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Allahabad High Court
Pirthiraj Singh vs Rukmin Kunwar And Ors. on 24 March, 1926
Equivalent citations: AIR 1926 All 415, 95 Ind Cas 343
Author: Mukerji


Mukerji, J.

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 7th 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 6th 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 7th 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 4th February 1914. On the 11th 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 19th December 1919. Having thus satisfied the mortgage of the 7th 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.

4. The defendants first party, who are the widow and son of Chiranji Lal pleaded that under the agreement and sale-deed, dated respectively the 7th and 6th January 1913, they had paid off a sum of Rs. 2,500 to the defendants second party on account of the balance due to the mortgagee and were no longer liable. This defence succeeded in the Court below and the suit was dismissed against the defendants first party.

5. The suit succeeded against the defendants second party alone and a simple money decree for Rs. 5,000 odd was granted against them. In appeal it has been contended that in effect the suit was one for contribution and a proportionate decree ought to be made against the defendants first party and the defendants second party and their mortgagees. There can be no doubt that the plaintiff claimed too much in asking that the entire money paid by him should come out of the property held by others than himself. But the facts being almost all admitted or established, it would not be too much for the plaintiff to ask for a decree by way of contribution against such properties as may be found liable. The change in the pleadings is really not such as would disentitle the plaintiff to any relief. Indeed, it was clearly conceived at a very early stage of the suit that the only remedy of the plaintiff was by way of contribution and Mr. Tufail Ahmad, who first heard the case, did make a decree for contribution. The decree, having been passed ex parte against Mt. Rukmin kunwar, was subsequently set aside at her instance and the case was tried afresh.

6. Coming to the merits of the case, the question arises whether the plaintiff is entitled to any contribution from the defendants first party-Mt. Rukmin Kunwar and her son. It may be stated at the outset that the finding of the learned Judge of the Court below that any payment made by Mt. Rukmin Kunwar to the defendants second party was made within the knowledge of the plaintiff and that the plaintiff is bound by the payment cannot be substantiated. We have been taken through the evidence. All that has been established is that the plaintiff is a distant relation of the defendants second party, but this cannot affect the plaintiff. The question them remains whether on account of the stipulations in the sale-deed and the agreement dated respectively 6th and 7th January 1913, the liability of that two shops that still remained with the original mortgagor, to contribute towards the mortgage money was excluded. In other words, the question is whether the statutory charge given by Section 56 of the Transfer of Property Act on those shops for the mortgage money due to Ram Kishun Das has been negatived by an express or implied contract.

7. There can be no doubt that under Section 82 of the Transfer of Property Act the two shops became at once liable to contribute rateably towards the mortgage money of Ram Kishun Das. When the zamindari property was purchased by the defendants second party, they and Chiranji Lal were the only people who held the mortgaged properties with the necessary liability of contribution. Section 56 of the Transfer of Property Act is but an extension of the principle of contribution as laid down in Section 82 of the Transfer of Property Act. As between the vendor and the vendees, viz., Chiranji Lal on the one hand and Ranbir Singh and Raghuraj Singh on the other, it was open to them to enter into a stipulation by which, expressly or by implication, to contact themselves out of the statutory charge given by Section 56. We have, therefore, to see whether there is any such ‘contract to the contrary’ as is contemplated by Section 56.

8. It is always difficult to interpret one document by another. Accordingly cases where the question has been decided, whether particular contracts were not contrary to the implied contracts given by the statute, will be of very little use in the present case. It may, however be pointed out that the Privy Council in Webb v. Macpherson (1904) 31 Cal 57 said at p. 72 as follows:

We have to find something either express contract or at least something from which it is a necessary implication that such a contract exists in order to exclude the charge given by the statute. In their Lordships opinion there is no ground for saying that the charge is excluded by a mere personal contract to defer payment of a portion of the purchase money or to take the purchase money by instalments nor it is in their Lordships’ opinion excluded by a contract convenient or agreement with respect to the purchase money which is not inconsistent with the continuance of a charge.

9. In the case before their Lordships a certain property had been sold and a portion of the purchase money was left unpaid. It was agreed that it would be paid by instalments. On the question being raised whether such a stipulation, viz., the payment of the balance of the purchase money by instalments, amounted to an express or implied contract to exclude the statutory charge given by Section 55 of the Transfer of Property Act, their Lordships said that it did not. All the remarks of their Lordships quoted above must be read in conjunction with the facts of the case. The remarks of their Lordships no doubt furnish a guide for solution of other cases but every document will have to be interpreted on its own merits.

10. In the case before us as already briefly indicated the stipulation between the parties was this. A sum of Rs. 19,000 out of the purchase money was left with the vendees for payment to the mortgagee. A question arose what would be the consequence if the sum was not paid promptly by the vendees and what would be the consequence if the amount payable to the mortgagee was found to be more than the sum of Rs. 19,000 and if therefore the vendees have to pay that sum to the mortgagee in order to save the property purchased by them. As to the former, by their agreement the vendees agreed that they would indemnify the vendors for any loss suffered by the vendors on account of their neglect and delay. As to the second point, the mortgagor said in the sale deed: “if the vendees have to pay more than Rs. 19,000 they shall be at liberty to realize the excess paid by them with interest at the rate of 8% per mensem with costs from person and the property of all sorts.”

11. Thus the agreement was that the vendees would pay up the mortgage money at once, but if they had to pay anything more than Rs. 19,000, the balance due at the date of the sale would be payable by the vendor personally along with interest at 8% per annum and costs. It is clear that the contingency contemplated by Section 56 was in the mind of the parties. It is not clear whether they knew, that the statute gave a charge to the vendees over the unsold property. But whether they knew of it or not, they selected the remedy of one against the other, and to my mind it is clear that they intended that remedy should be the only remedy of one party against the other. The statutory charge under Section 58 does not provide for any payment of interest nor does it provide for payment of any costs. It cannot be said that the vendor agreed that he would be not-only under the statutory charge but also for interest and costs in addition.

12. The statutory charge had far reaching consequences. It meant that however much delay there might be in the payment of the mortgage debt the charge would continue and it would be good enough for recovery of any amount, however excessive, that may accrue due under the mortgage at any distant date, We see in the present case itself that the plaintiff had to pay nearly Rs. 6,000 to satisfy the decretal amount and he claims contribution having regard to that amount. If he has a statutory charge he would be entitled to enforce it although the vendor and vendees, under the sale deed of the 6th of January 1913, stipulated for the vendor’s liability being limited to only so much money as was on that date payable to Ram Kishun on account of the mortgage of 1907 As I read the agreement and the sale-deed the sum of Rs. 19,000 was to be paid in at once and the vendor made himself liable only for the difference as calculated on the date of the sale. He never contemplated that however much delay there might be (in the present case the payment was made no less than six years after the sale) his shops would be liable to pay the difference.

13. In my opinion the vendor limited his liability to a particular sum but made himself personally liable and therefore, not only the two shops mortgaged became liable to be taken in execution to enforce the payment but all other properties of the vendor. Taking all these circumstances of the case I am clearly of opinion that by necessary implication the stipulation in this case as contained in the two contemporaneous deeds of sale and agreement excluded the charge provided by Section 56 of the Transfer of Property Act.

14. I may point out that a Bench of this Court in Ram Chandra v. Bhagwati AIR 1924 All 937 took a similar view of the contract than before them with regard to the statutory contract contained in Section 55 of the Transfer of Property Act. But, as already remarked above, it is impossible to read a contract; by the language of another contract.

15. The events that have happened in this case will illustrate the mischief of any finding to the contrary to the one stated above. In pursuance of the agreement between the vendor and the vendees, as contained in the sale-deed of the 6th January 1913, the vendees Ranbir Singh and Raghuraj Singh have recovered a sum of Rs. 2,500 frow the defendants first party. If we hold that the defendants first party are still to contribute out of their two shops originally mortgaged, the defendants first party will have to pay a still larger amount than already paid by them to the plaintiff. It is true that it was not the defendants second party who had satisfied the decree of Raja Moti Chand and others. But certainly a representative in interest of theirs had satisfied the decree and the defendants second party were entitled to call upon the representative of their vendor to abide by the contract. The vendees could very well say that after fall the money had come out of the property purchased by them and the vendor or his representatives were liable to make good the stipulation entered into by the former. I hold that the defendants first party are not liable to contribute and suit, as against them, was rightly dismissed, although on grounds other than those given by me in this judgment.

16. Next comes the question of liability of the defendants other than the defendants first party. The right of contribution arose, under the law, as soon as the mortgage-deed of 1907 was executed. Although the liability of the shops was impliedly negatived by a contract between the only parties then interested in the question of contribution, by the contracts of the 6th and 7th January 1913, the liability of every bit of the zamindari share remained unimpaired. The result is that 1 3/4 odd biswas share still remained in the hands of the defendants second party and their mortgagees, the remaining defendants, and is liable to contribute in proportion to its value.

17. The position then is this: Under the mortgage of 1907 a liability arose on three properties to contribute proportionately, viz. (1) two shops, (2) a two-biswa share, (3) a 13/4 an odd biswa share. The amount paid by the plaintiff must be distributed over these properties, and although the amount otherwise payable by the two shops has ceased to become payable, the third item of the properties must contribute, its own share the plaintiff’s property two biswas bearing its own proportionate share. The plaintiff paid on the 19th December 1919 a sum of Rs. 6,008-13-0. Out of this a sum of Rs. 5,692-13-0 was paid on account of the decretal amount. It is for this amount alone that the plaintiff can claim contribution. The remaining Sum he paid as penalty and as the commission for the sale. There was no obligation on the plaintiff to wait for payment; till the sale had taken place. He cannot therefore recover anything that he had to pay over and above the decretal amount.

18. The Court below has not come to any findings as to what are the liabilities of the three items of property mentioned above. I have looked into the evidence in the case and have come to the conclusion that the zamindari property and the two shops were really of equal value. I notice that Mr. Tufail Ahmad was of the same opinion in his judgment dated 31st January 1922, since set aside. That being so, the liability of the shops would amount to Rs. 2,846-6-6. A similar liability falls on the zamindari property. Dividing this between the plaintiff’s property and the remaining share more or less, roughly, in the proportion of 8 to 7, the liability of the property in the hands of the defendants second to fourth parties is Rs. 1,323.

19. The original mortgage carried an interest of 6% par annum and the plaintiff cannot claim anything higher than that. The interest at 6% per annum, between the date of the payment in Court by the plaintiff (19th December 1919) and the date of the suit (viz., the 11th of June 1919) comes to Rs. 126. Thus the plaintiff is entitled to recover a sum of Rs. 1,449 only by sale of the property in the hands of the defendants other than the defendants first party, viz., 1 biswa 15 biswansi 1 tanwansi and 9 3/4 kachwansi zamidari property detailed at the foot of the plaint. The plaintiff has already got a decree for recovery of Rs. 5,333-5-0, personally against the Defendants 3 and 4 only. These defendants have not filed any cross-objection and have submitted to the decree. It is therefore for the plaintiff to decide whether he would have a decree for the sale of the aforesaid property for the sum mentioned with interest during the pendency of the suit and future interest at 6% or whether he will have the decree already obtained by him.

20. After we had written out a draft judgment on the above lines, we asked the learned Counsel for the parties to re-argue the case in view of the opinion tentatively put down in the draft. We were of opinion, subject to hearing the learned Counsellor the appellant again, that the appellant could not get a decree for more than Rs. 1,449 odd by sale of 1 3/4 biswa share in village Surjawali.

21. The learned Counsel for the appellant M, Dar has argued that by applying S 56 of the Transfer of Property Act, as between the plaintiff and his vendors, the whole of the sum paid by the plaintiff should come out of the 1 3/4 ths share left in the hands of the defendants second party and his transferees, the defendants third party. We have considered this point, but we are clearly of opinion that even if Section 56 were applied, the utmost that we could give to the plaintiff was a decree for one-half of the money paid by him (subject to deductions indicated in the draft judgment) and no more, as the entire liability of the 3 3/4 biswa share was for only one-half of the original mortgage money and no more. That being so, Mr. Dar has intimated to us that his client is not prepared to forgo his decree for Rs. 5,000 odd and to accept a decree for a sum of about Rs. 3,000 although it may be recoverable by enforcement of a charge. In the circumstances, the appeal fails and it is hereby dismissed with costs.

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