Chakrapani Nandi and Others vs Srimati Gayamoni Dasi and Others

One Madhusudan Sen had three sons, Radhaballa v. Ananta Lal and Haladhar Sen. He mortgaged a part of the property of the family for Rs. 2,500 to one Haradban Das. In 1895 a decree was obtained upon this mortgage and the mortgaged property duly brought to sale. The price obtained was insufficient to cover the whole amount of the decree. Haradhan Das took steps to realise the deficit from the homestead of the family. Madhusudan was then dead. Two only of the sons Radhaballav and Haladar mortgaged the family dwelling house for eight hundred rupees to Tincouri De. Tincouri De obtained a decree upon this mortgage. In order to save the property from sale the sons of Radhaballav executed a mortgage On the 26th May 1904 in favour of the father of the plaintiffs for Rs. 1,999. The plaintiffs'' father himself paid off Tincouri De''s mortgage. The plaintiffs in due course on the 3rd of May 1912 obtained a mortgage decree and brought to sale the right, title and interest of their mortgagors which they alleged to be sixteen annas. Haladhar Sen was then dead. His widow put in a claim to a one-third share. She obtained an order under Order XXI, Rule 100, releasing her share of the property. Ananta Sen filed a similar claim which was dismissed. The plaintiffs, therefore, instituted the present suit asking for the following reliefs:

(1) That Haladhar''s widow had no interest in the property mortgaged, and that, therefore, the plaintiffs were entitled to the whole property.

(2) That if it be found that Haladhar''s widow had a one-third share, it be held that she and Ananta are liable to pay the money due to the plaintiffs on the ground that it was advanced for the payment of the debts of the father of Ananta Sen and Haladhar.

(3) That Ananta Sen and his wife be held liable for the sum paid by the plaintiffs'' father in respect of the mortgage entered into by Haladhar Sen and Radhaballav.

The details of the claim upon which the second and third reliefs are sought are, set forth in paragraph. 8 of the plaint.

Briefly the proposition is: that the mortgage entered into by the sons of Ridhaballav kept alive the mortgage given by Radhaballav and Haladhar Sen, and that the mortgage given by Radhaballav and Ualadhar kept alive the mortgage given by Madhusudan Sen, and that, therefore, all the heirs of Madhusudan Sen are liable to contribute to the redemption of Madhusu-dan''s mortgage generally and in particular to that part of Madhusudan''s mortgage which was liquidated by the transaction to which Radhaballav and Haladhar were parties.

The leading issue framed in the case was: Was the property of Madhusudan San held by the sons in ejmali or was it divided by metes and bounds? This issue was found against the plaintiffs by the learned Subordinate Judge and this decision was not contested in appeal before the learned Judge. On the issue: Are the defendants Nos. 2 and 3, that is to say, Ananta Sen and his wife, bound by the mortgage-deed executed by Radhaballav and Haladhar Sen, the learned Subordinate Judge was of opinion that u/s 95 and Section 43 of the Transfer of Property Act the plaintiffs'' father acquired a charge on the 1/3rd share of the house. This charge extended to a half share of the money required to pay off the mortgage decree executed by Radhaballav and Haladhar, but that it was impossible to enforce this charge as an ordinary liability for contribution for the reason that the period of limitation for suits upon such a claim would be three years. It was further found as a fact by both the Courts that the mortgage made by the sons of Radhaballav was invalid by reason of defeats in attestation. The suit was accordingly dismissed with costs, and the appeal was also dismissed with coats on grounds some what similar to those given by the learned Subordinate Judge.

In appeal to this Court it is urged, firstly, that u/s 95 of the Transfer of Property Act the defendant Gayamani Dasi is bound to contribute to the mortgage, and, secondly, their the suit is not barred by limitation for the reason that the liability to contribute was a charge upon the property, and that, therefore, the limitation for such a suit would be 12 years. In answer to this claim it was pointed out by the respondents that the charge created by the payment of the whole mortgage debt by Radhaballav''s sons vested, not in the plaintiffs'' father who advanced the, money, but in Radhaballav''s sons who pledged their property as security for the advance. To meet this argument the appellants claim the benefit of Section 43 of ''the Transfer of Property Act and assert that inasmuch as in the mortgage-deed the sons of Radhaballav erroneously stated that they were entitled to a sixteen-anna share in the property, any right vesting in them in regard to that property would vest in the plaintiffs.

The points, therefore, which we have to consider in this case are: Firstly, whether the invalid mortgage given by Radhaballav''s sons can bind anybody but Radhaballav''s sons, and, secondly, whether on the basis of the decree obtained against Radhaballav''s sons the plaintiffs can claim the benefit of the charge vesting in Radhaballav''s sons without proof of the transaction as between them and Radhaballav''s sons.

The first point presents to our minds no difficulty at all. All that the learned Subordinate Judge and all that the learned Vakil for the appellants has said with regard to the doctrine of subrogation may be perfectly true; but there can be no subrogation in respect of property of which there has been no new mortgage. It has been found as a fact, and the finding has been accepted, that Radhaballav''s sons had no interest in 1/3rd share of this property. Nothing that they could do with respect to this 1/3rd share could affect the rights of the real proprietors, either by way of subrogation or by way of extending the liability of those proprietors. The lien on the share of Radhaballav''s sons might be carried back over the prior mortgages, but there could be no extension forwards or backwards of the lien on Haladhar''a share under a contract to which Haladhar was not a party.

Our difficulty with regard to the second point is that there was no suggestion in the pleadings that Section 43 could operate to give the plaintiffs a charge upon the share of Haladhar. We may grant for the sake of the argument that in view of the decision, Danappa v. Yamnappa 26 B. 379 : 4 Bom. L.R. 61, the charge vested in Radhaballav''s sons would pass to the plaintiffs u/s 43, if indeed it were proved that there had been an erroneous representation. We may also grant for the sake of the argument that that mortgage having passed from the stage of contract to the stage of a decree, the plaintiffs would be entitled to claim any interest possessed by the sons of Radhaballav without further proof of their contract with the sons of Radhaballav. But there is ample authority for the proposition [vide Gangahas v. Basvant Ballappa 6 Ind. Cas. 866 : 34 B. 175 at p. 182 : 12 Bom. L.R. 143 and Pandiri Bangaram v. Karumoory Subbaraju 8 Ind. Cas. 388 : 34 M. 159 : 8 M.L.T. 285] that before Section 43 can be brought into operation there must in fact have been an inducement by erroneous representation. The question, therefore, of the applicability of Section 43 depends upon the issue of fact: Was the plaintiffs'' father induced by the erroneous representation to advance the money to the sons of Radhaballav. There was no suggestion in the plaint of the facts bearing upon this question and no issue was raised upon it. We have, however, certain broad facts before us of which the chief is that the plaintiffs'' father himself was a witness to the mortgage entered into by Radhaballav and Haladhar, and himself paid off the whole sum due under that mortgage. He must have been perfectly aware that Radhaballav was set the sole owner of this property; he must have known that Haladhar had an interest in it; he cannot now plead that he was misled by the assertion in the mortgage document executed by the sons of Radhaballav that they were in fact the sole proprietors of the property. In this view of the case there can be no question of the operation of Section 43, and in no other view of the case could the plaintiffs possibly succeed. We are, therefore, of opinion that the suit was rightly dismissed and dismiss this appeal with costs in one set.