinct and separate right of ownership therein the different shares in or parts of such property owned by such persons are in the absence of a contract to the contrary liable to contribute rateably to the debt secured by the mortgage.

(3.) It is contended that in the present case the proclamation made by the sale officer is tantamount to a contract made on behalf of the mortgagor and is legally binding on the purchaser just as much as a contract between a mortgagor and a purchaser. The argument however proceeds on an erroneous assumption. It is not the plaintiff's property alone which was sold subject to the prior mortgage but the defendant's property also was sold subject to the same mortgage. Each purchaser was made to understand that the property purchased by him was being sold subject to an incumbrance. If the property had been purchased by a stranger it cannot be doubted that the mortgagee of the prior mortgage could have brought a suit against all the purchasers and would have obtained a decree for the sale of the entire property covered by the |mortgage. It is only an accident that the mortgagee himself purchased some of the mortgaged properties. The effect of this purchase was to break up the integrity of the mortgage and a portion of debt which bears the same ratio to the whole amount of debt as the value of the property purchased by the mortgagee bears to the value of the whole property comprised in the mortgage is discharged. It does not follow that the entire liability under the mortgage is wiped off because the mortgagee himself purchased some of the items of the mortgaged property. The ruling cited by learned Counsel for the appellant is not in point. In that case two properties were subject to several mortgages. Under a subsequent mortgage only one of the two properties was put to auction and was purchased by the plaintiff mortgagee who discharged all the earlier encumbrances and in a suit for contribution against the mortgagees of the other property it was held that a suit for contribution was not maintainable because the property sold to the plaintiff was subject to the entire charge. In that case the learned Judges found that the sale officer intended that the entire liability under the earlier mortgages should be paid by the purchaser. For that reason a property worth Rs. 17,000 or 19,000 was sold for the sum of Rs. 5000. The circumstances of the present case are entirely different. Here all the properties put to auction were subject to the earlier incumbrance and it is not open to the defendant to plead that his property was exempt from liability. In my judgment the argument of learned Counsel on this point is untenable.