GANESHI LAL Vs. JOTI PARSHAD

JUDGEMENT

(1.) The facts giving rise to this second appeal may be shortly stated. The property in dispute was mortgaged by all the sons of one Ram Narain in the year 1896 by means of two mortgage deeds with one Raghu Mal of Delhi in the sum of RS. 11,200. At the time of the mortgage Ram Narain's sons constituted a joint Hindu family. Ganeshi Lal defendant 1, one of the sons of Ram Narain, redeemed this mortgage in the year 1920 on payment of a sum of Rs. 5800 and entered into possession of the mortgaged property. Subsequently he was paid a sum of Rs. 1200 by certain persons whose property was under mortgage with the joint family. These facts are no longer in dispute between the parties.

(2.) On 11 January 1942, the descendants of two of the sons of Ram Narain brought the suit out of which this appeal arises for possession by partition of the property in dispute in respect of their shares. The plaintiffs alleged that the family had disrupted since about eight years before the suit and that they had a two-fifth share in it of which they claimed possession by partition. 4. The suit was mainly defended by Ganeshi Lal and he raised a number of pleas. It was contended by him that at the time when he redeemed the mortgage the family had ceased to be a joint Hindu family, and that by redemption of the mortgage he had taken possession of the mortgaged property and was holding it adversely. He further contended that in any case the plaintiffs could not be given a decree of their shares in the disputed property without payment of their proportionate share in the amount of the mortgage debt, namely, a sum of Rs. 11,200. The trial Judge framed as many as 16 issues in the oase. It is not necessary to mention these in the judgment. 4. The plaintiffs were granted a preliminary decree for possession by partition of the property in suit except the redeemed mortgagee rights against the defendants and it was held that their Bhare in it was one third. The decree was conditional on payment of their proportionate share in the sum of Rs. 4600 which was determined to be the amount due to Ganeshi Lal on the foot of the mortgage of 1896 minus the amount which he had realized on account of certain mortgages rights. This decree was based on the findings that the joint Hindu family had disrupted some-time in the year 1910, that when in the year 1920 Ganeshi Lal redeemed the mortgage of 1896 he did it as a co- mortgagor, and was entitled to be subrogated to the rights of the mortgages in the matter of redemption, foreclosure etc., and, therefore, the plaintiffs could not claim partition till they had paid their proportionate share in the mortgage-debt. As the amount paid to redeem the previous mortgage was in the sum of Rupees 6800 the plaintiffs were held to be entitled to possession of their share by paying proportionately their share in this amount. The plea of Ganeshi Lal that he was entitled to the proportionate share of the plaintiffs in the amount of the mortgage-money Rs. 11,200 which was due to the mortgages on the date of redemption was negatived. The plea of the plaintiffs that they were entitled to two-fifth share was also negatived and it was held that they were really entitled to one-sixth each, the two plaintiffs, therefore, being. entitled to one third share in the property in dispute. The trial Judge negatived the pleas of res judicata and adverse possession that had been taken by Ganeshi Lal. The decree of the trial Judge was affirmed in appeal by the learned District Judge, Hissar, with the modification that the amount on which the plaintiffs were entitled to obtain possession of their share was enhanced from Rs. 4,600 to a sum of Rs. 5,000 and it was held that they must contribute proportionately their share towards the payment of this amount to the defendant. The plaintiffs were content with the: decision of the learned District Judge but Ganeshi Lal is dissatisfied and he has preferred a second appeal. 5. Two points were argued by Mr. Bhagwat Dayal in support of defendant Ganeshi Lal's case. In the first instance, he urged that the suit for possession by partition was not maintainable because the plaintiffs should have in the first instance brought a suit for redemption in respect of the mortgage of 1896. This contention was supported on the basis of a decision of the Bombay High Court in Baghavendracharya Appacharya Katti V/s. Vaman Shrimwas Desk-1 panda and Ors.. The principal question involved in that case was one of limitation and it was held that as the suit for redemption was barred by time a suit for partition in those circumstances was not maintainable by the heirs of the original mortgagor. In that case also the co-mortgagor had redeemed the property and the suit had been brought by his co-sharers for possession by partition of their shares. The view taken, however, was that if the co- sharers brought a suit for redemption that suit would be barred by limitation and hence they had no right to claim possession by partition. This decision, however, does not help the contention of Mr. BhagwatDayal. In the present case, even if a suit for redemption had to be brought in respect of the mortgage of X896 in the first instance, that suit could be well within limitation and Mr. Bhagwat Dayal could not support the contention that a suit for redemption and a suit for possession by partition could not be joined together in one plaint. The only result of such a joinder would be that the plaintiffs would not be entitled to possession by partition of their shares without paying the amount due to the redeeming co-mortgagor on the foot of the mortgage, For the reasons given above, I repel the first contention of Mr. Bhagwat Dyal. 6. The second contention raised by Mr. Bhagwat Dayal is to the effect that the Courts below had erroneously held that the plaintiffs Could get into possession of their shares by partition of the suit property on payment of the proportionate share in the sum which was paid by Ganeshi Lal to redeem the mortgage of 1896. The learned Counsel urged that the plaintiffs could only enter into possession of their respective shares on payment of their proportionate share of the mortgage debt, i.e., the amount that was due on the foot of the mortgage on the date that he redeemed it. For this proposition reliance was placed on the provisions of Section 92, T.P. Act. 8. This section is in these terms: 92. Any of the persons referred to in Section 91 (other than the mortgagor) and any co-mortgagor shall, on redeeming property subject to the mortgage, have, so far as regards redemption, foreclosure or sale of such property, the same rights as the mortgages whose mortgage he redeems may have against the mortgagor or any other mortgages. It is contended by Mr. Bhagwat Dayal that Ganeshi Lal stood in the shoes of the mortgagee of 1896 and he has the same rights as regards redemption as vested in his predecessor-in-interest, and, therefore, the plaintiffs could not claim partition of their shares in the mortgaged property without discharging the whole of the mortgage debt that was due under that mortgage, namely, Rs. 11,200 to the extent of their shares. No case covering exactly the point that arises here was cited before us, but considerable stress was laid on the language employed in the section and on the theory of substitution or equitable assignment in favour of the redeeming co-mortgagor and it was suggested that he stood in the same position as an assignee from the original mortgages. This contention in my opinion cannot be sustained. It was ruled by a Full Bench of the Allahabad High Court in Jlira Singh and Ors V/s. Jai Singh and Ors. that the foundation of the right of subrogation is the well-known equitable principle of reimbursement embodied in Section 69, Contract Act, that a person who is interested in the payment of money which another is bound by law to pay, and who therefore pays it, is entitled to be reimbursed by the other, This decision was given on the language of Section 92, T.P. Act, 1882, as amended by Act XX

(20.) of 1929. The same view of the principles underlying this section was taken by a Full Bench of the Oudh Court in Brij Bhukhan V/s. Pt. Bhagwan Datt . In that case it was held that a co-mortgagor by paying the mortgage money acquires a charge in regard to the amount paid by him in respect of his mortgagors over their shares even independently of Section 95, T.P. Act, and that his right apart from Section 92 is further supported under Section 82 and Section 100 of the Act. That the section is founded on the doctrine of reimbursement is further supported by a number of authorities that have been collected in Chitaley's latest edition of the Transfer of Property Act at P. 1428. The rule of reimbursement has been stated in Section 69, Contract Act, in the following terms: A person who is interested in the payment of money which another is bound by law to pay, and who therefore pays it, is entitled to be reimbursed by the other. 9. It was not denied by Mr. Bhagwat Dayal that had his client brought a suit for contribution on the principles underlying Section 82, T.P. Act, he could not have sued for more than the amount which he actually paid to the previous mortgages at the time of redeeming the mortgage of 1896. In this Province, the Transfer of Property Act is not in force and the statutory provisions laid down in those sections do not in terms apply. It is the rules of equity, justice and good conscience underlying these sections which have been given effect to here. I have not been able to discover any principle of equity, justice and good conscience and Mr. Bhagwat Dayal has not been able to enlighten us about any such principle on the basis of which a person who is entitled to be reimbursed in respect of a certain payment is entitled to claim in a Court of law not only the amount that he paid, but also the benefits which he gained by redeeming a previous mortgage. So far as I can see, the doctrine of subrogation is a doctrine which protects a person who is in the situation of the present defendant, but it does not go further and entitle him to claim advantages and benefits which he may personally derive by the act of redemption. In my judgment therefore, the two Courts below took a correct view of the legal question that arose for decision in the case and rightly held that the defendant Ganeshi Lal was entitled to the amount that he actually paid to the previous mortgagee after deduction of the amount that he had realized from certain mortgages. 10. The result, therefore, is that this appeal fails and is dismissed. In the circumstances of the case, I would make no order as to costs throughout. Teja Singh, J. I agree.