Bhairab Chandra Madak vs Nadyar Chand Pal and Others

Markby, J.—In this case the facts, as stated before us by the plaintiff, appellant, and not contested by the defendant, respondent, were these: One Gopal Shebait was possessed of two properties, which for brevity''s sake, I will call No. 1 and No. 2. Both these properties were mortgaged by him to one Ramnarayan by one simple mortgage bond. Subsequently to the execution of this mortgage bond, a creditor of Gopal Shebait obtained a decree against him, and in execution of that decree the creditor attached the properties No. 1 and No. 2, and proceeded to get them sold. The properties were looted and sold separately; the plaintiff in this suit becoming the purchaser of No. 1 for rupees 212, and the defendant in this suit becoming the purchaser of No. 2 for rupees 522. The plaintiff and defendant respectively got into possession, and after they had done so, Ramnarayan, in one suit sued Gopal Shebait the mortgagor, the present plaintiff, and the present defendant, for the purpose of recovering his loan by enforcing his lien on these two properties. He failed in the first Court, and his suit was dismissed; but on appeal this decision was reversed; no decree, however, was drawn up except the unintelligible one of "appeal decreed." Ramnarayan seems first to have attached or threatened to attach the larger property, No. 2. The defendant in this suit, who had purchased that property, thereupon came to terms, and on getting a discharge from Ramnarayan surrendered to him a portion of the property No. 2 and in consequence satisfaction was entered up for half the amount which was due under Ramnarayan''s decree. When the present plaintiff heard of this, he at once objected. He represented to the Court that he and the defendant were not liable in equal shares; and be paid into Court the sum of rupees 222, which he said represented the full amount of liability. Ramnarayan, however, disregarding this, took steps to sell the plaintiff''s property No. 1, and notwithstanding the opposition of the plaintiff, the sale was ordered to take place. The plaintiff thereupon paid rupees 187 to get his property released. He then brought the present suit to recover this sum of rupees 187 from the defendant, on the ground that he and the defendant were liable for the debt in proportion to the value of their respective properties, and that the rupees 187, which he had been compelled to pay, were really due from the defendant. The defendant denies his liability.

Some confusion has arisen by the plaintiff in his plaint, and by both plaintiff and defendant, in the course of his argument, speaking as if the result of Ramnarayan''s suit had been to make the plaintiff and defendant liable for a sum of money, whereas, if that decree had been properly drawn up, it would have been a money-decree against Gopal only, with a declaration that the properties No. 1 and No. 2 were liable to be sold, clear of subsequent encumbrances, in satisfaction of the mortgage bond-debt.

The real effect of the decree, if it had been thus drawn up, would have been not to have made either plaintiff or defendant directly liable for any sum of money at all, but it would, nevertheless, have made them both indirectly liable to pay the whole of what was due under the decree; as otherwise their property could be sold in satisfaction of it. What I understand the plaintiff to urge in this case, and what I think he has urged throughout, though not always in language legally precise, is this: that the debt due under the mortgage bond, with its accumulations, was a general burden upon the two properties for which no portion of those two properties was presumably more liable than another; that as between the plaintiff and defendant the liability of the two properties ought to be considered not as joint, but as several, being divided in proportion to the respective values of the properties; and that the plaintiff having been compelled to discharge a burden for which the property purchased by the defendant was legally liable, he may recover the amount so paid from the defendant.

I have come to the conclusion that this is a sound argument. I take it, that though it does not appear in evidence that these two properties were contiguous or ever formed one parcel of land, yet that the effect of joining them together in one mortgage bond was to make every portion of them equally liable for the debt, and that the legal result is the same as if they had been one single property.

The principal question is whether the liability of the two properties which, as between the owners of those properties and the mortgagee is undoubtedly joint, is as between the plaintiff and defendant to be considered as several; in other words whether this joint liability is, as between the owners of the two properties, to be apportioned. I think that it is. The pleader for the plaintiff, in support of this proposition, relied upon certain passages in Story on Equity and the general principles of what is called "equity and good conscience." In this case, however, I think it is not necessary to resort to any thing so vague or so distant. I think this case is exactly analogous to one that occurs every day in our own Courts of Justice, and may be decided on principles already adopted in India. I see no distinction in principle between this case and that of a suit for contribution between the several holders of a single lot, one of whom has paid the whole revenue. The only difference is that, in one case, the liability of the land to be sold in satisfaction of the claim is created by the law; in the other (the case before us), the same liability is created by the act of private persons competent for the purpose. But to my mind this is a difference which is wholly immaterial; the liability in both cases is complete, and the same reason for apportionment seems to me to exist in both oases, namely the injustice of allowing a mere accident to cast upon a particular portion of land, and therefore upon the owner of that portion, a burden, which was originally and ought still to be fairly laid equally on all. I also think the liability should be divided in the proportion of the value of the two properties at the time of the purchase. The case of contribution for revenue does not here afford an exact analogy; for, if the separation of ownership is into undivided shares, of course the liability to the revenue is considered to be in proportion to the shares; whereas, if the separation is by an actual partition of the property, the liability to the revenue is, I believe, almost invariably apportioned by the parties themselves, with or without, but generally with, the sanction of the Revenue Officers, upon principles similar to those on which the revenue was originally assessed. It seems to me, however, that no other proportion can be suggested in this case which is so equitable as that of the respective values at the date of division, that is, at the date of the auction-sale. Neither a division according to the respective areas, nor a division according to any combination of area and value would be satisfactory. I therefore think the liability should be thus apportioned, and having arrived so far, the next step in the argument needs no demonstration. The plaintiff, if his figures are correct, has clearly been compelled to pay a sum of money in discharge of a burden which the defendant was legally compellable to discharge; and it is a well established principle of law, in support of which I may again refer to the practice in revenue oases, that, under such circumstances, the defendant is bound to refund the plaintiff the sum of money so paid. The only objections which the defendant has made to the application of these principles to the present case are: first, that the property No. 2 was by the arrangement between Ramnarayan and the defendant completely discharged from all liability to be sold under the decree; and second, that there was never any decree of the Court which compelled the plaintiff to pay this money to Ramnarayan, but only the unmeaning declaration that the appeal was decreed. But in my opinion both these objections failed. The first, upon the manifest principle that no arrangement between Ramnarayan and the defendant can, in any way, affect the rights of the plaintiff, unless be assented to that arrangement; whereas the plaintiff in this case, as soon as he heard of that arrangement, at once objected to it. The second, also, fails, because in fact the plaintiff was not bound to resist the claim of Ramnarayan, and drive him to take legal proceedings. That claim was altogether irresistible, and the plaintiff''s right as against the defendant would have been just as complete, if he had paid Ramnarayan the rupees 187 on demand, without going into a Court of law at all. The only question which remains is as to the figures; the parties seem to be agreed as to the amount which was duo upon the mortgage bond-debt to Ramnarayan, although that sum was not, as it ought to have been, ascertained in the decree which he obtained. As regards the respective values of the properties No. 1 and No. 2, the first Court found that they were in proportion to the prices paid for them at the auction-sale, and if so these prices would have afforded a correct criterion for the apportionment of the liability. But the defendant in appeal to the Court below objected to this valuation, and that ground of appeal has, in consequence of the suit having been altogether dismissed, not yet been adjudicated on. The case must therefore go back in order that the lower appellate Court may consider whether there is any reason for disturbing the finding of the Munsiff on the question of value, unless, as I cannot help hoping may be the case, the parties will have the good sense to settle that matter amicably.

Kemp, J.

I concur.