Mt. Mehdatunnissa Begum vs Mt. Halimatunissa Begum

Dhavle, J.—These appeals arise out of a suit for the recovery of Rs. 7222, the amount for which the plaintiff''s properties were sold in execution of a mortgage decree. In March 1919, one Saiyid Badshah Nawab died, leaving (inter alia) to his heirs 31 properties subject to a mortgage. Shortly before his death the amount of this mortgage was settled at Rs. 61,200 and odd. Saiyid Chhote Nawab, a brother of the mortgagors, took a one-third interest in the mortgaged properties and in the mortgage debt as one of the heirs. In August 1920 he sold his share in five of the properties to defendant 2 for Rs. 6581-6-0, which sum was left with the purchaser, for payment towards the mortgage debt. In October 1920, he similarly sold one property to defendants 3 and for Rs. 3000, which amount was to be paid by the purchaser towards the mortgage. The same month he also gave five other properties to defendant 5, wife of defendant 6, in mokarrari for a consideration of Rs. 4500 which was left with defendant 5 for payment towards the mortgage. In March 1924, Saiyid Chhote Nawab divided the remaining properties together with his debts among his heirs, one son and three, daughters, namely the plaintiff, defendant 1 and defendant 8 by tamliknamas under which each daughter was required to pay the debts assigned to her and was also made liable, in case any such debt had to be paid by some other heir, to compensate, such heir. In this way defendant 1 was liable to pay Rs. 10,818 and odd, the balance of the principal of the mortgage debt due from Saiyid Chhote Nawab after deducting the amounts left with purchasers (badminhai zimme kharidaran) towards Saiyid Chhote Nawab''s share of the mortgage debt. The mortgage was, sued upon in due course, and a decree obtained against Saiyid Chhote Nawab and his transferees for his share of the mortgage debt in 1926.

Under the mortgage decree the properties assigned to defendant 1 were to be the properties to be "first sold in execution," but defendant 1 succeeded in obtaining an order that on her depositing Rs. 15,500 her properties were not to be sold. She made the deposit in May 1928. In June 1929, the properties transferred to defendants 3 and'' 4, 5 and 6, and 2 were sold in execution for Rs. 2025, Rs. 5025 and Rs. 8055, respectively. The order passed by the executing Court in favour of defendant 1 on condition of her depositing Rs. 15,500 had not however satisfied defendant 1, who endeavoured to obtain a reconsideration of it, and then appealed to the High Court. As a result, it was ordered that the mortgagee decree-holder was not to proceed against the properties of defendant 1 unless he refunded the deposit of Rs. 15,500, but that this was not to affect the right of the plaintiff in the present suit to claim contribution from her. The execution then proceeded, and only came to an end when five properties of the plaintiff''s were sold for Rs. 7222 on 15th December 1932. On 22th December 1933, plaintiff brought the present suit for the recovery of this money, besides Rs. 1000 as cost of the execution proceedings, with interest at 1 per cent, per mensem. Plaintiff''s case was that she had suffered this loss on account of the failure of defendant 1 and of defendants 2 to 6 to pay those portions of the mortgage debt that they had undertaken to pay.

The lower Court held that defendant 5 (with whom goes defendant 6) had paid her share to Saiyid Chhote Nawab himself before the execution of the tamliknatas in favour of his daughters, and that defendants 1 to 4 were liable for the loss caused to the plaintiff. The claim of the plaintiff was accordingly, decreed rateably against defendant 1, defendant 2, and defendants 3 and 4, the costs claimed being disallowed together with interest. Against this decree defendant 1 has filed First Appeal No. 65 and defendant 2, First Appeal No. 59. The learned Subordinate Judge had no difficulty in finding privity of contract between the plaintiff and defendant 1 on the ground that the tamliknamas in favour of the daughters formed the consideration for one another. This view has not been, as it cannot be, seriously contested. As regards defendant 2 also, the liability is clear Isri Prasad Singh and Others Vs. Jagat Prasad Singh and Others, on the footing (approved by their Lordships of the Judicial Committee in AIR 1930 183 (Privy Council) that there passed to the plaintiff the benefit of the contract by which the money was to be applied by defendant 2, so that the plaintiff could say: "I have a contract which frees me from the liability to contribution which the Section (Section 82, T.P. Act), would otherwise impose upon me."

It has however been contended on behalf of defendant 2 that the time is long past for enforcing his personal liability for the money left with him by Saiyid Chhote Nawab and that the vendor''s lien for unpaid purchase money is also gone since the property has been sold in the execution proceedings taken by the mortgagee. On behalf of defendant 1 also it has been contended that the personal remedy is barred by lapse of time, and that, in any case, the sum of Rs. 15,500 deposited by her was more than sufficient to cover what was due from her.

Taking the last point first, defendant 1 has given her calculations in para. 6 of her written statement. These calculations are erroneous in two respects. In the first place, they assume that the amount of Rs. 10,818 odd, for which she became liable, refers to March 1924, when the tamliknama was executed, and not to March 1919, when the sum outstanding under the mortgage was settled just before the death of the mortgagor. Secondly, they assume that the sum of Rs. 10,818 odd was arrived at after deducting not only the amounts left with the purchasers defendants 2, 3 and 4 but also the amount of Rs. 4500 which the mokarraridar of 1920 was to pay towards the mortgage debt. A reference to the tamliknama of defendant 1 (Ex. l) shows quite clearly that both these assumptions are erroneous. Saiyid Chhote Nawab''s one-third share of the mortgage debt, as calculated in March 1919, was Rs. 20,400-2-9, an amount which is only Rs. 9581-6-0 in excess of the amount allotted to defendant 1; and this difference of Rs. 9581-6-0 is the total of Rs. 6581-6-0 due from defendant 2 and Rs. 3000 due from defendants 3 and 4. The tamliknama purports to specify Rs. 10,818-12-9 as the principal of the mortgage debt besides interest after deduction of the amount in deposit with the purchasers. That no interest after March 1919 is included in the amount allotted to defendant 1 is further made clear by the fact that in the schedule of debts given in the tamliknama there is one item relating to a handnote with the specific remark ''including interest.''

Defendant 5 was not a purchaser (kharidar), but only a mokarraridar, and if the Rs. 4500 due from her were to be deducted from Saiyid Chhote Nawab''s share of the mortgage debt, and interest calculated in the way that defendant 1 has done, her liability in March 1924, works out, not at Rs. 10,818 odd, but at Rs. 11,169 odd.

That the mokarraridar paid Rs. 4500 to Saiyid Chhote Nawab before the tamliknamas is established by the evidence of his son Saiyid Muhammad Mehdi, P.W. 1, whose evidence there is no good reason to doubt. It is true that he does not know all the details, but the account that he speaks to, Ex. 2, as worked out by the Diwan of the estate, so far as it shows that Rs. 17,387 odd was found due at that time on account of the mortgage, has been shown by the calculations of Mr. De, who appears for the plaintiff, to be entirely consistent with the exclusion from Saiyid Chhote Nawab''s share of the mortgage debt as calculated in March 1919, of the two sums assigned to defendant 2, and defendants 2 and 4 only, without reference to the sum due from the mokarraridar. This supports the story of Saiyid Muhammad Mehdi. It has been pointed out on behalf of defendant 1 that it was plaintiff''s own case that defendant 5 was also liable to contribute. That did not however preclude the lower Court from ascertaining how the amount of Rs. 10,818 odd, allotted to defendant 1, was really arrived at, and from distributing the liability for plaintiff''s loss among the parties that were really liable. The liabilities inter se of the transferees from Saiyid Chhote Nawab did not really arise in the mortgage suit, and the finding of the Subordinate Judge in that suit that defendant 5 had failed to make out her story of payment to Saiyid Chhote Nawab plainly does not act as res judicata in the present suit. Rs. 10,818 odd must therefore be taken as due from defendant 1, not from March 1924, but from March 1919 for the purpose of the calculation, so that her liability in March 1924 was Rs. 17,387 odd and on 15th May 1928 was much in excess of the deposit of Rs. 15,500 made by her.

8 The contentions regarding the personal remedy against defendants 1 and 2 being barred by lapse of time and as against defendant 2 regarding the vendor''s lien for unpaid purchase money having been extinguished by the mortgage sale are without merit. As the placitum of the recent Full Bench decision of the Allahabad High Court in Tilak Ram and Others Vs. Surat Singh and Others, puts it:

Where there is an undertaking by the vendee (or, it may be added, other transferee) to pay off a mortgage debt existing on the property, the covenant is not merely one to pay the purchase money in a particular manner to the vendor''s nominee, but one to relieve the vendor from the liability of the mortgage, and in that sense there is a contract of indemnity which may be express or implied. In such cases a cause of action arises when the plaintiff vendor is actually damnified by the sale of the property in the suit by the mortgagee, and under Article 83, Limitation Act, the plaintiff has three years from the time when he is so damnified, but the time is extended to six years by Article 116 as the contract f indemnity was contained in a sale deed in writing registered.

This is in substantial accord with the view taken in this Court in Ram Rachhya Singh v. Raghunath Prasad A.I.R (1930). Pat. 46 and Mt. Rajbansi Kuer and Others Vs. Bishundeo Narayan Singh and Others, The present is of course not a suit by the vendor himself, nor is defendant 1 a vendee but only a transferee. It is a suit by a person entitled to the benefit of the contracts with Saiyid Chhote Nawabj and as it was brought a little over a year from the time the plaintiff was actually damnified, it is plainly within time, whether we regard it as governed by the limitation prescribed in Article 83 or Article 116 or Article 120, Limitation Act. It has been urged on behalf of the appellants in the two appeals that the calculations of the lower Court are wrong. Before dealing with this point however it is convenient to dispose of the plaintiff''s cross-objection in the appeal by defendant 1. This cross-objection relates to the costs and interest (both prior to the institution of the suit) claimed in the plaint. The amounts were not disputed in the lower Court, but the learned Subordinate Judge disallowed the costs on the ground that

defendant 1 as well as the decree-holders having contested the plaintiff''s prayer for having her properties put up for sale last of all, the plaintiff cannot equitably call upon defendants 1 to 6 only to reimburse her in respect of her said cost.

It is said on behalf of defendant 1 that she had arrived at an arrangement with the decree-holder to refrain from proceeding against her properties in the first instance on condition she made a deposit; but this was no justification as against the plaintiff whom defendant 1 was bound under her tamliknama to save harmless. Plaintiff seeks by her cross-objection to recover from defendant 1 her proportionate share of the costs amounting to Rs. 348, and there does not seem to be any reason'' why she should not have these costs against defendant 1. As regards the interest claimed up to the date of institution of the suit, the claim cannot be supported on any of the'' grounds that would appear admissible from J.H. Pattinson and Others Vs. Bindhya Debi, and AIR 1938 67 (Privy Council) . That claim must therefore be disallowed.

The only point that remains is the correct calculation of the respective liabilities of defendants 1, 2, 3 and 4. The interest calculated in the lower Court seemed to be Wrong, at least at one point, and has been checked by the Bar in this Court, with the result that the interest on the sum of Rs. 6581-6-0 chargeable to defendant 2 must, it is now agreed, be taken to be not Rs. 6588-11-0 but Rs. 7578-11-0. In the account of defendant 1 Rs. 15,500, the amount of her deposit, has been credited to her; but the deposit was made on 15th May 1928, while the account was made up to 15th December 1932, an interval which carried interest at eight annas per cent, per mensem, the rate allowed from the date of the expiry of the period of grace. This interest, it is agreed, amounts to Rupees 3807-7-0 and must be credited to defendant 1. In the account of defendant 2 no allowance has been made for the sum of Rs. 8055 that was realized by the sale of his properties in the execution proceedings. "With interest this amount, it is agreed, comes to Rs. 9746-8-0, a figure which must be credited to defendant 2 in his account. There is a similar omission in the account of defendants 3 and 4. Their property was sold in the execution proceeding for Rupees 2025, to which Rs. 390 odd must be added as interest, the total being credited to these defendants. The pro rata liabilities of the defendants must be worked out in the light of these revised figures.

The calculations may be simplified by working out the totals to the nearest rupee, leaving out annas and pies. Except for these arithmetical modifications the appeals fail. I would dismiss them but without costs. I would also allow the cross-objection in F.A. No. 65 in part, as already indicated. The cross-objection in the other appeal, being out of time, was not pressed and must be dismissed.

Agarwala J.

I agree.