A. James vs Ch. Achaibar Singh and Others

Dhavle, J.—This is an appeal by defendant 13 in a suit for recovery of Rs. 5879-5-0 which the plaintiffs said they had to deposit under pressure of execution proceedings and which they claimed ought to have been paid by defendants 1 to 12 and 13. In May 1922, one Janki Lal mortgaged his entire jagirdari right in Mauza Lenjhua and his interest in six other villages to Ramkrit Narain. In May 1924 he entered into an agreement with the representatives of defendants 1 to 12 to sell Lenjhua to them, leaving it to them to pay off the mortgage of 1922. The case of the plaintiffs was that defendants 1 to 12 took the plaintiffs in as co-partners for a moiety in the proposed sale and gave them an express assurance and undertaking that defendants 1 to 12 would play their part properly in obtaining the discharge of the mortgage and would see that the plaintiffs did not have to pay more than a moiety of the mortgage debt. On 12th September 1924 Janki executed two kabalas for eight annas each of Mauza Lenjhua, one in favour of the plaintiffs and the other in favour of defendants 1 to 12. Out of the consideration money Rupees 12,083-15-0 was left with each set of vendees to pay in discharge of the mortgage of Ramkrit Narain, Janki representing that these two sums of Rs. 12,083-15-0 each represented all that was due upon the mortgage, the rest having already been paid off by him.

When the plaintiffs attempted to pay the mortgagee it was discovered that the mortgagee claimed Rs. 1200 more than had been admitted by Janki Lal to his vendees to be due to the mortgagee. In March 1929 defendants 1 to 12 transferred their moiety of Mauza Lenjhua to defendant 13 for Rs. 22,000 which was to be paid by defendant 13 to the mortgagee as the proportionate share of the outstanding mortgage debt. Shortly after this the mortgagee sued to enforce his mortgage, and in March 1930 he obtained a decree for Rs. 54,631-12-6 inclusive of costs.

A question had been raised during the trial of the mortgage suit regarding the order in which the mortgaged properties were to be brought to sale and the Court had decided that unless the decretal amount was paid within five months of the date of the preliminary decree, the two sets of vendees of Janki Lal were to be at liberty within one month after the expiry of the said period of five months to deposit in Court to the credit of the mortgagee Rs. 12,083-15-0 besides interest at 12 per cent, with quarterly rests from 12th September 1924, to the date of deposit.

The Court directed that if such deposits were made, the mortgaged properties were to be sold in the same order as that given in the mortgage bond--I may observe in passing that in this document Mauza Lenjhua figures as item 6. The Court further directed that if such deposits were not made by the two sets of vendees or by any set out of them, then the whole Mauza of Lenjhua or the moiety of the defaulting set of vendees as the case may be should be sold first and the remaining mortgaged properties or a sufficient part thereof be sold in the same order as given in the mortgage bond. Acting in accordance with this part of the mortgage decree, the plaintiffs deposited Rupees 24,476-12-6 on the due date, but defendant 13 did nothing of the kind.

The result was that the defendants'' moiety of Mauza, Lenjhua was brought to sale first and sold for Rs. 11,100. The other six mauzas covered by the mortgage were then put up to sale and fetched Rs. 18,671.

I have already said that Mauza Lenjhua was No. 6 in the list of properties, but the plaintiffs had obtained from the High Court an order staying the sale of their moiety in the mauza, with the result that Mauza Bahera, which appeared later in the mortgage bond, was sold before the plaintiffs'' moiety.

The plaintiffs'' deposit and the execution sales thus brought in a little over Rs. 54,000, and the amount for which execution was being levied was Rs. 5879-5-0 in excess of the amount already realized. When the executing Court wanted to proceed against the plaintiffs'' moiety in order to realize this balance, they averted the sale by paying the amount. They then brought the present suit and the foundation of the suit appears from such paras, as Nos. 5, 6, 7 and 18 of the plaint to have been that the plaintiffs took their moiety on the clear guarantee given by defendants 1 to 12 that they would not have to run any risk or losses with respect to their purchase and on the express-assurance and undertaking given by them that they would pay their quota of the mortgage debt, etc. (to quote from para. 18 of the plaint). Defendants 1 to 12 denied giving any such undertaking, and the issue framed on the point ran: "was there any assurance given by defendants 1 to 3 as pleaded in para. 7 of the plaint?"

The learned Subordinate Judge answered this issue against the plaintiffs, and it has not been contended before us on behalf of the plaintiff-respondents that the finding is open to any exception. Janki was not impleaded in the suit. and, though the defendants contended that the suit was bad for his non-joinder, the learned Subordinate Judge held that Janki was not a necessary party to this suit, as it. appeared that in the execution proceedings he had paid more than he was liable to pay and therefore the ultimate liability was upon defendant 13. The suit was accordingly decreed against defendant 13.

Sir Manmatha Nath Mukherji who appears for this defendant 13, the appellant, contended that the sale deed taken by this defendant from defendants 1 to 12 did not make him liable at all in the circumstances and certainly not liable to the plaintiffs as they were strangers to the contract. But the suit is in essence a contribution suit, and the consideration that the plaintiffs were no parties to the contract between defendants 1 to 12 and defendant 13 is by no means conclusive of the matter, for in the case in Shah Muhammad Abbas v. Muhammad Hamid (1912) 9 ALJ 499 which was noticed by their Lordships of the Judicial Committee in AIR 1930 183 (Privy Council) there was a contract to which the defendants were no parties and yet it could be said that there had passed to them the benefit of the contract with the plaintiffs, the prior purchasers of a part of the mortgaged properties, who had undertaken to apply the consideration money towards the payment of the mortgage.

The real difficulties of the case, however, came to light when Dr. Mitter began replying for the plaintiffs-respondents and appealed to the doctrine of contribution as bottomed and fixed on the general principles of justice, and not as springing from contract, though contract may qualify it: (1787) W & T Leading Cases in Dering v. Earl of Winchelsea (1787) W & T Leading Cases in Eq II (9th Edn.) 488 Now this doctrine of contribution was developed in the Courts of equity because these Courts could much more effectually than the common law Courts adjust losses so that they fell in due proportion upon all the persons liable. It thus became a fixed principle that in a suit for contribution the respective liabilities of the parties should be ascertained and determined once for all and nothing should be left undetermined which may lead to further litigation for the ascertainment of such liability between two or more of the parties to the suit.

In the present case, however, Janki Lal has not been impleaded by the plaintiff-respondents, and the defect is not merely formal. In the first place, it appears that by the terms of the sale deed which the plaintiffs took from Janki Lal, they had something in the nature of an indemnity from Janki Lal in respect of any sums that they may have to pay to the mortgagee in excess of the amount of Rs. 12,083-15-0 with interest which they had agreed to pay. Secondly, the amount decreed in the mortgage suit includes Rs. 2592-12-0 as costs awarded to the mortgagee but obviously not apportioned among the various sets of defendants in that suit and in particular Janki, our plaintiff, our defendants 1 to 12 and also our defendant 13.

The total decretal amount, moreover, was Rs. 54,631-2-6, while the amount for which execution has been levied is Rs. 60,127-1-6, and the difference between these two amounts has also yet to be apportioned. It is obvious that in both these items the plaintiffs must bear a share, but what that share may be it is impossible to determine in the absence of Janki. If, as the lower Court has said, Janki has paid more than he was liable to pay, a suit for contribution not based on any contract between the plaintiffs and defendants 1 to 12 and 13, ought to settle once for all what Janki is entitled to.

It will be wrong to leave defendant 13 exposed to another suit by Janki Lal. Nor does it appear that the suit as framed raised the question of the liability of defendant 13 to defendants 1 to 12 in the form in which it ought to have been raised and decided. The suit was therefore not properly constituted, and the lower Court was plainly in error in holding defendant 13 liable for the entire amount claimed while his exact liability cannot be determined in the absence of Janki Lal. This was so plain that Dr. Mitter at once asked for leave to implead Janki Lal at this stage and for a remand.

In my opinion this prayer ought not to be allowed for the double reason that the plaintiff deliberately left out Janki Lal in spite of the direct indemnity they had from him and that they founded the suit upon an alleged assurance from defendants 1 to 12 which they failed to prove and which appears to be a figment of their imagination. I would therefore allow this appeal, set aside the decree of the lower Court and dismiss the suit. In the circumstances, I would make no order about costs.

Manohar Lall, J.

I agree. In my opinion the suit being a suit for contribution fails in limine on the simple ground that Janki Lal, the vendor of the plaintiffs, who is necessary party, is not before the Court and in his absence the liabilities of. the parties cannot be satisfactorily ascertained. I do not think this Court would be exercising a wise discretion in allowing the plaintiffs to add Janki Lal as a defendant at this late stage.