{"id":103222,"date":"1951-12-18T00:00:00","date_gmt":"1951-12-17T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/kidar-lall-seal-and-another-vs-hari-lall-seal-on-18-december-1951"},"modified":"2018-11-18T11:00:50","modified_gmt":"2018-11-18T05:30:50","slug":"kidar-lall-seal-and-another-vs-hari-lall-seal-on-18-december-1951","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/kidar-lall-seal-and-another-vs-hari-lall-seal-on-18-december-1951","title":{"rendered":"Kidar Lall Seal And Another vs Hari Lall Seal on 18 December, 1951"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Kidar Lall Seal And Another vs Hari Lall Seal on 18 December, 1951<\/div>\n
Equivalent citations: 1952 AIR 47, \t\t 1952 SCR 179<\/div>\n
Author: V Bose<\/div>\n
Bench: Bose, Vivian<\/div>\n
           PETITIONER:\nKIDAR LALL SEAL AND ANOTHER\n\n\tVs.\n\nRESPONDENT:\nHARI LALL SEAL.\n\nDATE OF JUDGMENT:\n18\/12\/1951\n\nBENCH:\nBOSE, VIVIAN\nBENCH:\nBOSE, VIVIAN\nFAZAL ALI, SAIYID\n\nCITATION:\n 1952 AIR   47\t\t  1952 SCR  179\n CITATOR INFO :\n D\t    1971 SC2177\t (7)\n RF\t    1978 SC1329\t (28)\n\n\nACT:\n Transfer of Property Act (IV of 1882), ss. 82,\t 92--Indian\nContract   Act (IX of 1872),  s.  43--Mortgage--Contribution\nbetween\t  co-mortgagors--Liability  to\t contribute--Whether\nproportionate  to value of properties mortgaged, or  benefit\nderived by each mortgager- General and special\tlaw--Equita-\nble considerations.\n\n\n\nHEADNOTE:\n    The\t right to contribution as between  co-mortgagors  is\ngoverned  by ss. 82 and 92 of the Transfer of  Property\t Act\nand not by s. 43 of the Indian Contract Act, inasmuch as  s.\n43 of the Contract Act deals with contracts generally, while\nss.  82 and 92 of the Transfer of Property Act\tspecifically\ndeal  with the right of contribution between  co-mortgagors.\nIt is an established principle that when there is a  general\nlaw,  and  a special dealing with a particular\tmatter,\t the\nspecial excludes the general. Consequently, in the absence a\ncontract  to the contrary, co-mortgagors are bound  to\tcon-\ntribute proportionately to the value of the shares or  parts\nof  the mortgaged property owned by them and not in  propor-\ntion to the extent of the benefits derived by each of them.\nAs ss. 82 and 92 of the Transfer. of Property Act  prescribe\nthe  conditions\t in which contribution is payable  in  India\nwhen there is a mortgage, it is not proper to introduce into\nthe matter extrinisic principles based on equitable  consid-\nerations.\n\n\n\nJUDGMENT:\n<\/pre>\n
   CIVIL  APPELLATE  JURISDICTION: Civil Appeal No.  101  of
\n1950.  Appeal by special leave from the Judgment and  Decree
\ndated the 20th September, 1949, of the High Court of Judica-
\nture  at Calcutta (Hurries C.J.and Chatterice J.) in  Appeal
\nNo. 46 of 1949 arising out of Decree dated the 31st  August,
\n1948,  of  the Hon’ble S.B. Sinha J. of\t the  Calcutta\tHigh
\nCourt  in  Suit\t No.  343  of  1943  instituted\t under\t the
\nOriginal Jurisdiction of the High Court).
\n  M.C.\t   Setalvad,\t Attorney-General     for      India
\n(B. Sen,with him) for the appellant.\n<\/p>\n
  S.C.\t Isaac\t (B.   Barterice,   with   him)\t  for\t the
\nrespond-\n<\/p>\n
ent.\n<\/p>\n
     1951. December 18.\t The leading judgment was  delivered
\nby Bose J. Fazl Ali J. agreed,
\n180<\/span>
\n     Bose  J.–This  is a defendant’s appeal in a  suit\t for
\ncontribution  brought by the son of a mortgagor against\t the
\nco-mortgagors.\n<\/p>\n
    The parties are related as below :–\n<\/p>\n
\t\t  Balai Lall Seal
\n\t\t    (died1917)
\n\t\t\tI
\n\t\t Megharnala Dassi
\n\t\t    (died 1945)
\n    I\t\t  I\t\tI\t   I\t      I
\nBejoy Lall   Biswa Lall\t Tarak Lall   Kedar Lall   NakuLall
\n (D. 23-5-33)\t      (D. Nov. 1936)  Deft 1\t   Deft. 2
\n\t\t\t\t      (Born\t   (Born
\n    I\t\t\t     I
\n Jugal Lall\t\tHari Lall     22-11-1907)  7-2-1910)
\n\t\t\t(Plff.)
\n   The mortgagors were the plaintiff’s father Tarak Lall and
\nTarak’s\t two brothers Kedar and Naku. The mortgage was\texe-
\ncuted on the 12th June, 1936, in favour of one\tMst.  Gyarsi
\nfor  a consideration of Rs. 80,000.  For convenience I\twill
\ncall this the suit mortgage though this is not a suit on the
\nmortgage.\n<\/p>\n
    The\t mortgagee  sued  in the year 1938  and\t obtained  a
\npreliminary  decree for sale on the 17th of February,  1939,
\nfor  a\tsum of Rs. 89,485-12-9 plus costs.  The\t decree\t was
\nmade final on the 22nd of December, 1989.
\n    In execution the mortgagee proceeded against the proper-
\nty  of the plaintiff alone (as Tarak’s son) and, during\t the
\npendency of the execution, assigned her rights in the decree
\nto the Hooghly Flour Mills.  The Mills continued the  execu-
\ntion and on the 11th of March, 1943, the claim was satisfied
\nin this way.\n<\/p>\n
    An order of the Court was obtained sanctioning sale of a
\npart  of the mortgaged property, 20 Round Tank\tLane  (which
\nbelonged exclusively to the plaintiff), to the decree-holder
\nfor a sum of Rs. 1,50,000.  It was directed that the consid-
\neration should first be applied in payment of the claim\t and
\ncosts  and that the decreeholder should execute a  reconvey-
\nance  of the rest of the mortgaged properties in  favour  of
\nthe  mortgagors.  The sanction of the  Court  was  necessary
\nbecause\t the judgment-debtor Hari Lall\t(present  plaintiff)
\nwas a minor.\n<\/p>\n
181<\/span><\/p>\n
    This  was done and 20, Round Tank Lane, was conveyed  by
\nthe  present  plaintiff to the Hooghly Flour  Mills  on\t the
\n18th  of March, 1943. Out of the consideration a sum of\t Rs.
\n97,116-11-0  was paid to the Mills in lull  satisfaction  of
\nthe claim and costs then outstanding.  The Mills executed  a
\nreconveyance of the rest of the properties to the mortgagors
\nin release of the mortgage on the same day.
\n    In\taddition to this Rs. 97, 116-11-0, further  sums  of
\nRs. 14,400 and Rs. 8,100 had also been paid before the dates
\nof  these transactions.\t These sums were paid by a  Receiver
\nwho  had been appointed by the Court pendente  lite.   These
\nsums came out of the rents which the Receiver obtained\tfrom
\nthe plaintiff’s property, 20 Round Tank Lane.
\n    The\t plaintiff says that in this way he paid a total  of
\nRs. 1,19,116-11-0 in satisfaction of the mortgage. His\tone-
\nthird share in this comes to Rs. 39,872-3-8. He claims\tthat
\nhe is entitled to receive the balance of Rs. 79,744-7-4 from
\nthe  two  defendants and that each of them is liable  for  a
\nhalf of that sum namely, Rs. 39,872-3-8.
\n    In\taddition  to this the plaintiff had  incurred  costs
\namounting to Rs. 1,144-8-6 in resisting Mst. Gyarsi’s  claim
\nand  in\t connection with the reconveyance.  He\talso  claims
\none-third of this sum, namely Rs. 381-8-2, from each of\t the
\ndefendants.  The total claim against each defendant  accord-
\ningly  comes  to Rs. 40,253-11-10. In addition to  this\t the
\nplaintiff asked for-\n<\/p>\n
    (1)\t “a  declaration that the  properties  mentioned  in
\nSchedule  ‘A’…belonging  to the defendants  stand  charged
\nwith the repayment of the  sum\tof  Rs. 80,507-7-8 being the
\naggregate amount due and payable by the two defendants,” and
\n    (2)\t “Decree  under Order XXXIV of the  Civil  Procedure
\nCode in proper form.”\n<\/p>\n
    Schedule A contains a list of the rest of the  mortgaged
\nproperties which belong exclusively to the defendants,
\n   24<\/span>
\n182<\/span>
\n   It  will be seen that the plaintiff claims on  the  basis
\nthat each of the three mortgagors is liable to contribute in
\nequal shares towards payment of the mortgage  debt.
\n  The defendants did not deny their liability to contribute.
\nThey only challenged the basis on which it was to be comput-
\ned.  They ,pleaded a special agreement between Tarak Lal and
\nthemselves  under which their liabilities were to be  calcu-
\nlated in the following way.  According to them, the bulk  of
\nthe  Rs. 80,000 was borrowed on what I have called the\tsuit
\nmortgage  to pay off previous debts which had been  incurred
\nby the parties on earlier mortgages.  The amount which\twent
\ntowards\t satisfaction  of the defendant’s portion  of  these
\nearlier liabilities was only Rs. 13,259-2-4. Therefore,\t the
\nonly  benefit they got out  of\tthis Rs. 80,000 was to\tthat
\nextent.\t  The  plaintiff’s father Tarak on  the\t other\thand
\nbenefitted to the extent of Rs. 53,481-11-4.  They therefore
\nagreed\tat the date of the suit mortgage that their  respec-
\ntive liabilities as between themselves should be proportion-
\nate to the benefit derived by each as above.\n<\/p>\n
     Sinha  J., who tried the suit on the Original  Side  of
\nthe Calcutta High Court, held that the agreement was proved.
\nOn  appeal the learned Chief Justice of the High  Court\t and
\nChatterjee  J.\tdisagreed and held that it was\tnot.   As  I
\nagree with the\tlearned appellate Judges for reasons which I
\nshall  give hereafter, it will be necessary to set  out\t the
\nfurther\t facts.\t But I need not do so in any detail as\tthey
\nare given in full in the two judgments of the High Court. We
\nare  only concerned here with the question of principle;  so
\nit  will  be more convenient to reduce the  problem  to\t its
\nsimplest terms.\n<\/p>\n
    We are concerned here with four items of property  which
\nI shall term Chittaranjan Avenue, Strand Road, No. 16  Round
\nTank  Lane  and 20 Round Tank Lane.  These  properties\twere
\noriginally  joint  family properties, but in the  year\t1932
\nthere  was  a partition which was compelled by reason  of  a
\nsuit filed by Tarak
\n183<\/span>
\nagainst\t his  brothers and mother. The upshot was  that\t the
\nproperties were divided as follows: –\n<\/p>\n
    (1)\t Bejoy,\t  Kedar,  Naku\tand  the   mother  Meghamala
\nobtained Chittaranj an Avenue.\n<\/p>\n
    (2)\t Tarak (plaintiff’s father) obtained 16\t Round\tTank
\nLane and 20 Round Tank Lane.\n<\/p>\n
    (3) Kedar, Naku and Biswa Lall obtained Strand Road.
\n    Before  this partition there were three  mortgages:\t The
\nfirst  of these was executed on the 16th of June, 1925.\t All
\nfive  brothers\tjoined in it and they mortgaged\t the  Strand
\nRoad  property for Rs. 10,000. This was in favour of  Bhuvan
\nChandra Bhur.\n<\/p>\n
    The\t second\t was on the 11th of October, 1926.  In\tthis
\nBejoy  and Tarak mortgaged their 2\/5 share in  Chittaranjan,
\nStrand,\t Dum Dum and 20 Round Tank Lane for Rs.\t 5,000.\t The
\nmortgagee was Binode Behari Sen.\n<\/p>\n
    The third was on the 28th January, 1927.  In this  Bejoy
\nand Tarak again mortgaged their 2\/5 share in the same  items
\nof  property  for Rs. 7,000 to Binode Behari Sen  and  Kunja
\nBehari Sen.\n<\/p>\n
    All three sets of mortgagees, or their  representatives,
\ninstituted suits on their respective mortgages and  obtained
\nfinal decrees-\n<\/p>\n
    Bejoy  died\t on  the 23rd of May, 1933,  leaving  a\t son
\nJugal.\n<\/p>\n
    On\tthe 12th of June, 1936, came what I have called\t the
\nsuit  mortgage executed by the three  brothers,Tarak,  Kedar
\nand Naku, for Rs. 80,000. The properties mortgaged were-
\n   (1) the shares of Kedar and Naku in\t Chittaranjan
\nAvenue and 16 Round Tank Lane;\n<\/p>\n
    (2) 20 Round Tank Lane which had been allotted to Tarak;
\n    (3) the reversionary interest of all three in the  share
\nallotted to the mother.\n<\/p>\n
    The\t  consideration\t of  Rs.  80,000  was  expended\t  as
\nfollows:Rs. 29,667-10-0 was paid by Tarak, Kedar and Naku in
\nsatisfaction of the first mortgage and the
\n184<\/span>
\nlater  decretal charge; Rs. 11,519-11-0 in  satisfaction  of
\nthe second and Rs. 13,502-14-0 in satisfaction of the third.
\nThe  balance of Rs. 25,310 is alleged by the  appellants  to
\nhave  been  retained by Tarak.\tI have taken  these  figures
\nfrom the judgments of the High Court.  I understand some  of
\nthe  details are disputed, so I make it clear that I am\t not
\nsetting\t out the decision of this Court\t regarding  the\t de-
\ntails but only giving an overall picture.
\n    Shorn  of overburdening detail the problem,\t reduced  to
\nits simplest terms, comes to this. Three persons A, B and  C
\nseparately  own\t properties  of\t unequal  value,   Blackman,
\nWhiteacre and Greenacre. Let us assume that their values  at
\nthe material date are Rs. 30,000, Rs. 20,000 and Rs.  10,000
\nrespectively.\n<\/p>\n
    A, B and C, acting in various combinations from time  to
\ntime,  incur  debts.  It matters not  for  present  purposes
\nwhether\t those debts are secured on these properties or\t not
\nbecause a time must come when their separate liabilities  as
\namongst\t themselves have to be ascertained and\tapportioned.
\nLet  us\t assume that when that is done,\t A’s  responsibility
\nextends to Rs. 2,000, B’s to Rs. 3,000 and C’s to Rs. 5,000.
\n    In\torder to clear off these debts, A, B and  C  jointly
\nmortgage  their\t three\testates for Rs.\t 10,000,  the  total
\naggregate sum due at the date of the mortgage from the three
\nof  them. There is no contract between them, either  in\t the
\nmortgage  deed\tor  otherwise,\tregarding  their  respective
\nshares\tof  responsibility  in the Rs. 10,000.
\n    At the date of redemption the mortgage debt has  swollen
\nto Rs. 15,000.\tA alone redeems by selling Blackacre,  which
\nis his separate estate, to the mortgagee for Rs. 35,000 that
\nbeing the value of Blackacre at the date of redemption.\t Rs.
\n15,000\tof this is applied in satisfaction of  the  mortgage
\ndebt  and the balance of Rs. 20,000 is retained by A.\tWhat
\nare A’s rights as against B and C ?\n<\/p>\n
    Three solutions readily suggest themselves.\t One is that
\nthe  three contribute equally.\tIn that event B would pay  A
\nRs. 5,000 and C would pay Rs. 5,000.\n<\/p>\n
185<\/span><\/p>\n
    A second solution is that they pay in proportion to\t the
\nextent\tof  the benefits derived.  In that event  B’s  share
\nwould be 3\/10 of Rs. 15,000, that is to say, Rs. 4,500.\t and
\nC’s would be 5\/10 of Rs. 15,000, that is Rs. 7,500.
\n    A third solution is that they pay proportionately to the
\nvalues\tof the properties mortgaged. In that event  B  would
\nhave to pay 2\/6 of Rs. 15,000, that is Rs. 5,000, and C\t 1\/6
\nof Rs. 15,000′ which come to Rs, 2,500.\n<\/p>\n
    The problem is to know which of these three solutions to
\napply.\tIn  the absence of other  considerations,  the\tmost
\nequitable  solution is obviously the second. But the  matter
\nis not as simple as that. There are certain statutory provi-
\nsions which must first be examined.\n<\/p>\n
    The\t learned  counsel for the plaintiff-respondent\tcon-
\ntended\tthat  section  43 of the Contract  Act\tapplied.  He
\nrelied on the following provision :-\n<\/p>\n
    “Each  of two or more joint promisors may  compel  every
\nother  joint promisor to contribute equally with himself  to
\nthe performance of the promise, unless a contrary  intention
\nappears from the contract.\n<\/p>\n
If  any one of two or more joint promisors makes default  in
\nsuch  contribution, the remaining joint promisors must\tbear
\nthe loss arising from such default in equal shares.”\n<\/p>\n
    The argument is that unless a contrary intention appears
\nfrom “the contract” the. loss must be borne equally. It\t was
\ncontended,  and with that I agree, that the words “the\tcon-
\ntract”\tcan  only  refer to the main  contract\tbetween\t the
\npromisors  on  the one side and the promisee on\t the  other.
\nThat contract in this case is the suit mortgage. There is no
\ncontract to the contrary in the document, therefore, it\t was
\ncontended, the section must apply.  That of course would  be
\nthe  clear, logical and simple conclusion ii there  were  no
\nother  provision  of  law to consider.\tBut we\tare  dealing
\nhere  with  a mortgage and so we have also to  look  to\t the
\nprovisions of the Transfer of Property Act.\n<\/p>\n
186<\/span><\/p>\n
    Incidentally, if this argument is pushed to its  logical
\nconclusion  it\twould exclude any collateral  or  subsequent
\nagreement  between  the promisors inter se  which  does\t not
\nappear\tin  the main contract.\tBut we need not\t enter\tinto
\nthat here.\n<\/p>\n
    The\t sections  of  the Transfer of\tProperty  Act  which
\nconcern\t us  are  82 and 92. The first confers\ta  right  of
\ncontribution.  The  second a right of  subrogation.  I\twill
\nconsider section 82 first. It runs :–\n<\/p>\n
    “Where property subject to a mortgage belongs to two  or
\nmore  persons having distinct and separate rights of  owner-
\nship  therein,\tthe  different shares in or  parts  of\tsuch
\nproperty  owned\t by such persons are, in the  absence  of  a
\ncontract to the contrary, liable to contribute rateably\t  to
\nthe  debt  secured by the mortgage  ………  ”
\nThat is the position here.\n<\/p>\n
Next I turn to section 92. That runs–\n<\/p>\n
    ”  ……  any co-mortgagor shall, on redeeming property
\nsubject to the mortgage, have, so far as regards redemption,
\nforeclosure or sale of such property, the same rights as the
\nmortgagee whose mortgage he
\nredeems may have against the mortgagor\t……\t”
\nThat also applies.\n<\/p>\n
    Now these provisions at once raise a competition between
\nsections 82 and 92 of the Transfer of Property Act,  section
\n43  of the Contract Act and what I might term the  principle
\nof beneficial, as opposed to proportionate or equal, distri-
\nbution of liability.\n<\/p>\n
    I  am  of opinion that the\tsecond\tsolution  adumbrated
\nearlier\t in this judgment, based on equities, must be  ruled
\nout  at once. These matters have been dealt with by  statute
\nand  we\t are now only concerned with  statutory\t rights\t and
\ncannot in the face of the statutory provisions have recourse
\nto  equitable principles however fair they may appear to  be
\nat first sight.\n<\/p>\n
    The Privy Council pointed out in Rani Chhatra Kumari  v.
\nMohan Bikram (1) that the doctrine of the
\n(1) (1931) I.L.R. 10 Pat. 851 at 869.\n<\/p>\n
187<\/span><\/p>\n
equitable estate has no application in India. So also refer-
\nring  to  the right of redemption their\t Lordships  held  in
\nMohammad Sher Khan v. Seth Swami Dayal(1) that the right  is
\nnow  governed  by statute, namely section  60,\tTransfer  of
\nProperty  Act.\tSulaiman c.J. (later a Judge of the  Federal
\nCourt) ruled Court equitable considerations in the Allahabad
\nHigh Court in matters of subrogation under sections 91,\t 92,
\n101 and 105, Transfer of Property Act, in Hira Singh v.\t Jai
\nSingh(2)  and  so did Stone C.J. and I in  the\tNagpur\tHigh
\nCourt in Taibai v. Wasudeorao (3). In the ease of section 82
\nthe Privy Council held in Ganesh Lal v. Charan Singh(4) that
\nthat section prescribes the conditions in which contribution
\nis  payable and that it is not proper to introduce into\t the
\nmatter\tany  extrinsic\tprinciple to  modify  the  statutory
\nprovisions.   So, both on authority and principle the  deci-
\nsion must rest solely on whatever section is held to apply.
\n    So far as section 43 is concerned, I am not prepared  to
\napply  it  unless sections 82 and 92 can be  excluded.\tBoth
\nsections  43 and 82 deal with the question of  contribution.
\nSection 43 is a provision of the Contract Act  dealing\twith
\ncontracts  generally.  Section 82 applies to mortgages.\t  As
\nthe  right to contribution here arises out of a mortgage,  I
\nam  clear  that section 82 must exclude section\t 43  because
\nwhen there is a general law and a special law dealing with a
\nparticular matter, the special excludes the general.  In  my
\nopinion,  the whole law of mortgage in India, including\t the
\nlaw  of contribution arising out of a transaction  of  mort-
\ngage,  is now statutory and is embodied in the\tTransfer  of
\nProperty Act read with the Civil Procedure Code. I am  clear
\nwe cannot travel beyond these statutory provisions.
\n    Now,  when parties enter into a mortgage they  know,  or
\nmust be taken to know, that the law of mortgage provides for
\nthis very question of contribution. It confers rights on the
\nmortgagor who redeems and directs that, in the absence of  a
\ncontract to the contrary, he
\n(1) (1922) 49 I.A. 60 at 65.\t   (3) I.L.R. 1938 Nag.\t 206
\nat  216.\n<\/p>\n
(2) A.I.R. 1937 All. 588, at 594.    (4) (1930) 57 I.A. 189.\n<\/p>\n
188<\/span><\/p>\n
shall  be reimbursed in a particular way out  of  particular
\nproperties.  The parties are at liberty to vary these rights
\nand  liabilities by special contract to the contrary but  if
\nthey do not do so, I can see no reason why these  provisions
\nshould\tbe abrogated in favour of a section in the  Contract
\nAct  which does not deal with mortgages.  Slightly  to\tvary
\nthe  language of the Judicial Committee it is the terms\t and
\nnature of the transaction viewed in the light of the law  of
\nmortgage  in India which exclude the personal liability\t and
\ntherefore  section 43, except where there is a\tcontract  to
\nthe contrary.\n<\/p>\n
    It\twas suggested that the rule is inequitable and\twill
\noperate\t harshly in cases like the present.  But the  remedy
\nlies in the parties’ own hands.\t It is open to them to\tmake
\na  contract to the contrary.  If they do not, then  the\t law
\nsteps  in and makes statutory rules to which effect must  be
\ngiven. It is not for judges to consider whether that is\t the
\nbest possible solution but the rule at any rate obviates the
\nnecessity of roving enquiries into the objects of a  borrow-
\ning  and the application of the funds.\tOn an overall  basis
\nit is perhaps as good as any other. But that hardly matters.
\n   The rule is there and full effect must be given to it.
\n    The learned counsel for  the  plaintiff-respondent urged
\nthat the defendants are shut out from relying on section  82
\nbecause\t that was not their case and the question was  never
\nraised by them in the High Court. Such reference as there is
\nto  the section was with reference to an argument  urged  on
\nbehalf\tof  the\t plaintiff.  I am not  impressed  with\tthis
\nobjection.,  On\t the facts set out by the  plaintiff  it  is
\nevident that he is entitled to contribution.  The method  of
\ncomputation  is a matter of law and it is for the judges  to
\napply  the  law to the facts stated and give  the  plaintiff
\nsuch relief as is appropriate to the case.
\n    I  turn now to the question of fact, the special  agree-
\nment  pleaded by the defendants.  The only evidence in\tsup-
\nport  of it is that of the first defendant Kedar.  According
\nto him, the agreement was an oral one
\n189<\/span>
\nthough\tthe parties contemplated writing  and  registration.
\nHis  explanation  for lack of any writing is  this.  He\t was
\nasked  whether anything was put down in writing and  he\t re-
\nplied :-\n<\/p>\n
    “No, nothing was done then, but there was an understand-
\ning that it would be done but Tarak went away to  Darjeeling
\nand  when he came back he died soon after he came  back\t and
\nnothing could be done in writing.”\n<\/p>\n
Later, he was asked-\n<\/p>\n
    “Therefore,\t you,  contemplated that there\twould  be  a
\ndocument  which\t would have to be registered  in  connection
\nwith the adjustment ?”\n<\/p>\n
    and he replied’ ‘Yes”. He also tells us that the parties
\nregarded  the matter as confidential and so only three\tper-
\nsons  were  present, Tarak, Naku and himself. It  is  to  be
\nobserved  that\tNaku, who is the second defendant,  has\t not
\nentered the box.\n<\/p>\n
    Stopping  there, it is evident that we have to  rely  on
\nthe  memory  of\t a very interested  person  speaking  nearly
\nthirteen years after the event about a transaction affecting
\nsome Rs. 80,000.  Nor is it the memory of some simple  event
\nwhich might well have fixed itself in his mind. The question
\nwhether and at what stage parties reach finality when  writ-
\ning  is\t in  contemplation is a difficult  and\tcomplex\t one
\ninvolving  delicate considerations of much nicety even\twhen
\nthe preliminaries are all in writing.  The turn of a  phrase
\nhere,  the use of a word there, may make a world of  differ-
\nence.  The  law regarding this was examined by\tme  at\tsome
\nlength\tin  the\t Nagpur High Court in  Shamjibhai  v.  Jagoo
\nHernchand  Shah (1).  How much greater are the\tdifficulties
\nwhen  we  do not know the exact words the parties  used\t and
\nhave  to delve into the mind of a dead man  (Tarak)  through
\nthe impressions of an interested witness given some thirteen
\nyears after the event.\n<\/p>\n
    I find it difficult to accept this version and  consider
\nit would be dangerous to do so, particularly when the
\n (1) I.L.R. 1949 Nag. 381 at 586-588, and 598
\n\t25<\/span>
\n190<\/span>
\nwitness is a hesitant and reluctant one, as his\t examination
\ndiscloses,  and even evasive on some points; also  when\t the
\ndefendants have deliberately withheld from the Court assist-
\nance  which it was in their power to render–I refer to\t the
\nabsence\t of  Naku, the only other person present,  from\t the
\nbox.  I am unable to accept this testimony.
\n    Nor\t is this the only point. Despite the  insistence  of
\nthe witness that the parties were on good terms and  trusted
\neach  other, the fact remains that Tarak found it  necessary
\nto  institute a suit for partition against his brothers\t and
\nfight it to a finish.  They were not able to arrange matters
\namicably.  it  was suggested in argument that  was  probably
\nbecause of creditors who could not be persuaded to agree and
\nit  was pointed out that creditors were joined in the  suit,
\nbut  that is not wholly convincing particularly when  it  is
\nadmitted  that\tTarak was insisting on\twriting\t and  regis-
\ntration.\n<\/p>\n
      It  is evident that he, at any rate, was not  prepared
\nto leave matters as they were and trust to the good faith of
\nhis brothers.\n<\/p>\n
     Now  we  know that Tarak was in  Calcutta\tabout  three
\nmonths after the date of the alleged agreement. We also know
\nthat  Kedar was most anxious to have such an agreement,\t for
\nhe  tells us so.  He tells us further that there was  before
\nthem a rough draft of the terms. That document was  produced
\nin  Court. But the draft was neither signed nor\t initialled.
\nThe only inference I can draw from these facts is that Tarak
\neither\trefused\t to agree or had not made up his  mind.\t The
\nfigures\t put  forward by the defendants\t were  contested  on
\nbehalf of the plaintiff and we were given an alternative set
\nof  figures which in turn were contested by the other  side,
\nbut  they  were\t enough to show that the matter\t is  not  as
\nstraightforward or as simple as the defendants would have us
\nbelieve.   Therefore,  Tarak’s\tinaction  during  the  three
\nmonths and the omission of either side to initial the  draft
\npoint clearly, at the lowest, to hesitancy on Tarak’s  part.
\nIt  may be he wanted his lawyers to examine his position  or
\nit may be he refused to have anything to do with it.\n<\/p>\n
191<\/span><\/p>\n
It  is\tjust possible that there were negotiations,  but  on
\nthose  broad facts I am not prepared to believe the  witness
\nwhen  he  tells\t us, or rather suggests,  that\tthe  parties
\nreached\t finality.   It would in any event be  dangerous  to
\nbelieve\t a witness in circumstances like this. But when\t the
\ndefendants deliberately withheld from the Court that assist-
\nance  which is its due I can only conclude that\t their\tcase
\nwas  too  shaky\t to stand further proving.  On\tthese  broad
\ngrounds alone I would hold that the agreement is not proved.
\n    Much  was made in argument about the rule regarding\t the
\nweight to be given to the estimate of the judge who saw\t and
\nheard  a witness.  I do not doubt the soundness of the\trule
\nbut  it\t can  be pushed too far as their  Lordships  of\t the
\nJudicial    Committee\t pointed   out\t in    Virappa\t  v.
\nPeriakaruppan(1).   In the present case, the  learned  Judge
\nwho tried the case believed Kedar not because of his  demea-
\nnour but because the learned Judge considered that his story
\nwas  inherently probable.  That, however, is a matter  which
\nthe  learned appellate Judges were in as good a position  to
\nappreciate as the learned trial Judge.\tIf probability is to
\nbe  the test, then the conduct of Tarak suggests that it  is
\nvery improbable that he could have agreed.
\n    That  leaves at large the nature of the relief to  which
\nthe plaintiff is entitled.  In the view I take, there  being
\nno contract to the contrary, the plaintiff’s only remedy  is
\nunder  section 92 of the Transfer of Property Act read\twith
\nsection 82.  The question is, has his suit been so framed ?\n<\/p>\n
    The\t plaintiff  has claimed\t separate  personal  reliefs
\nagainst the defendants.\t As there is no personal covenant as
\nbetween\t the mortgagors or any “contract to  the  contrary”,
\nthat relief’ cannot be granted.\n<\/p>\n
    The plaintiff has also asked for a declaration of charge
\nand  for a decree under Order XXXIV, Civil  Procedure  Code.
\nThe declaration of charge standing by itself is\t superfluous
\nalthough  Order\t XXXIV,\t rule 2 (1) does  require  that\t the
\ndecree in a mortgage suit shall
\n(1) A.I.R. 1945 P.C. 35 at 37.\n<\/p>\n
192<\/span><\/p>\n
“declare  the amount so due” at the date of the decree.\t But
\nreading\t the  two  reliefs together, I am  of  opinion\tthat
\nthough the claim is inartistically worded the plaintiff\t has
\nin  substance asked for a mortgage decree up to a  limit  of
\nRs.  40,253-11-10 with interest against each defendant.\t  No
\nother  kind  of\t decree could be given\tunder  Order  XXXIV.
\nTherefore, though he has not used the word “subrogation”  he
\nhas  asked in substance for the relief to which\t a  subrogee
\nwould be entitled under the Transfer of Property Act.
\n    I  would be slow to throw out a claim on a mere  techni-
\ncality of pleading when the substance of the thing is  there
\nand no prejudice is caused to the other side, however  clum-
\nsily  or  inartistically the plaint may be worded.   In\t any
\nevent, it is always open to a court to give a plaintiff such
\ngeneral or other relief as it deems just to the same  extent
\nas  if\tit had been asked for, provided\t that  occasions  no
\nprejudice  to the other side beyond what can be\t compensated
\nfor in costs.\n<\/p>\n
    In\tthe circumstances, in the absence of  agreement\t be-
\ntween  the  parties as to the figures, I would\tremand\tthis
\ncase to the High Court for (1) an enquiry regarding the\t sum
\npaid  by  the  plaintiff’s father for  satisfaction  of\t the
\nmortgage dated the 12th June, 1936, (2) for the interest due
\non  that sum at the contract rate in the mortgage  from\t the
\ndate of payment to the date of decree, (a) lot the values of
\nthe  various properties mortgaged at the date of  the  mort-
\ngage.\n<\/p>\n
    When  the figures are ascertained, I would\tdirect\tthat
\nthe liability of each defendant be ascertained separately in
\nthe  manner prescribed by section 82, Transfer\tof  Property
\nAct.\n<\/p>\n
     In.  the\tevent\tof  this   liability  exceeding\t Rs.
\n40,253-11-10 with interest against either defendant, I would
\ndirect\tthat his liability be reduced  to  Rs.\t40,253-11-10
\nplus interest.\n<\/p>\n
     When these figures are ascertained, I would direct that
\na  mortgage  decree for sale be drawn up in  the  usual\t way
\naffording either defendant the right to redeem the whole  of
\nthe balance of the property
\n193<\/span>
\n(excluding  the\t plaintiff’s) for the aggregate sum  due  as
\nabove  and, in default of payment, limiting the\t liabilities
\nof each item of property to the sum rateably due on it under
\nsection 82.\n<\/p>\n
    On\tthe  question of costs.\t  The  plaintiff  repudiated
\nsection\t 82  in the course of the arguments  before  us\t and
\nrested\this case on section 43 of the Contract Act, nor\t did
\nhe  clearly and unmistakably plead a case of subrogation  in
\nhis plaint even in the alternative.  The defendants, on\t the
\nother hand, set up a case which has failed on the facts.   I
\nwould, therefore, direct each side to bear its own costs  in
\nthis appeal.\n<\/p>\n
    As\tregards the costs incurred in the Courts  below\t and
\nany  costs  which may be necessitated by a further  enquiry,
\nthey will be determined according to the final result of the
\nlitigation and with due regard to all matters bearing on the
\nquestion of costs.\n<\/p>\n
    FAZL ALI J.–I agree.\n<\/p>\n
\t\t\t\t   Case remanded.\n<\/p>\n
Agent  for the appellant: M.S.K. Sastri.
\nAgent for the respondent: Ganpat Rai.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Kidar Lall Seal And Another vs Hari Lall Seal on 18 December, 1951 Equivalent citations: 1952 AIR 47, 1952 SCR 179 Author: V Bose Bench: Bose, Vivian PETITIONER: KIDAR LALL SEAL AND ANOTHER Vs. RESPONDENT: HARI LALL SEAL. DATE OF JUDGMENT: 18\/12\/1951 BENCH: BOSE, VIVIAN BENCH: BOSE, VIVIAN FAZAL ALI, SAIYID […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-103222","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nKidar Lall Seal And Another vs Hari Lall Seal on 18 December, 1951 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/kidar-lall-seal-and-another-vs-hari-lall-seal-on-18-december-1951\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Kidar Lall Seal And Another vs Hari Lall Seal on 18 December, 1951 - 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