Musammat Dulhin Sona Kuer vs Musammat Bibi Ale Fatima and Others

Jwala Prasad, J.—This is an appeal by the plaintiff against the decision of the Subordinate Judge of Patna, dated the 21st January 1921. The facts are undisputed.

Bibi Fasihan was a Muhammadan lady of rank, belonging to the Suni sect of Mussalmans. She possessed considerable property. On the 21st of November 1891 she executed a mortgage-bond in favour of Girdhar Das and others, mortgaging the following properties:

Mahal Kurmi Chak.

Mahal Kasba Barowna.

Bankipur Machhiarawan.

Karnauti Khurd and Buzrug, and

Abdulla Chak.

The mortgagees obtained a mortgage-decree on the 2nd September 1903 on foot of their mortgage which was made absolute on the 4th September 1905, in accordance with a compromise entered into by the parties whereby five years'' time was given for payment of the entire decretal amount. The decretal amount not having been paid within the time allowed, the decree-holders put their decree in execution against Bibi Basihan, and on her death against her heirs.

Bibi Basihan died on the 2nd July 1909, leaving behind her four daughters, named Fatima, Saera, Salema and Habiba, a son named '' Mohammad Umar by her first husband, and another son named Kali-muzaffar by her second husband. Before her death, between the 7th of May aid the 8th of June, she executed several deeds of gift, two of them being in favour of Kali-muzaffar alias Cheddi, one in favour of her daughter, Habiba, and one in favour of her son Muhammad Umar. By these deeds of gift she gave her properties to her aforesaid children, the bulk of them to Kali-muzaffar. No deed of gift was executed in favour of her three daughters, Bibi Fatima, Saera and Salema. The donees, under the aforesaid deeds'' of gift, got their names registered as proprietors, in the Collectorate in respect of the share conveyed to them by the lady and took possession of their respective properties and began to deal with them and to give leases, mortgages, etc., in favour of other persons. The three daughters, Fatima, Saera and Salema, in whose favour no gift was made by the lady, brought suits on the 26th of March 1912 in the Court of the Subordinate Judge of Patna to have the aforesaid deeds of gift declared invalid and to recover their full shares of the properties left by their mother. These suits were subsequently transferred to the file of the District Judge of Patna where Fatima and Saera''s suit was No. 6 of 1913, and Salema''s suits were numbered 9, 10, 11 and 12 of 1913. All these suits were disposed of by tie District Judge on the 8th April 1914. The result of his decision was that all the deeds executed by the lady except the deed of gift of the 7th May 1909 in favour of Kali-muzaffar were set aside. The parties affected by the decision of the District Judge appealed to this Court and by the decision of this Court dated the 18th July 1917 the appeals were disposed of, with the result that all the deeds, including the deed in favour of Kali-muzaffar, were set aside. The operative portion of the decision of this Court is as follows:

"The deeds of gift, therefore, do not stand in the way of tie heirs of Bibi Fasihan taking their shares under the Muhammadan law. Her husband, Abdus Subhan, inherited a share of 1/4 of the lady''s properties, her two sons Umar and Kali-muzaffar each took 6/32 and each of her four daughters Fatima, Saere, Salema and Habiba took 3/32 of the properties left by her. The heirs of such of the aforesaid persons as have died since the death of the lady have succeeded to the shares inherited by their predecessor. The properties left by Musammat are, therefore, liable to be distributed among her heirs and the heirs of her heirs unaffected by dealings or transfers of interests in excess of their legal shares. As the donees and the heirs have been dealing with the properties since 1909 and the matter is complicated by claims of creditors and others it is useless to give each of the heirs a decree for his or her share in the ordinary way. The result of passing such decree would be endless litigation. The proper course appears to be to direct a general administration of the property of Musammat Fasihan under the orders of the Court. I would dismiss with costs Appeals Nos. 73 and 219 arising out of Suit No. 6, Appeal No. 42 arising out of Suit No. 9, and Appeal No. 339 arising out of Suit No. II. I would allow with costs Appeal No. 112 arising out of Suit No. 6 and Appeal No. 581 arising out of Suit No. 6 and setting aside the deed of May 7th, 1909, I would declare that the heirs of the deceased are entitled to the shares specified above in the property of Musammat Fasihan. I would remand Suits NOS.6 and 9 of 1913 to the Court below in order that in the presence of the parties a preliminary decree may be passed with reference to Order XX, Rule 13, ordering such accounts and enquiries to be taken and made and giving such directions as may appear to be necessary. It will probably be necessary to appoint a Receiver or Commissioners to carry out the administration. Arrangement must be made to pay off the debts of the deceased as soon as possible. Those heirs or representatives of heirs who have been in possession of parts of the property should be debited with what they or persons claiming under them have received."

In Suit No. 6 of 1913 which was instituted by Bibi Fatima and Saera, in addition to the relief sought by the plaintiff to have the deeds of gift executed by. Bibi Fasihan declared null and void, there was a further claim for administration of the estate and for partition of it among the heirs and for other reliefs. Suit No. 9, of 1913 was instituted by Salema to have the two deeds of gift executed in favour of Kal-muzaffar alias Cheddi of the 9th May and 5th June 1909 set aside; and to have, her declared in possession of her legal share in the properties of Bibi Fasihan. These two suits were, by tie decision of this Court, referred to above, remanded to the Court below for the purposes of the joint administration of the properties of Bibi Fasihan and for the drawing up of-a preliminary decree under Order XX, Rule 13. We are, therefore, concerned with these two suits only, the other suits having been now fully and finally disposed of.

In accordance with the aforesaid directions of this Court the preliminary decree was drawn up by the District Judge on the 27th September 1917.

While the litigation about the estate of Bibi Fasihan was going on, Muhammad Umar, one of her sons, who had a hiba deed executed in his favour by his mother dated the 6th June 1909, executed a mortgage bond in favour of Dulhin, Sona Kuer. That mortgage was executed on the 4th February 1913 and was in respect of a sum of Rs. 85,000. The properties mortgaged in this bond by Muhammad Umar were thirteen Mouzahs out of a total of twenty which were conveyed to him by his mother under the deed of gift referred to above. Two of the mortgaged properties, namely, Mouza Kasba Barowna and Karnauti Khurd, and Bazrug had alreay been mortgaged by Bibi Fasihan along with certain other properties mentioned above on the 21st November 1891 to Girdhar Das and others. Therefore, Girdhar and others were prior mortgagees in respect of these two properties covered by the mortgage of Dulhin Sona Koer.

Dulhin Sona Koer obtained a mortgage-decree on the basis of the aforesaid bond on the 25th February 1915 and after it was made absolute she put the same into execution and purchased the aforesaid 16-annas of Mahals Kasba Barowna and Karnauti Khurd and Buzrug on the 20th June 1916. In the meantime, Girdhar Das had put his decree into execution. That execution case was numbered 362 of 1914. Mahal Bankipur Machhiarawan, one of the properties mortgaged in the deed of Girdhar Das, was covered by the deed of gift in favour of Kalimuzaffar. On the 28th July 1915 he paid Rs. 65,000 as the rate able share of the debt over the said properties to the decree-holder who agreed not to sell Mahal Bankipur Machhiawaran until after the other properties were sold and the sale-proceeds found insufficient to pay off the entire decretal amount; and he put in a petition to that effect in Court. His prayer was granted and Mahal Bankipur Machhiarawan, which was lot No. 1, was directed to be sold after all the other properties were sold, by the order of the Court dated the 38th July 1915 (Kxhibit 2). Girdhar Das, therefore, proceeded to sell the other properties and Mahal Kasba Barowna was sold for Rs. 36,500, Kurmi Chak for Rs. 41,000 and Abdulla Chak for Rs. 18,000 The sale took place on the 26th February 1916.

Muhammad Umar, Bibi Habiba and Sona Koer then instituted proceedings under Order XXI, Rule 90, to have the sale of Mahal Kurmi Chak and Kasba Barowna set aside. The sale was set aside on the 15th December 1916. On the 15th January 1917 one Janki Das and others purchasers of these properties appealed to this Court against the order of tie Subordinate Judge setting aside the sale of the aforesaid properties. This appeal was disposed of on the 5th June 1918 in terms of a compromise arrived at between the parties. In the meantime, in the administration proceedings which were pending before the District judge, Mr. Jamil Ahmad was appointed Receiver on the 25th January 1918 and he was, therefore, made a party respondent in the aforesaid appeal pending in the High Court as representing the estate of Bibi Fasihan. The decree of this Court dated the 5th June 1918 runs as follows:

By consent it is ordered that upon the judgment-debtors respondents paying to the appellants the consolidated sum of Rs. 15,000 on account of all and every claim the appellants may have against the judgment-debtors respondents the Appeals Nos. 7 and 8 of 1917 will be dismissed. The appellants will then be entitled to withdraw from the Court all and every amount deposited on account of the purchase money in respect of the properties but the appellants will not be entitled to claim credit for any sum of money paid by them into the Government Treasury on account of Government revenue. If the above sum of Rs. 15,000 is not deposited here in Court to the credit of the appellants on or before the 26th June 1918, the Appeals Nos. 7 and 8 will stand decreed with costs.

After the sales were set aside by the Subordinate Judge on the 15th December 1916, the decree-holder was directed on that very day to deposit the necessary expenses and famish materials in order that the execution and the sale of the properties might be proceeded with. On the 2nd January 1917 the proceedings, therefore, continued and the plaintiff paid Rs. 36,500 to Girdhar Das, being the amount for which Mahal Barowna had been sold, and upon her doing so she obtained an order similar to that which was obtaind by Kali-muzaffar referred to above, with respect to this property Barowna. The order of the Court was that Barowna should be sold after lots Nos. 3 and 4, i.e., Kurmi Chak and Karnouti. As regards the money that was paid by her the Court''s order was in the following words:

Let Rs. 36,500 be credited against the decree and let sale proclamation issue as prayed for in the petition.

Upon this the plaintiff paid Rs. 15,000 to the Receiver (defendant No. 20 in this case) to enable him to pay the amount directed by the compromise decree of the High Court to be paid to the purchaser of the aforesaid two Mouzahs before the sale could be set aside. The Receiver having got the money from the plaintiff, the Receiver paid the said sum to the purchaser and the aforesaid Miscellaneous Appeals Nos. 7 and 8 of 1917 in the High Court were dismissed on the 15th June 1918, the result of which was that the sales of Barowna and Kurnauti were set aside.

Now in September 1916, the plaintiff as purchaser of the aforesaid properties in execution of her mortgage-decree against Muhammad Umar obtained delivery of possession through the Court. There was then still due to the plaintiff about Rs. 37,000 under her decree. She also got possession of other properties purchased by her except those that had already been sold for arrears of Government revenue, namely, Ibrahim Lodi, Syedpur Behrna and Supasang.

After his appointment the Receiver wanted to take possession of these properties but the plaintiff refused to deliver up possession to him, and, oh a reference being made to the District Judge, the matter was decided against the plaintiff on the 22nd, March 1918. The plaintiff then moved this Court in revision (No. 75 of 1918) against the decision of the District Judge. Her application was, however, dismissed by this Court on the 7th November 1918, vide judgment, Exhibit BI. It was held that the plaintiff having taken a mortgage and purchased the property during the pendancy of the litigation, started at the instance of the heirs of Bibi Fasihan, impugning, the validity of the gifts in favour of the plaintiffs'' mortgagor Muhammad Umar and others, she could not resist the taking of possession of the property by the Receiver who was appointed by the Court in the administration suit No. 6 of 1913. This Court further held that inasmuch as tie plaintiff did not satisfy the whole mortgage-debt of Girdhar Das Kesho Das she could not be subrogated to the position of the prior mortgagee. Her application for leave to appeal to His Majesty in Council was dismissed by this Court on the 27th May 1919 vide judgment, Exhibit B. The result of this decision was that the Receiver took back possession of the aforesaid properties from the plaintiff on the 21st August 1919.

Musammat Sona Koer applied in, the 21st June 1919 to the District Judge (a) to grant permission to execute her decree against the Receiver or (b) to direct the Receiver to pay Rs. 36,500 to her. On the 26th Jane 1919 the District Judge granted prayer No. 1 on the same condition as was imposed upon Bibi Aley Fatima by order of the Court, dated the 19th May 1919: No order appears to lave been passed with regard to her prayer to direct the Receiver to pay the sum of Rs. 36,500.

On the 10th December 1919 she appears to have repeated her application for directing the Receiver to pay the said, sum. In that petition she further asked that in case the money was not paid she may be, given permission to sue the Receiver. This application was referred to the Receiver for report who submitted his report on the 19th December 1919. In his report he staged that the Musammat was in possession of some of the properties yielding an income of Rs. 10,000 for which she was liable to account and also for mesne profits and that she had withdrawn the surplus, sale proceeds amounting to about Rs. 40,000 odd in Respect of village Supasang appertaininjg to the estate and that she being a party-to the administration suit, her claim to the aforesaid sum of Rs. 36,500 could be considered in the administration proceedings,, and the Receiver further added tfrat heir application was premature and not entertainable. The Court recorded the following order:.

Read Receiver''s report dated the 19th December 1919 on the petition of Musammat Sona Koer filed on 10th December 1919 for payment of Rs. 36,500 with interest and for grant of permission to sue the Receiver: Ordered, permission is granted.

Accordingly the present suit was instituted and she filed her plaint on the 2nd January 1920. She claims in this suit the aforesaid sum of Rs. 36,500 with ;interest at the rate of one per cent, per mensem from the date of payment, viz., 2nd January 1917 up to the date of the filing the plaint; amounting to Rs. 49,640.

Defendants Nos. 1 to 6 are the heir of Muhammad Umar, defendant No. 7, is Kali-muzaffar, defendants Nos. 8 to 11 heirs of Bibi Solema, defendants Nos. 12 to,,15 heirs of Bibi Fatima, defendants Nos. 16 to 18 heirs of Bibi Saera, defendant No. 19 is Bibi Habiba and defendant No. 20 is the Receiver. Defendants Nos. 1 to 6, 8 to 11 and 16 to 20 filed different sets of defence on substantially the same grounds. In short their objections were that the suit is not maintainable in its present form, that the estate of Bibi Fasihan was not benefited by the plaintiff''s payment; nor can she recover the same from the defendants, that the plaintiff withdrew the sum of Rs. 40,000 odd from the Collectorate out, of the sale proceeds of Mahal Supasang and other villages and the said sum should be set off against the plaintiff''s claim and that her suit is barred u/s 10 of the Civil procedure Code.

The aforesaid pleas gave rise to the following, issues:

Is the suit as framed maintainable?

Has the plaintiff a valid cause of action against the defendant No. 20?

Whether the defendants are entitled to any set off. If so, can they claim it without payment of Court-fee and for what amount?.

Is the plaintiff entitled to contribution? If so against which defendant?

Can the plaintiff maintain the present suit in the face of proceedings of the administration suit pending before the District Judge and in face of Section 10. Civil Procedure Code?

Is the plaintiff entitled to get interest, and if so, at what rate?

To what relief, if any, is the plaintiff entitled?

The learned Subordinate Judge decided all these issues in favour of the defendants with the result that the plaintiffs suit has been dismissed. She has, therefore, come to this Court in appeal.

I will first dispose of Issue No. 5. The learned Subordinate Judge records the following finding upon this issue:

It requires no decision in face of the above finding, but I have already remarked above, that it would have been better had the plaintiff put forth her claim in the Administration Court.

In the previous paragraph the Court in dealing with Issues Nos. 1, 3, and 4, remarked as follows:

Admittedly plaintiff withdrew a large sum of money out of the surplus sale-proceeds from the Collectorate and admittedly she has been in possession of the property, the income of which was also considerably large. The plaintiff is admittedly to account for these items. But it is urged for the plaintiff that all these accounts will be taken in the administration suit which is pending before the District Judge, and it she is found liable she would be called upon to pay. In other words plaintiff wants to take away her own money and ask the defendants to wait till the administration suit is decided. I think all these questions can be fully tried by the Administration Court and no preference should be given to plaintiff''s claim over that of the defendants, at least the equity requires so. Hence there seems to be no reason to grant any relief to the plaintiff in this suit.?

Continuing the Subordinate Judge says:

For these reasons I am of opinion that the suit is not maintainable, that if plaintiff wants any relief she may come under the provisions of the mortgage law with a suit properly so framed in the light of the observations made above. I, therefore, decide these issues against the plaintiff and in defendants'' favour.

The Subordinate Judge also quoted a passage from the judgment of Mullick, J., (Exhibit BI) to the effect that the mortgage of the plaintiff was affected by tie litigation which was pending at the time when the plaintiff took her mortgage and until the administration suit was over, it could not be known how much of the property would come into the hands of the plaintiffs as a representative of Muhammad Umar, and it might be that no residue might be left which might come into tie plaintiff''s hands.

These are the grounds upon which the learned Subordinate Judge considered the case of the plaintiff to be premature. But the suit has been dismissed upon the principal ground that the plaintiff paid the money in question to Girdhar Das and Kesho Das voluntarily in order to secure benefit to herself and not with a view to confer any benefit to the estate of Bibi fasihan, and that, as a matter of fact, the estate of Bibi Fasihan was not at all benefited, in other words according to the learned Subordinate Judge the plaintiff cannot recover the amount paid by her either by way of contribution from the other co-heirs of Muhammad Umar, she representing Umar''s interest, nor can she recover the property from them under the provisions of Sections 69 and 70 of the Indian Contract Act. In other words, the learned Subordinate Judge is of opinion that she can under no circumstances recover the money from the defendants in the present case. Therefore, whether the claim is premature or not does not affect the decision of the learned Subordinate Judge, for the plaintiff in no circumstances is entitled to press her claim against the heirs; and legal representative of Bibi Fasihan or her estate now in the hands of the Receiver. This view of the matter makes it certain that unless the plaintiff establishes her claim to recover the amount paid by her from the estate of Bibi Fasihan, the Receiver or the Court in the administration suit cannot possibly grant any relief to her.

The Receiver is his report referred to above did not definitely state that the claim was untenable, but from the attitude assumed by the Receiver in the subsequent stage of the, case, and particularly in the written statement, it is impossible to conceive that the plaintiff had the remotest chance of getting her relief in the administration suit. The Court did not venture to enquire into her claim when she put it forward just after her discomfiture in this Court vide judgment date the 7th November 1918 (Exhibit BI). Her first application, as stated above, was made in June 1919 and the consequent dispossession of the property in August 1919. Her second application, was made on the 10th December 1919, while the claims of other creditors either of Bibi Fasihan or of her heirs were being dealt with by the Receiver and the Court administring the estate of Bibi Fasihan but no definite decision was arrived at with respect to the claim of the plaintiff because of complications having arisen on account of the purchase of the properties by Girdhar Das, the prior mortgagee; but the sale of these properties was set aside, and when the matter came before this Court in revision it was held that the plaintiff''s mortgage was affected by the doctrine of lis pendens and that she could not be subrogated to the position of a prior mortgagee. The lower Court''s order of the 19th December 1919 referred to above contained in three words, "permission is granted" does not give any reason for the said order far less does it promise any investigation into the claim of the plaintiff probably as the estate was being administered by the Court and as the claim of the plaintiff had to be enforced against the estate, the permission of the Court would be necessary. If that was so, the bar, if any, to institute the present suit was removed by the order of the Administration Court. In face of that order and in view of the fact that there was never any intention on the part of the Receiver or of the Court to investigate the claim pf the plaintiff; to my mind it seems that there was no option left to her but to have her claim established in Court by a separate suit.

In order to apply Section 10 of the CPC as a bar to any further proceeding with the trial of the present case; it is necessary to show that the matter in issue involved in the present case was also directly and substantially the same as in the administration suit. The claim of the plaintiff to recover the aforesaid sum upon the facts alleged in the plaint was not at all pending in the administration case as the aforesaid order of the Court clearly indicates.

Again the section does not bar the suit but it only says that the trial of it shall not be proceeded with, and thirdly that the Court under that section has no jurisdiction to dismiss a suit but can only postpone the determination of the same until the cognate case pending in another Court'' is disposed of. In other words the Code provides for the trial of only one of two or many suits if the same issue is-directly and substantially involved, in order to save time and possibly a conflict in: the views taken by different Courts of concurrent jurisdiction with respect to the same matter. Nor does the section dispense with the necessity of instituting such suits. Under this section a suit cannot be said to be premature provided that there is valid cause for it. No authority is needed to support the aforesaid proposition for the section itself is clear, vide however the case of Namagauda v. Paresha 22 B. 640 : 11 Ind. app 1009. The learned Subordinate Judge is, therefore, wrong in holding that the present suit is either barred or that it is premature he is also wrong in dismissing the suit upon that ground.

The next question is, and that is the material question in the case, is the plaintiff entitled to recoup herself from the estate of Bibi Fasihan?. It is not denied that Rs. 36,500 paid by her to Girdhar Das was a debt over the estate of Bibi Fasihan under the mortgage executed by Bibi Fasihan on the 21st of November 1891, and that after her death in 1909 her heirs, and representatives took her estate burdened with that debt; and, before, they, can distribute among themselves, the assets of the estate and the properties of the deceased, it is incumbent upon them to discharge the said debt. Rupees 36,500 is part of the mortgage decree for the payment of which each and every property included in the mortgage is severally and jointly liable.

Sub-sequent to the mortgage Bibi Fasihan chose to execute certain deeds of gift referred to above in favour of some of her children preferring them to others, Muhammad Umar was one of-her children on whom her favour seem to have been bestowed and he was given 16-annas of the properties, whereas his share therein was only three annas. In 1912 some of Bibi Fasihan''s heirs objected to the deeds of gift made in favour of some, of her children on the ground that their shares in the properties of Bibi Fasihan were reduced, on account of the deeds in question and tins naturally led to litigation.

The plaintiff in this case took a mortgage of 16-annas of some of the properties conveyed to Muhmmad Umar by his mother after the suits that were instituted by the daughters of Bibi Fasihan, namely, Fatima, Saera and Salema. The plaintiff, no doubt, took the mortgage subject to the final decision in the case which was then pending and winch has now resolved itself unto the administration of the estate of Bibi Fasihan. Her claim under the mortgage is, as held by this Court, affected by the doctrine of lis pendens and possibly after the final administration her claim might be either reduced or wholly extinguished by reason of there being nothing left in Muhammad Umar which she could take as his mortgage. But that is the question which has to be decided because the plaintiff in her capacity as mortgagee is claiming under the mortgage executed by Muhammad Umar. We, in this case, are not concerned with that. Her position a mortgagee is relevent only in order to find out whether she had any interest or supposed interest in the properties of Bibi Fasihan so as to impel her heirs to pay the debt over the estate.

Now At the time when the plaintiff paid the money, the sale of the mortgaged properties was set aside but the properties had really not gone out of danger. The execution was proceeding and there was no order of the High Court in the appeals that were filed by the purchasers against the order of the Subordinate Judge setting aside the sales, to stay further proceedings in the execution, and from the record of the execution case we find that the Court as well as the decree holder was strenuously pursuing the properties in question and orders for the issue of sale proclamation had already been passed. Kahmuzaffar defendant No. 7 had already paved the way as to what should be done by one interested in the properties which were the subject of the mortgage of Girdhar Das Kesho Das. To him, as to Umar, 16 annas of another property Mahal Machhiarawan was given by their mother under tie deeds of gift. He settled with the decree-holder to pay a proportionate sum of the decree and to have this property sold last of all. Thus this property would be exempt from sale in the event of the entire sum due under the decree being realised by the sale of other properties or the liability would be in any case considerably diminished.

The plaintiff also resorted to the same remedy. She paid Rs. 36,500 as the proportionate share of Mahal Barowna and got an order from the court with the consent of the decree-holder to sell it after Kurmi Chak and Karnouti. This arrangement will not in any way affect the liability'' of the properties which were mortgaged to Girdhar Das and Kesho Das. That payment, whatever be the arrangement between the parties, was to go towards the satisfaction of the decree and as a matter of fact the Court directed that the said money be credited towards the satisfaction of the decree.

No doubt the record of the case has grown into an enormous magnitude and the case has been complicated, on account of the number of villages and the diversity of the interests held by the heirs. But me very statement of the case, so far as the present point is concerned, makes it simple. The order of the Court, as observed above, was that the amount paid by the plaintiff be, credited towards the decree and this was done. Now this, decree the heirs of Bibi Fasihan are bound to discharge. If the plaintiff had not paid the; proportionate amount of the decree viz., Rs. 36,500, it would have been realised by the sale of the mortgaged properties which had not then been sold, and it is immaterial whether the liability in the final adjustment of the decree in question would have fallen upon Mahal Barowna.

Now whose property was saved by this payment of Rs. 36,500? It was the property of Bibi Fasihan. Then the question that might be asked by the heirs of Bibi Fasihan is "why do you lay claim to the property Barowna and others". If the money was ,not paid by the estate, then the heirs of Bibi Fasihan would be found to, pay it; if not, the estate of Bibi Fasihan would be, sold, and in that, event probably the interest of the plaintiff would also have been extinguished. But that is no consideration for holding that the estate of Bibi Fasihan was not benefitted by that payment, The Receiver, as a matter of fact went to the length of paying Rs. 15,000 as compensation under the compromise decree of the High Court in order to prevent the sole of the properties including Barowna for whose sake--not-for-the sake of the plaintiff but for the sake of the heirs of Bibi Fasihan--the money was paid. Therefore, I have no hesitation in holding that the money was paid for the benefit of the property which at that, time the plaintiff thought belonged to, her, or there was a possibility of her having an interest in it; but at the same time the Receiver., as representing the heirs of Bibi Fasihan, thought that the property was, as a matter of fact, Bibi Fasihan''s. The question then is whether the lady was, interested in making the payment. She is a, mortgagee or the estate of Muhammad'' Umar. Muhammad, Umar is admittedly an heir of Bibi Fasihan and has an interest in the estate left by her, though not of 16 annas yet of 3 annas at least in all the mortgaged; properties, of the estate of Bibi Fasihan. I the property had been sold in execution of a prior mortgage-decree and not redeemed either by the mortgagor the pusine mortgagee, the puisne mortgagee would'' be sure to suffer and that was the position in which the plaintiff was placed. Therefore the plaintiff'' was interested in the payment of the money. It was through the court that she obtained a title under her sale certificate in execution of her decree and delivery of possession she lost possession of the property'' on account of the decision of this Court but she was always entitled to call upon the persons representing the estate of Bibi Fasihan to pay the debt that she had discharged in order to re-imburse her. This is to be gathered from the observation of Lord Macnaghten in the case of Dakhina Mohan Roy v. Saroda Mohan Roy 21 C. 142 : 20 I.A. 160 : 17 Ind. Jur. 576 : 6 Sar. P.C.J. 366 : 10 Ind. app. 727(P.C.). In that case the plaintiff obtained possession under the decree of ''the High Court of a revenue pay in estate and he paid the rent and cesses Indefault of which payment the estate would have been sold. The High Court decree was afterwards reversed by the Privy Council. In 1885 the defendant obtained possession of the estate in execution of the High Court decree, and the plaintiff claimed the revenue and cesses paid by him while he was in possession of the property. Their Lordships observed:

It seems to their Lordships to be common justice that when a proprietor in good faith pending litigation makes the necessary, payments for the preservation of the estate in dispute, and the estate is afterwards adjudged to his opponent, he should be recouped what he has paid by the person who ultimately benefits by the movement, if he has failed through ho fault of Ids own to reimburse himself out of the rents.

Now if Muhmmad Umar had made the payment, would he not have been entitled as heir of the three, annas share in the estate of his mother to ask the other co-heirs to contribute towards it? We find that this principle WJS accepted in the practical dealings with the estate in question, in the administration proceedings, and Kali-muzaffar one of the heirs, having a seven annas share paid off Rs. 65,000 in order to save the property Machhirawan, the sixteen annas of which was given to him, from being sold. The Receiver without any objection makes to sum a charge upon the estate of Bibi Fasil an and the Court sanctions it. Dulhin Sona Koer then sic into the shoes of Umar by reason of his mortgage which was a transfer of the property held by him in the true sense of the word and as defined in the Transfer of Property Act. Therefore, what Umar could do Sona Koer could also do. If she paid the money, as she did, she has as much right as Umar had (and this was recognised in the case of Kali-muzaffar) to ask the other heirs to contribute towards the payment and to recoup her on account of the money that she had advanced. Upon this principle, therefore, not only, Sections 69 and 70 will apply but various other sections of the Indian Contract Act, viz., Sections 43, 68, 69, 70 and 72. In a case of this kind one is not to be pinned down to a particular section of the Act but all the sections read together laid down the principle upon which one paying money out of his own pocket is entitled to recoup himself from those who either derive benefit out of it or are bound to pay. It is also immaterial whether, the person paying the money had a real interest or not. The word "interested" used in Section 69 cannot have such a narrow meaning. If bona fide one believes that he has an interest in property and not only as a pretext for having a claim against those who are bound to make the payment, there is no reason why the law should not compel the person ultimately benefitting by the payment to return the money to the payer.

In this connection I would like to refer to the authorities quoted in the judgment in Second Appeal No. 1067 of 1921 delivered by me on the 28th June 1923 Rang Lal Sahu v. Kali Shankar Sahai 7 Ind. Cas. 73 : 2 Pat. 800 : (1923) Pat. 353. The principles of those cases would apply therein but did not apply to the second appeal which was disposed of by me.

I, therefore, hold that the plaintiff is entitled to get back the money paid by her from the estate of Bibi Fasihan and, that this should be treated in the same way as the payment made by Kali-muzaffar.

We, therefore, set aside the decision of the Subordinate Judge and in its stead make a decree to the effect that the plaintiff is entitled to recover the sum of money claimed by her from the estate of Bibi Fasihan.

Then the question is Whether she is entitled to recover the rate of interest of one per cent, per month as claimed by her and which was stipulated in her mortgage-bond. This was the rate of interest and perhaps compound interest agreed to by Bibi Fasihan when she executed the mortgage bond in favour of Girahar Das-Kesho Das. The learnea Vakil on behalf of the respondents contends that 6 per cent, per annum should be allowed to the decree-holder inasmuch as that is the rate directed by the decree of the Subordinate Judge to be paid to Girdhar Das. That is no doubt the rate of interest on the amount of Giridhar Das'' decree but the payment made by the plaintiff was out of her own pocket and if the Receiver or the judgment-debtors had had to borrow money from outside in order to pay the decree they would have he to pay the market-rate of interest. That is the test which is applied to all such cases, and in our experience we know that when a decree has to be pail by a creditor he does not borrow money at the rate of interest mentioned if the decree but he borrows it at the market-rate, '' so the purpose '' for which the money was applied "would not determine '' the rate of interest but the rate of interest which was prevailing at the time. No evidence has been given in this case as to what the market rate of interest was at the time, nor has it been shown that the rate of interest mentioned in the bond is excessive or more than the market -rate prevailing at the time. Therefore, the bond rate must be deemed to be the market rate in the absence of any evidence to the contrary. But in the circumstances of the case compound interest is not allowable; nor has it been claimed. Therefore, simple interest only at the rate of one per cent per month will be allowed.

The result is that the decreed the Court below is set aside and in lieu thereof there will be a decree in favour of the plaintiff to recover from the defendants the sum of money claimed by her with future Interest at the rate of 6 percent per annum. The heirs of Bibi Fasihan are liable to the extent of the assets of the estate which have come into their hands. Bibi Fasihan''s estate being in charge of the Receiver he shall administer it in the administration suit and the decretal amount in question together with interest will be paid by the Receiver out of the joint assets of the estate of Bibi Fasihan. In doing so, the Receiver will take into account the liabilities of Dulhin Sona Koer and her successors-in interest of the estate. These liabilities will be set forth in the judgment in Civil Revision Cases Nos. 177, 291, 300, 309, 310, and 312 of 1923 which have been heard along with this appeal.

The appeal is decreed with costs.

Ross. J.

I agree.