Gopinath and Another vs Raghubansh Kumar Singh and Others

Ramaswami, J.—It is advisable at the outset to state the material facts which have led to the prosecution of this appeal.

Babu Kamla Prasad, defendant 5, had executed a mortgage bond on 24th January 192 1 in favour of Mt. Jamuna Kuer with respect to 16 annas milkiat of touzi No. 9053 and 5 pies mokarrari interest of village Kurma Petari. On 9th November 1922, defendant 5 executed a mortgage bond in favour of defendant 1 for a sum of Rs. 1700 as regards 4 annas milkiat of touzi No. 9053 and 5 pies mokarrari share of Kurma Petari. Subsequently defendant 5 executed a usufructuary mortgage bond with respect to 2.86 acres of balcasht land of Dhanwan Santipur in favour of defendants 3 and 4. On 1st May 1931 defendant 1 obtained a mortgage decree on the bond of 1922 and in execution thereof purchased annas milkiat interest and 5 pies mokarrari share of defendant 5. Babu Lal Singh, father of plaintiffs 1 to 5, had meanwhile obtained a money decree against defendant 5 in exeoution of which he purchased 16 annas milkiat interest of touzi No. 9053. Thereafter the heirs of Mt. Jamuna Kuer brought a suit on the first mortgage impleading the plaintiffs and defendants and obtained a mortgage decree. When the decree was being executed the plaintiffs paid up the entire decretal amount of Rs. 3860 and averted the sale of the mortgaged properties inclusive of the share of defendants 1 to 4. The plaintiffs hence claimed contribution of Rs. 1687 and odd from defendants 1 and 2 and Rs. 434 and odd from defendants 3 and 4 together with interest in each case. Defendants 1 and 2 contested the suit on the ground that they were not liable to contribute as the plaintiffs paid the decretal amount merely to save their own interest. Defendants 3 and i asserted that the bakashat land mortgaged to them was not included in the mortgage decree obtained by the heirs of Mt. Jamuna Kuer and so they were not liable to pay any share of the mortgage amount. On these rival contentions, both the lower Courts have held that the bakashat land mortgaged to defendants 8 and 4 was subject to the prior mortgage of Mt. Jamuna Kuer, that all the defendants were liable to reimburse their share of the decretal amount due to Mt. Jamuna Kuer.

The question for decision in this appeal is whether the plaintffs are entitled to a decree for contribution against defendants 1 and 2; there is no appeal by defendants 3 and 4.

On behalf of the appellants the main argument was presented that u/s 82, Transfer of Property Act, a co-mortgagor who paid the full amount of the mortgage debt cannot sue for contribution but u/s 92 of the Act, he may be subrogated to the rights of the mortgagee whose mortgage he redeems. In my opinion this argument is untenable. Section 82 is in these terms:

Where property subject to a mortgage belongs to two or more persona having distinct and separate rights of ownership therein, the different shares in or parts of such property owned by such persona are, in the absence of a contract to the contrary, liable to contribute rateably to the debt secured by the mortgage, and, for the purpose of determining the rate at which each such share or part shall contribute, the value thereof shall be deemed to be its value at the date of the mortgage after deduction of the amount of any other mortgage or charge to which it may have been subject on that date.

Section 98 states:

Where one of several mortgagors redeems the mortgaged property, he shall, in enforcing his right of subrogation u/s 92 against his co-mortgagors, be entitled to add to the mortgage money recoverable from them such proportion of the expenses properly incurred in such redemption as is attributable to their share in the property.

In my opinion the remedies granted by these sections are independent and not mutually exclusive; and a co-mortgagor who pays the mortgage money has right of contribution and acquires a charge under Sections 82 and 100 in addition to his right of subrogation under Sections 92 and 95 of the Act. In Rajkumari Debi v. Mukundlal A.I.R.1921 Cal. 166 , a co-mortgagor who had paid off the entire mortgage money had sued the other mortgagor for contribution and the suit had not been brought until the expiration of more than 12 years after the due date fixed in the mortgage bond for the payment of the mortgage money. The Division Bench held that the position of a co mortgagor redeeming a mortgage was that of an assignee of the original security and he could not get a fresh charge and the period of limitation for enforcing the charge was the same as that within which the original mortgagee could have brought his suit on his mortgage had he not been redeemed. The case was overruled by a Full Bench in Umar Ali and Another Vs. Asmat Ali and Others, but Rankin C.J. remarked that the decision in Rajkumari''s case AIR 1921 Cal. 166 was the statue law after the amendment. Before making that remark he stated:

It may here be observed that Section 95, Transfer of Property Act has by Act XX (20) of 1929 been amended in such a way that Sections 92 and 95 as they now stand make it clear that the right of the co-mortgagor redeeming is the same right as the mortgagee whose mortgage he redeems may have against the mortgagor.

If this dictum means that the co-mortgagor has no other right but that being subrogated to the rights of the original mortgagee, I must respectfully express my dissent. For it is manifest that a person who is bound to pay only a part of the mortgage debt acquireson redemption two distinct rights. He may simply sue for reimbursement u/s 82 of the Act. He may also sue to enforce the right of the mortgagee to follow the mortgaged properties.

Subrogation is rather an additional remedy than an additional right, and may exist concurrently with, and as a further security to, the right to a simple action for reimbursement. The fact that a party entitled to reimbursement and also to subrogation is entitled to two distinot remedies, seems to have been overlooked to the confusion of both doctrines:

Pomeroys Equity Jurisprudence Note to Section 920.

In the preaent case, it was pointed out on appellants'' behalf that there was no actual sale of the properties mortgaged to Jamuna Kuer, that plaintiff had paid the entire decretal amount before the sale took place. But, in my opinion, there is no difference in principle between a case where the payment in respect of which contribution is claimed was made to avert a legal process and a case where payment has been enforced by sale of the property of the claimant for contribution. The reason is that the right to claim contribution is based upon the broad principle that where two or more persons are equally bound and equally relieved, it is only just that they should all contribute in proportion to a common benefit. The arguments in support of this view are set forth by Bhashyam Iyengar J. in Rajah of Vizianagram v. Rajah of Setrucharla 26 Mad. 686 and by Banerji J. in Ibn Hasan v. Brijbuhhan Saran 26 All. 407. The opinion is also supported by a Full Bench decision Narayanan Chetti v. Nallammal AIR 1942 Mad. 685. in which Leach C.J. observed that the right of contribution under a. 82 of the owner or a puisne mortgagee as the case may be, of the first property arises equally whether there has been a payment by him to discharge the mortgage of both the properties or the property in which he is interested, viz., the first property, has been sold in execution to discharge the mortgage. In either ease, the first property bears an unfair share of the burden of the mortgage and this fact was not altered by the right of the mortgagee to proceed against any property which he may choose. The Full Bench overruled a previous decision Sesha Ayyar v. Krishna Ayyangar 24 Mad. 96, which was to a contrary effect. In AIR 1942 449 (Oudh) , a Full Bench of Oudh Chief Court have held that under the amended Act of 1929 a right of subrogation and a right to a charge could co-exist; that the rights of subrogation was merely additional right given to the creditor to enable him to more effectively realise his debt. The Full Bench held that a co-mortgagor who had voluntarily paid the entire mortgage decree before the sale of the properties acquired a charge in regard to amount due from the other co-mortgagors under Sections 82 and 100, T.P. Act.

I hold, therefore, that in the present case I the plaintiffs are entitled to a decree for contribution u/s 82, T.P. Act.

At the bar question was debated whether the plaintiffs had the right to sue u/s 69, Contract Act. In my opinion the section is inapplicable; it deals with reimbursement and not with contribution for the person who is interested in the payment of money which an-other is bound by law to pay "must be a person who is not himself bound to pay the whole or any portion of the money." A suit for contribution is totally different from a suit for reimbursement. A claim for contribution is based on the payment of the common liability of two or more persons by one of them. A claim for reimbursement u/s 69, Contract Act, on the other hand, is based on the payment of the liability of one or more persons by another who, is interested in making the payment but is not legally bound to pay. In Sree Rajah Vatsavaya Venkata Simhadri Jagapatiraju Bahadur Garu and Another and his Legal Representative Vs. Sree Rajah Thyada Pusapati Rudra Sri Lakshmi Nrusimha Roopa Sadrusannamarad Dugaraju Dakshina Kavata Dugaraju Bahadur Garu and Others, the plaintiff was a purchaser in an auction sale held in execution of a decree, of some villages in a zamindari of which defendant 1 was the registered holder. For default in payment of revenue accruing due subsequent to the plaintiff''s purchase, one of the villages purchased by him was attached by the Government. The plaintiff paid the full amount due on the entire zamindari to save his village from revenue sale. The plaintiff brought the suit for contribution from the defendants. The learned Judges held that Section 69, Contract Act did not apply in a suit for contribution. In Jinnat Ali v. Fateh Ali 15 Cal. W.N. 332, defendant''s title to an eight annas share in a jote having been declared in a suit brought by him against the plaintiff, the latter sued the former for a moiety of the rents recovered from him by the landlord when he was in exclusive possession of the jote. The learned Judges held that Section 69 was not applicable since the plaintiffs had paid up the rent in the discharge of their own liability for rent and not to the satisfaction of the rent due by the defendant whom they had kept out of possession on denial of the title.

The question then remains to be determined whether the plaintiffs are entitled to a decree u/s 70, Contract Act.

Section 70 enacts that:

Where a person lawfully does anything for another person, or delivers anything to him, not intending to do so gratuitously, and such other person enjoys the benefit thereof, the latter is bound to make compensation to the former in respect of, or to restore, the thing so done or delivered.

The terms of the section are unquestionably wide and only three conditions are required to establish a right of action at the suit of a person who does anything to another: (1) the thing must be done lawfully, (2) it must be done by a person not intending to act gratuitously and (3) the person for whom the act is done must enjoy the benefit of it. In my opinion all these conditions are satisfied in the present case. It is clear that actual consent or request on the part of the defendants need not be proved. It is because the party interested is absent and has given no mandate that the right of action on the part of the negotiorum gestor accrues (Just. Inst. Lit. III Tit. XXVIII).

It was contended for the appellants that if Section 70 was to be applicable it was necessary that the party sought to be made liable must not only have benefited by the payment but must also have had an option of declining the benefit. In Yogambal v. Naina Pillai 33 Mad. 15, such an opinion was expressed by Munro and Sankaran Nair JJ. who held that the section was modelled on the principle recognised in the case of Lampleigh v. Brathwaite 1 smith''s Leading cases 159. But the case has been dissented in later decisions of the same High Court: Gajapathi Kristna Chandradeo v. Srinivasa Charlu AIR 1915 Mad. 95 and Saptharishi v. Secy. of State AIR 1915 Mad. 1081 in which it was pointed out that the construction adopted in Yogambal''s case 33 Mad. 15 was not warranted by the language of the statute. In Jog Narain v. Badri Das 16 Cal. 156, Sir Ashutosh Mookerjee also expressed his dissent, holding that such a narrow construction of the section was not justified. Adopting the ratio of these cases I hold that for section to be applicable it is not necessary to show that the party sought to be made-liable had, before the benefit was conferred upon him, an option of declining such benefit. The question was mooted whether a plaintiff who could not have saved his property without making the deposit could be said to have acted for the defendant in actually making the deposit. In Nagendra Nath Roy and Others Vs. Jugal Kishore Roy and Others, , the plaintiff sued for contribution in respect of payment made by him to save from sale in execution of a decree a property, in which the plaintiff claimed he had an interest along with the defendant. The payment had been made with the permission of the Court which had expressly found that the plaintiff had the right to make the payment. The High Court held that Section 70 applied and the plaintiffs were entitled to be reimbursed by the defendants. In Bhagwati Saran v. Maiyan Murat Mati AIR 1931 Pat 894, a mortgage decree having been passed against two persons, a sale of the mortgaged property followed. One of the mortgagors, however, deposited in Court the decretal money and the statutory compensation, as a result of which the sale was set aside. Thereupon that mortgagor sued the other mortgagor for contribution in respect of the latter''s quota of the decretal debt. It was contended in defence that Section 70, Contract Act, did not apply because the plaintiff could not save his property without depositing the amount which he did in fact deposit, that he could not be said to have acted for the defendant in doing so. But the Division Bench held that Section 70 did not require that a person who claimed compensation must have acted from purely disinterested motive; that the expression "not intending to do so gratuitously" suggested that there must be an element of self-interest also in the act performed by him.

In my opinion, Section 70 applies in the present case and the plaintiffs are entitled to a decree for reimbursement.

As regards the amount of contribution, Section 82, T.P. Act, enacts that for the purpose of determining the rate at which each share shall contribute, the value thereof shall be its value at the date of the mortgage after deducting the amount of any other mortgage or charge to which it may have been subject on that date. In the light of this provision, the learned Subordinate Judge has assessed the value of the shares after examining the available evidence. He has found that defendants 1 and 2 are liable to contribute Rs. 1560-2-0 and it is not shown for the appellants that the Subordinate Judge has erred in principle in calculating the amount.

It is necessary to state that obligation u/s 82 is not personal but the obligation is attached to the properties which are liable to contribute rateably to the debt secured by the mortgage. The owner of the properties has an option either to pay his rateable share or to allow it to be realised out of the properties. The plaintiff ought, therefore, to be granted a decree declaring that he is entitled to claim contribution of Rs. 1560 2-0 from the 4 anna milkiat share of touzi No. 9053 in the possession of defendants 1 and 2, that in the event of that sum with interest at 6 per cent, per annum from 6th November 1941 till the date of payment not being paid within six months from the date of the decree the plaintiff will be entitled to recover it by sal/3 of the 4 annas share of milkiat of touzi No. 9053 or so much thereof as may be necessary to satisfy the debt.

I would alter the decree of the lower appellate Court to the above extent. Subject to this modification this appeal must, in my opinion, be dismissed with costs.

Manohar Lall J.

I agree.

In my opinion the matter is concluded by the decision of their Lordships of the Judicial Committee in the case of AIR 1930 183 (Privy Council) . My learned brother has reached the same conclusion by examining the authorities relevant to the subject. I, therefore, agree that the appeal should be dismissed, but the decree be altered, as suggested in the judgment of my learned brother.