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Patna High Court
Rani Bhubneshwari Kuer vs Manir Khan And Ors. on 24 May, 1928
Equivalent citations: 111 Ind Cas 84
Author: F Ali
Bench: Ross, F Ali

JUDGMENT

Fazi Ali, J.

1. (sic) framed, that the amount mentioned by the plaintiff as the Government revenue for the ijmali patti was incorrect, that the payments alleged to have been made by the plaintiff had not been made by her, and that in any case there was no charge on the property. It was further alleged that there had been an arrangement between Maharaja Mitarjit Singh ancestor and predecessor of the plaintiff and the ancestors of the defendants whereby the entire revenue was to be paid by the plaintiff’s ancestors and the defendants were not liable to pay any part thereof.

2. The learned Subordinate Judge overruled most of the pleas raised by the defendants; but he found that the payments made by the plaintiff could not in Law be treated as a charge on the property. He, therefore, held that the plaintiff was not entitled to get a mortgage-decree with a lien over the defendants share, and, that in view of the provisions of Article 99 of the Limitation Act all claims in respect of the Government revenue paid more than three years before the date of the suit were barred by limitation. On these findings the learned Subordinate Judge decreed the suit in respect of the claim for a period of three years only with interest thereon.

3. From this decision the plaintiff has appealed and the defendants have filed cross-objections.

4. The main question argued on behalf of the appellant was that it being established that the plaintiff had made the payments claimed on account of the defendants’ default, the Subordinate Judge was wrong in holding that no charge, had been created in favour of the plaintiff on the defendants’ share in the property in respect of such payments. This raises the question of law, namely, whether in cases where one co-sharer pays the Government revenue due from another co-sharer and thereby saves the estate from sale, the payment so made shall or shall not be treated as a charge on the property of the other co-sharers. The High Courts of Calcutta and Allahabad have both answered the question in the negative, and so far as they are concerned, the point was settled long ago by the Full Bench decisions in Kinu Ram Das v. Mozaffer Hosain Shaha 14 C. 809 : 7 Ind. Dec. (N.S.) 536 (F.B.) and Seth Chitor Mal v. Shib Lal 14 A. 273 : A.W.N. (1892) 117 : 7 Ind. Dec. (N.S.) 544 (F.B.).

5. It is, however, strenuously urged by the learned Advocate for the appellants that we are not bound to follow these decisions and that we should examine the question raised for ourselves for the following reasons:

(1) There is a later Full Bench decision of the Madras High Court [Rajah of Vizianagaram v. Rajah Setrucherla Somasekararaz 26 M. 686 : 13 M.L.J. 83 (F.B.)] in which a contrary view has been taken and the decisions of the Calcutta and the Allahabad High Courts have been criticized and dissented from.

(2) A number of eminent Judges have from time to time taken a view which is contrary to the decisions of the Allahabad and Calcutta High Courts and favours the view taken by the Madras High Court.

(3) There is no reported decision of this Court dealing with the question and it is desirable that the matter should be decided so far as this Court is concerned.

6. In view of these contentions and also because the question raised is of some importance, I propose to deal with the matter at some length and to review some of the decisions on the point before stating my own views on the subject.

7. The earliest cases on the point which can be traced are certain decisions of the Sudder Dewani Adalat which support the view which has been subsequently expressed in the Calcutta Full Bench case and lay down the principle that when one co-owner pays Government revenue for another the right of the co-owner in such a case is limited to a personal suit for contribution and carries no charge on the property. [See David Andrew v. Helen Harris 8 S.D.A.R. 697 : 12 Ind. Dec. (O.S.) 542, Somekolee, Koonwar v. Sheikh Ezhar Hossein 11 S.D.A.R. 44 : 14 Ind. Dac. (O.S.) 33, Govindpersaud Pundit v. Soondree Koonwar Debea 12 S.D.A.R. 867 : 15 Ind. Dec. (O.S.) 286 and Manik Mulla Chowdhrain v. Parbuttee Chowdhrain S.D.A.R. (1859) 515].

8. In 1867 the case of Nugenderchunder Ghose v. Kaminee, Dossee 11 M.I.A. 241 : 8 W.R.P.C. 17 : 2 Suth. P.C.J. 77 : 2 Sar. P.C.J. 275 : 20 E.R. 92 was decided by the Privy Council and one of the passages in the judgment which was delivered by Lord Romilly ruus as follows: “Considering that the payment of the revenue by the mortgagee will prevent the taluk from being sold, their Lordships would, if that were the sole question for their consideration, find it difficult to come to any other conclusion than that the person who had such an interest in the taluk as entitled him to pay the revenue due to the Government, and did actually pay it was thereby entitled to a charge on the taluk as against all persons interested therein for the amount of the money so paid.” As a result of the judicial construction which this passage received in the Calcutta High Court, it was held in several oases and this view prevailed for nearly two decades that one of the sharers in an estate paying Government revenue for another share was entitled to a declaration that the Government revenue paid by him on account of other shares was a charge on those shares; vide Syed Enayet Hossein v. Muddun Moonee Shahoon 14 B.L.R. 155 : 22 W.R. 411, Ram Dutt Singh v. Horakh Narain Singh 6 C. 549 : 8 C.L.R. 209 : 3 Ind. Dec. (N.S.) 357 and Nobin Chunder Roy v. Rup Lall 9 C. 377 : 11 C.L.R. 499 : 4 Ind. Dec. (N.S.) 900.

9. In the case, however, of Kristo Mohinee Dossee v. Kaliprosono Ghose 8 C. 402 : 6 Ind. Jur. 473 : 4 Ind. Dec. (N.S.) 257, Garth, C.J. and Pontifex, J., expressed grave doubts as to the correctness of the law laid down in the above decisions and Pontifex, J., while referring to them said as follows: “Had it been neeessary to deal with this question, we should, certainly have referred it to a Pull Bench; for we are not, as at present advised, at all satisfied as to the correctness of those decisions. They, no doubt, enunciate what at the first blush seems to be an attractive and catching equity; but it is difficult to see on what foundation such an equity could rest.”

10. In 1887 the case of Kinu Ram Das v. Mozaffer Hosain Shaha 14 C. 809 : 7 Ind. Dec. (N.S.) 536 (F.B.) came up before Wilson and O’Kinealy, JJ., and they referred the case to a Full Bench, one of the questions referred being “Whether fractional contribution of Government revenue can create any charge on the shares for which revenue was paid.” This question was answered in the negative by the majority of the Judges. Mitter and Morris, JJ., however, dissented from the viaw taken by the majority. The two principal judgments in the case in which the two conflicting view have been set out are those given by Wilson, and Mitter, JJ., respectively. One of the main arguments put forward by Mitter, J., for the view taken by him was as follows: “Generally a co-sharer defaults to pay his quota of Government revenue when he is in insolvent circumstances. In these cases a mere personal decree against the defaulting co-sharer would be useless. On the other hand, if the principle laid down in that case (the case of Syed Enayet Hossein v. Muddun Moonee Shahoon 14 B.L.R. 155 : 22 W.R. 411 was referred to) be adopted, I cannot conceive of any instance in which injustice is likely to be done to any party. In cases not governed by any particular legislative enactment, Courts in this country are directed by the Legislature to act according to justice, equity and good conscience. It seems to me that if in this case we give effect to a principle which prevents injustice in many cases and in no conceivable case operates unjustly, which has been acted upon for more than twelve years and which has been adopted by the Legislature in cognate subjects, we shall be strictly following the direction of the Legislature referred to above.” On the other hand, Wilson, J., giving the contrary opinion reasoned as follows: “I think it is settled that, according to the rules of equity in force in England, no such lien as that contended for exists. The same rule was consistently applied in the Court of Sudder Dewani. The recent cases in this country, in which a different view has been taken, have been based upon what seems to me to be a misapprehension of the meaning of the dictum of the Privy Council in the ease referred to. And there are strong indications of an intention on the part of the Legislature inconsistent with such lien. We are not, under these circumstances, in my opinion, at liberty to treat the matter as if it were res integra, and under the name of equity and good conscience, to adopt whatever rule we think most likely to work well…. In the tangle of interests which an estate in this country presents–zemindari rights, tenures, and under-tenures without limit, every one of them commonly held in co-ownership, and every share of every interest perhaps subject to mortgages–I cannot pretend to foresee what the consequences maybe of broadly laying down such a doctrine as we are asked to do. I am disposed to think it a safer course to leave the Legislature to treat the matter as it may think fit.” This case closed the controversy so far as the Calcutta High Court is concerned.

11. In 1892 the same question being referred to a Fall Bench of the Allahabad Court by Edge, C.J., and Blair, J., the majority of the Judges approved the Full Banch decision of the Calcutta High Court in Kinu Ram Das v. Mozaffer Hosain Shaha 14 C. 809 : 7 Ind. Dec. (N.S.) 536 (F.B.) and held “that there was no general principle of equity to the effect that whoever, having an interest in an estate, made a payment in order to save the estate obtained a charge on the estate, and, therefore, in the absence of a statutory enactment, a co-sharer who paid the whole revenue and thus saved the estate did not by reason of such payment acquire a charge on the share of his defaulting co-sharer.” Edge, C. J., who delivered a long judgment in support of this view made the following observation in the course of his elaborate judgment: “Justice, equity and good conscience are captivating terms; but before a Judge applies what may appear to him at first sight to be in accordance with justice, equity, and good conscience, he must be careful to see that his views are based on sound general principles, and are not in conflict with the intentions of the Legislature or with sound principles, recognised by authority.” Mahmood, J., on the other hand, who gave his dissenting judgment, after dealing exhaustively with the various legal aspects of the question and the case law on the subject disposed of the main argument advanced against the view held by him as follows: “But what are we to gather from the silence of the Legislature ? As I understand the rules of the interpretation of Statutes, there is no more reason for holding that the Legislature by its silence intended to abrogate any doctrine of equity than there would be for holding that there is no law of torts in British India because the Legislature has not yet enacted upon the subject. And one thing is certain, that so long as Section 37 of the Civil Courts Act (Act XII of 1887) is allowed to stand in the Statute Book of the land (as I hope it will always do) the rale of ‘justice, equity, and good conscience’ must apply to all cases where there is no legislative enactment one way or the other.”

12. There are only two cases of the Bombay High Court which need be referred to. In Achut Ramchanda Pai v. Hari kamti 11 B. 313 : 11 Ind. Jur. 339 : 6 Ind. Dec. (N.S.) 205 Sir Charles Sargent, C.J., made the following observation: “The payment of the assessment by the part owner is by a person entitled to pay it, and who does so ex hypothesi under circumstances which make it necessary, in order to save the estate for himself and co-owners, and in either view of such payment, he becomes equitably entitled to a charge on the whole estate as against the other co-sharers; and if this be so, the mere circumstance that he has no existing charge on their shares at the time would appear to be no sufficient reason, in equity, justice, and good conscience, for not allowing him to realise the payment from the shares of his co-owners for their respective quotas…. We think that the Calcutta decisions, to which we have referred as recognizing a charge in those cases in which the assessment is paid by a part owner to save the estate are in accordance with equity, justice, and good conscience, and should be followed in this country.” It was, however, pointed out in the case of Shivrao Narayan v. Pandlik Bhaire 26 B. 437 : 4 Bom. L.R. 90 by Jenkins, C.J., that the observations of Sir Charles Sargent, were mere obiter dicta and Jenkins, C.J., expressed his own views as follows: “Now the charge for which the plaintiff contends has no sanction in the Laud Revenue Code, under which the assessment was paid, nor can it be referred to any contract: the plaintiff has to appeal to the principles of justice, equity, and good conscience, or in other words to the principles of English Law applicable to a similar state of circumstances…. Now, as a general rule, unsolicited expenditure in respect of the property of another, even if made for the purpose of its preservation, gives no lien outside maritime law…. In our opinion, then, there is no charge, and we come to this conclusion with the more confidence, as it is in accord with the Full Bench decision both of the Calcutta and Allahabad High Courts.”

13. The Madras High Court seems to have consistently held the opposite view. In Seshagiri v. Pichu 11 M. 452 : 4 Ind. Dec. (N.S.) 315 Kernan, J., reasoned as follows: “The lands of defendant No. 4 and the plaintiff are both liable to a common burden, neither of them can get his land free from the claim for the revenue Without paying the amount due on the whole lands…It would be against equity and good conscience that the common burden should be thrown exclusively on either lot of land or on either of the parties”. The question, however, was most exhaustively dealt within the case of Raja of Vizianagaram v. Raja Setrucherla Somasekararas 26 M. 686 : 13 M.L.J. 83 (F.B.). In this case there was a difference of opinion between Bhashyam Ayyangar, J. and Moore, J. and the case was referred to a Full Bench which upheld the view o Bhashyam Ayyangar, J., and held that where one of two or more co-sharers owing an estate subject to the payment of revenue to Government paid the whole revenue in order to save, and so did save, the estate from liability to be sold by Government for realising the arrears of revenue, he was entitled to a charge upon the share of each of his co-sharers for the realisation of the latter’s share of the revenue as between the co-sharers.

14. A mere general survey of the decisions referred to above is enough to show that the question is not free from difficulty. Bat on a careful consideration of all the arguments for and against the two conflicting views. I am inclined to agree with the view taken by the Calcutta High Court in Kinu Ram’s case 14 C. 809 : 7 Ind. Dec. (N.S.) 536 (F.B.) which is also supported by the decisions of the Allahabad and Bombay High Courts. It is clear that there is no express statutory enactment providing a charge such as that claimed in this Case by the plaintiff, nor is the claim founded on any contract express or implied Again it cannot be contended that the plaintiff is without any remedy in the matter because it is well-settled law that in a case like this the plaintiff is entitled to claim contribution and get a personal decree against the other co sharers for the amount spent by her on their account That being so, and because no case of any special hardship is disclosed, I do not see any occasion for invoking the so called principles of justice, equity and good conscience in favour of the plaintiff. After all the plaintiff has incurred only unsolicited expenditure in this case and her main object in incurring it was to save her own estate. It is true that in saving her estate she had to save the estate of the co-sharers also. But the fact remains that she was impelled, in the first instance, by self-interest and not by any philanthropic desire to save the property of others.

15. In Falcke v. Scottish Imperial Insurance Co. (1887) 34 Ch. D. 234 at p. 241 : 56 L.J. Ch. 707 : 56 L.T. 220 : 35 W.R. 143 Cotton, L.J., observed as follows: “A man by making a payment in respect of property belonging to another, if he does so without request, is not entitled to any lien or charge on that property for such payment”; and in the same case Bowen, L. J., also observed: “The general principle is, beyond all question, that work and labour done or money expended by one man to preserve or benefit the property of another do not according to English Law create any lien upon the property saved or benefited, nor, even if standing alone, create any obligation to re-pay the expenditure. Liabilities are not to be forced upon people behind their backs any more than you can confer a benefit upon a man against his will.”

16. Again in In re Leslie, Lesile v. French (1883) 23 Ch. D. 552 : 52 L.J. Ch. 762 : 48 L.T. 564 : 31 W.R. 561 Fry, L.J., in dealing with the payment of premiums on a policy of life insurance by a stranger or part-owner laid down the proposition that only in the following four cases a lien could be claimed by a person who paid money in order to preserve the property of another:

(a) By contract with the beneficial owner.

(b) By reason of the right of trustees to an indemnity for money expended by them in preserving the trust property.

(c) By subrogation to the rights of the trustees of some person who at their request has advanced money to preserve the property.

(d) By reason of the right of a mortgagee to add to his security money expended in preserving the mortgaged property.

17. It is sometimes said that these propositions are not exhaustive and is one instance at least the language is said to be too wide. But they do indicate broadly the eases in which the lien is or ought to be generally allowed.

18. These observations by three eminent English Judges will be enough to show that Wilson, J., was not far wrong when he said in Kinu Ram’s case 14 C. 809 : 7 Ind. Dec. (N.S.) 536 (F.B.), that “according to the rules of equity in force in England no such lien as that contended for existed.” It is true that Hitter, J. cited a number of Irish decisions in Kinu Ram’s case 14 C. 809 : 7 Ind. Dec. (N.S.) 536 (F.B.) in support of his view but when the balance of authority both in England and in this country is against the view taken in the Full Bench case of Madras, I cannot be persuaded to accept the Madras view and disagree with the view of the other Courts.

19. Again the question whether a charge is to be allowed or not is intimately bound up with the question as to whether it is Article 99 or Article 132 of the Limitation Act which is applicable to such cases or, in other words, whether the period of limitation is three or twelve years. If we carefully study the facts of the reported cases in this connection it becomes absolutely clear that this is the real and practical side of the controversy. In other words if a charge is recognised, the plaintiff has clearly a right to sue within twelve years, if only a suit for contribution lies the plaintiff ought to sue within three years. One of the inevitable results, therefore, in actual practice if we take the view in favour of the charge, will be that it will encourge the person who is entitled to the charge to wait for the full period permitted and allow his dues to swell and accumulate till it becomes such a heavy burden on the estate charged, that the owner may be compelled to part with it. The present case will serve as a very good illustration. Here it was open to the plaintiff to have a separate account opened in her name at any time. But she has preferred to make payments from year to year on behalf of the defendants and then after more than eleven years comes to Court and claims a charge on their property. Now, it is a well recognised principle that equity aids only those who are vigilant and I cannot persuade myself to hold that we are justified in applying the principles of equity to create a right which is, as a rule, claimed by those only who are in no hurry to seek the relief to which they maybe entitled and the exercise of which is likely in actual practice to lead. to consequences which will be altogether repugnant to equity.

20. It was argued by Mr. S.M. Mullick that the charge claimed by him in this case was in the nature of the “salvage lien.” “Salvage” has been explained as a compensation allowed by Maritime Law to those by whose exertions, ships or goods have been saved from the dangers of the seas, fire, pirates and enemies (Wharton’s Law Lexicon, 13th Edition, page 766). It is said that on the analogy of the salvage lien allowed by the Maritime Law one who saves the estate of others from the peril of a revenue sale is entitled to a charge on the estate, There is no doubt that the Irish Courts have favoured the view that the principle of salvage is applicable even outside the Maritime Law. And in fact Mahmood, J. dealing with this question at great length [Seth Chitor Mal v. Shib Lal 14 A. 273 : A.W.N. (1892) 117 : 7 Ind. Dec. (N.S.) 544 (F.B.)] refers in graphic language to the perils of the land and sees no difference in principle between salvage lien and the charge claimed by a co-owner when he saves the property of another co owner by paying his share of the Government revenue. Sir Rash Behari Ghose also throws the weight of his great authority on the same side. (The Law of Mortgage, Vol. I, pages 122 to 126). To me, however, it appears on a close analysis that the charge or lien claimed in the present and similar cases bears no real analogy to the “salvage lien” and an appeal to the Maritime Law does not advance the appellant’s case at all. It is easy to understand the argument when it is said that the charge claimed rests on equitable grounds. If, however, it is meant to be argued that the Maritime Law of salvage creates a new and independent principle which should be freely extended to cases outside Maritime Law, it becomes necessary to refer to the observations of Bowen, L.J., and Fry, L.J. in the two English cases cited above. Lord Bowen said as follows: “Liabilities are not to be forced upon people behind their backs any more than you can confer a benefit upon a man against his will. There is an exception to this proposition in the Maritime Law. I mention it because the word ‘salvage’ has been used from time to time throughout the argument, and some analogy is sought to be established between salvage and the right claimed by the respondents, With regard to salvage…and contribution, the Maritime Law differs from the common Law. That has been so from the time of the Roman Law downwards. The Maritime Law, for the purpose of public policy and for the advantage of trade, imposes in these cases a liability upon the thing saved, a liability which is a special consequence arising out of the character of mercantile enterprises, the nature of sea perils, and the fact that the thing saved was saved under great stress and exceptional circumstances No similar doctrine apples to things lost upon land, nor to anything except ships or goods in peril at sea.” Fry, L. J. again ob-served as follows: “I would make only one other observation. We have heard a great deal on both sides what has been called the doctrine of salvage. I like Vice Chancellor Kindersley, exceedingly doubt whether that word can with any propriety be applied to cases of this description. With regard to salvage in the case of ships and maritime perils, we know its meaning. It appears that the expression ‘salvage moneys’ as we are informed by one of the learned Counsel for the appellant, and I dare say he is quite right, fust occurs in the report of the case of In re Tharp (1852) 2 Sm. & Giff. 578 : 65 E.R. 533 : 97 R.R. 323 which was before Lord St. Leonards in 1852, where he seems to have used the expression as one familiar to the Irish Courts in certain cases. I certainly wish that the expression had remained on the other side of the Channel where it seems to have arisen. I doubt whether any doctrine which is expressed by the word ‘ salvage ‘ applies to cases of this description.” Even Sir Eash Behari Ghose would not push the analogy of the maritime salvage too far. The following extract will illustrate his views “As Lord Justice Bowen pointed out the Maritime Law for the purposes of public policy and for the advantages of trade impases a liability upon the thing saved…. But in cases not governed by Maritime Law, the owner of the saved property is not under any liability to re-pay any money which may have been spent by a mere volunteer. But where a person has an interest in the preservation of the property any payment made by him is compulsory, and there is nothing unfair in allowing him a lien for such payment when but for it the property would have been lost to every one concerned.” It may be pointed out with respect that if the charge claimed is founded wholly on the principle of the Maritime Law of salvage it is difficult to see why any distinction should be drawn between cases in which the person who saved the property is a volunteer having no interest in it and those in which he has an interest in the property and makes compulsory payments and that a charge on the property should be disallowed in the former case and allowed in the latter. In fact the very essence of salvage service as it is understood in Maritime Law is that it must be voluntary. It is described in these words in Hanbury’s Laws of England, Vol. 26, page 557:

“Salvage service is that service which saves or contributes to the ultimate safety of a vessel, her apparel, cago or wreck, or to the lives of parsons belonging to a vessel when in danger at sea, or tidal waters, or on the shores of the sea or tidal waters, provided that such service is rendered voluntarily and not in the performance of any legal or official duty or merely in the interest of self” preservation.” On this principle the crew of a ship are not entitled to salvage or any unusual remuneration for extraordinary efforts they have made in saving her, it being their duty as well as interest to con-tribute their utmost upon such occasions (Wharton’s Law Lexicon, page 766). Thus the principle of maritime salvage, if strictly applied, will negative rather than support the existence of a lien or charge in cases where the service rendered or, as in this case, the payment made is neither voluntary nor disinterested but is rendered under compulsion and to save one’s own property.

21. Mr. S.M. Mullick next contends that a charge would be created in this case in favour of the plaintiff by the operation of law and he refers in this connection to the provisions of Sections 82, 95 and 100 of the Transfer of Property Act. The argument is not a new one, it was suggested by Bhashyam Ayyangar, J., in the case of Raja of Vizianagaram v. Rajah Setrucherla Somasekararat 26 B. 437 : 4 Bom. L.R. 90 in the following words: “The appeal has not been argued as it ought to have been with reference to Sections 82 and 100 of the Transfer of Property Act. These two sections throw a flood of light on the question under consideration if they are not decisive of the same in favour of the appellant’s position.” And again “I may also advert to Section 95 of the Transfer of Property Act…which provides for an analogous charge in favour of one of several mortgagors, redeeming the mortgage, on the share of each of the other co-mortgagors.” The suggestion of Bhashyam Ayyaugar, J., seems to have been adopted by the Counsel for the appellant when the case was argued before the Full Bench. The matter was, however, disposed of as follows by Subrahmania Ayyar, J.: “In the argument before us it was contended that Section 100 of the Transfer of Property Act read with Section 82 gave the appellants the charge claimed. The point is to my mind not quite free from doubt.” Even Bhashyam Ayyangar, J., refrained from expressing any definite opinion as to the effect of Sections 82 and 100. He says: ” The question of interpretation not having, as far as I am aware, been judicially considered in any case and not< having been argued before us in the present case, I refrain from expressing any decided opinion on the point either way." With regard to Section 95 of the Transfer of Pro-party Act, the observations of Bhashyam Ayyangar, J., are as follows: "Such charge (charge contemplated by Section 95) being restricted to cases in which the redeeming mortgagor obtains possession of the mortgaged property, that section does not bear so directly upon the present question as do Sections 82 and 100.” Again in dealing with the effect of Section 100 of the Transfer of Property Act, Edge, C.J., observed as follows (page 284 Page of 14 A. — [Ed]): “Section 100 of the Transfer of Property Act, 1882, would not apply, unless the property the subject of this suit was ‘by act of parties or operation of law made security for the payment’ to the plaintiff of the j money paid by him in respect of the arrears. No such ‘act of parties’ is alleged so far as I can see, the property was not by operation of law made security for any payment to the plaintiff.” In my opinion it is putting the case too high to say that a charge is created in favour of, the plaintiff by the direct operation of Sections 82 and 100 of the Transfer of Property Act. It is more legitimate to put it as Bhashyam Ayyangar, J., put it when he said “the lien in question rests upon an equitable doctrine, which also underlies Sections 82 and 100 of the Transfer of Property Act, if not in terms covered by it.”

22. In other words the utmost that can be said is that these sections merely provide an analogy or illustration in which a charge is recognised by law and are, therefore, neither more helpful nor less helpful than other enactments like Section 13 of Regulation VIII of 1819, Section 9 of Act XI of 1859 and Section 171 of the Bengal Tenancy Act which provide a charge or lien similar to the one claimed in this case. The argument that because there are similar liens in other cases, there must be one in the present case carries us no further than the reply to it that if the Legislature intended to create a charge in a case like the present it would have made a specific provision as has been done in other cases. Wilson, J. See 14 C. 809 at p. 830–[Ed.] in dealing with the question has put the matter so well that I cannot refrain from quoting his own words. He says: “I do not think any strong inference can be drawn from such enactments as these, either for or against the general principle coateaded for. I certainly think none can safely be drawn in favour of it; otherwise we should be led to the strange conclusion that wherever the Legislature has made a protective provision of this nature in a particular instance, we should have to infer from the very fact of its having been made that it is useless, because we should have to infer the existence of a general principle governing the case and rendering the specific enactment unnecessary.” Dealing with analogies it is necessary to refer to the following provision of Section 9 of Act XI of 1859 which has greater bearing upon the question under discussion than any other enactment. Section 9 says: “The Collector or other officer as aforesaid shall, at any time before sunset of the latest day of payment…receive as a deposit from any person not being a proprietor of the estate or share of an estate in arrear, the amount of the arrear of revenue due to be credited in payment of the .arrear at sunset as aforesaid, unless before that time the arrears shall have been paid by the defaulting proprietor of the estate…. And if the person so depositing, whose money shall have been credited as aforesaid, shall prove before a competent Civil Court that the deposit was made in order to protect an interest of the said person, which would have been endangered or damaged by the sale, or which he believed in good faith would have been endangered or damaged by the sale, he shall be entitled to recover the amount of the deposit, with or without interest as the Court may determine, from the defaulting proprietor. And if the party so depositing, whose money shall have been credited as aforesaid, shall prove before such a Court that the deposit was necessary in order to protect any lien he had on the estate or share or part thereof, the amount so credited shall be added to the amount of the original lien.” This provision and its relevancy to the question under consideration cannot be commented upon in more appropriate terms than those of Wilson, J., in the case of Kinu Ram Das v. Mozaffer Hosain Shah 14 C. 809 : 7 Ind. Dec. (N.S.) 536 (F.B.). “It could not” he says, of course he contended that an enactment which purports expressly to confer a narrow and limited right to necessity excludes a larger right, if the existence of the larger right is clearly established apart from the special enactment. But where the existence of a larger right is not clear but highly doubtful, I think the express creation of the narrower right tends largely to negative the existence of the larger. In Section 9 the Legislature dealing With two classes of persons says that one of them shall have a personal right of suit, and that the other shall have a lien besides. I think the inference is that the Legislature intended the section to represent the law, and that seems to me to go far to negative the doctrine now contended for, by which both classes alike would have a lien…. I have not overlooked the fact that the case of a part-owner is not dealt with in Section 9…but the doctrine contended for is general.”

23. The next argument advanced by Mr. Mullick is that it is only fair and logical that if any money is spent in saving an estate it should be charged on the estate rather than realised from the owner who may be unwilling to retain the estate or make the payment. Sir Rash Behari Ghose referring to this aspect of the matter says as follows: “Before dismissing Kinu Ram’s Case 14 C. 809 : 7 Ind. Dec. (N.S.) 536 (F.B.). I may observe that not only is a part-owner entitled in justice and equity to a lien, but that it is the only appropriate remedy, as the other owners are not bound to keep the property against their will.” He also quotes the following passage from Leigh v. Dickson (1885) 15 Q.B.D. 60 at p. 65 : 54 L.J.Q.B. 18 : 52 L.T. 790 : 33 W.R. 538: “If the law were otherwise a part-owner might be compelled to incur expense against his will: a house might be situate in a decaying borough and it might be thought by one co-owner that it would be better not to repair it.” There seems to be both logic and plausibility in the argument and it is for the Legislature to consider whether this will be a sufficient reason for some specific legislation on the point. In my opinion, however, this by itself is no ground for deciding in favour of the appellant and in fact when we pass on from theory to practice we find that this argument does not carry us very far. If it is true that the owner defaults in paying Government revenue because he finds that the property is not worth retaining, it will be no advantage to any one to claim a charge upon such useless property and I do not see why a charge on the property should be considered to be a more valuable remedy than a personal action for contribution. Yet we find in practice that in every case a charge on the property is insisted on in preference to the other remedy and this alone will show that the analogy of “a house in decaying borough” though a catching analogy for purposes of abstract reasoning is of little consequence when we are dealing with concrete cases. I do not mean to pay that there will not be any exceptions, but we are here concerned mainly with the rule.

24. I have thus considered the main arguments advanced in favour of the charge, lam not in a position to say that the arguments are not entitled to weight because they are arguments which carry the support of some of the most eminent Judges and a lawyer of the eminence of Sir Rash Behari Ghose. But I cannot overlook the weight of authority on the ether side and when I say so, I am referring to the authority of the Judges both in England as well as in this country. Broadly speaking to my mind, the question to be decided assumes this form in the absence of a specific enactment: are we to create a remedy in favour of a suitor on the principle of justice, equity and good conscience, when another remedy is already available to him and no case of real hardship is disclosed, and when the remedy asked for practically means a declaration that the suitor need not be vigilant but may wait for a period of twelve years, if he chooses to do so, before he avails himself of the remedy. I shall only say that I should have hesitated to answer this question in the affirmative even apart from the present state of conflict in the decisions of the various Courts. I have further to keep in view the rule of practice that has been emphasised in so many cases that the Patna High Court will not ordinarily depart from a long course of decisions in the Calcutta High Court, vide Abdul Gani v. Raja Ram 35 Ind. Cas. 468 : 1 P.L.J. 232 : 20 C.W.N. 829 : 3 P.L.W. 62 (F.B.) and Khoda Bukhsh v. Bahadur All 45 Ind. Cas. 203 : 3 P.L.J. 285 at p. 286 : (1918) Pat. 130 : 4 P.L.W. 324. I, therefore, hold that there is no charge created in favour of the plaintiff and it is Article 99 and not Article 132 of the Limitation Act which applies to the present case and that in this view the appeal must be dismissed.

25. The learned Advocate for the respondents has urged two principal points before us in dealing with his cross objections. His first contention is that a joint decree against all the defendants should not have been passed by the learned Subordinate Judge, because it is admitted that defendants Nos. 3 to 6 at least have a separate account in respect of 1 anna 10 dams and odd share in the villages Diayin Katari, Jharha and Patalkhati and a sum of Rs. 108-7-0 is fixed as the Government demand for that share. It appears that a separate account was opened in the year 1923, though there is no evidence as to what payment was made by these defendants in the previous years. But as the learned Advocate appears for all the defendants and is prepared to take a separate decree against these defendants for the three years in respect of which the suit has been decreed and also because the Advocate for the appellant has no objection to a separate decree being passed against them, I order that a separate decree be passed against defendants Nos. 3 to 6 for the three years in respect of which the suit has been decreed by the Subordinate Judge on the basis of the assessment of the Government demand under the separate account.

26. Another point raised on behalf of the respondent was that the learned Subordinate Judge should have proceeded upon rubkars (Exs. A and A-1) for determining the proportionate value of the villages in suit. The learned Subordinate Judge Bays that he cannot base his decision on these documents as they are about 100 years old and a good many changes have taken place since. His conclusions are summed up as follows:

As regards the question of valuation for determining the Government revenue for the villages in suit and for defendants’ share it is clear that these defendants have produced not a scrap of paper to prove the proportionate value of these mouzas in suit. In the absence of other materials for finding the proportionate valuations of these villages in suit it is clear that the valuation fixed by the Cess Department is a very fair basis for determining the valuation of these mouzas as compared to that of the entire touzi vide, Exs. 12, 12 (a) and 12(b) and 13 which contain valuations of these villages and the said touzis in accordance with the recentness valuation.

27. I agree with the learned Subordinate Judge that in the absence of any other evidence this was the only way of proceeding in the matter. We are then asked by the learned Advocate for the respondents to mention in our Judgment that our finding in this case will not debar the defendants from placing better evidence if they choose to do so on a future occasion before the Revenue Authorities or any other proper authority in order to have the proportionate valuations of the villages in suit determined on a more satisfactory basis. The learned Advocate for the appellant concedes that they cannot be prejudiced in any proceeding in future and I agree with him.

28. The result is that the appeal is dismissed with costs and the cross-appeal is partly allowed in the terms mentioned above in the judgment.

Ross, J.

30. I agree.


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