Decided on August 28,1900



- (1.) The plaintiffs are the holders of a mortgage for Rs. 10,000 executed on the April 1889.Besides seeking to enforce the ordinary remedies of mortgagees against their mortgagors and against the property comprised in the mortgage, they claim on the principle of contribution to charge any balance which may still remain due to them against certain other property which,. with the property comprised in their own mortgage, was included in a prior mortgage executed in favour of Rangayya Gounden. It will be convenient to deal first with this latter claim as to which it is argued firstly, that that point of law it cannot be maintained, and, secondly, that it cannot properly be joined in a Suit by the mortgagee on his own mortgage. The claim arises in this way:
(2.) In execution of the decree on Rangia Gounden's mortgage some of the property which is included in the later mortgage of the plaintiffs was sold, and to that extent the plaintiffs security has been diminished. It was not compelent to the plaintiffs, though they were parties to Rangia Gounden's suit, to insist that he should prosecute his claim in the first instance against the property other than that comprised in the plaintiff's mortgage because the plaintiffs had notice of Rangia Gounden's mortgage and, therefore, could not call in aid the provision of Section 81 of Transfer of Property Act. Their case is that they being interested in property X comprised in both mortgages are entitled as against the defendants who have become possessed of property Y comprised in Rangia Gounden's mortgage only, to make them contribute to Rangia Gounden's claim, inasmuch a that claim has been paid off out of property X. It is not necessary to consider the effect of Section 56. The question is whether under Section 82 of the Act the plaintiffs have any legal claim against a third person in possession of property Y. The second paragraph of the section clearly has no bearing on the present case; for that paragraph merely deals with a case in which, the first mortgage having been paid off out of the only property comprised in it, it remains to be determined how the second mortgage debt is to be borne as between that remainder of the property and another property which is. also made security for the second debt. In such a case contribution works not in favour of the second mortgagee but in. favour of other persons interested in one or other of the two properties comprised in his mortgage. Nor do we think that the first paragraph of the section is applicable in the circumstances of the case. If the plaintiffs, instead of taking a mortgage on the 24 April 1889, had bought the property then mortgaged to them and had as purchasers, been included in Rangia Gounden's suit and had allowed that property to be sold under his decree, what possible right could they have had to claim compensation at the expense of persons interested in other property included in Rangia Gounden's mortgage? Exhypethesi Rangia Gounden's claim has been satisfied, and nothing has been done to keep his lien alive for the benefit of the plaintiffs. The first paragraph does not provide for the keeping alive of the lien after the mortgage debt has been paid, for it merely declares the manner in which the debt shall be borne by the several properties. It would come into effect when the administration of the estate of the mortgagor was under consideration and may be taken to recognise a lien possessed by the person, who being interested in one of the mortgaged properties, pays off the debt and so acquires a right of contribution; but we do not think that the section gives any further right. In the present case the plaintiffs, who certainly cannot fee in a better position than they would be if they had simply bought part of the mortgaged property subsequently sold under Rangia Grounden's decree, had their opportunity, and they might by paying off the debt and saving the property from sale,havg acquired a right of contribution secured by a lien on the other property. They would then have stood in a position analogous to that of one of several mortgagors who has redeemed the whole property and claims to take advantage of Section 95 of the Act. But the plaintiffs did nothing and, therefore, no right of contribution arose, and the other property stood free from any lien. The principle of contribution is not peculiar to the law of mortgage. Whenever estates are subject to a common demand and that demand is satisfied by the person interested in one of them, he has the right to call upon the other owners to contribute, and, if the demand was on account of land revenue payable to Government it has been held in this Court that he has in addition a lien on the land of others forming part of the entire estate in respect of which revenue was payable Seshagiri V/s. Pichu, l. It has never been suggested that, in such cases, any lien could come into existence unless there had been an antecedent payment and a consequent right of contribution. We are aware that in the Allahabad High Court there are cases which seem to justify the notion that Section 82 of the Transfer of Property Act has a wide operation Ibn Husain V/s. Bamdai (1899) 2 Q.B. 7. Baldeo Sahai V/s. Baij Nath, bb L.R. Ex. but the point does not seem to have been argued. The cases reported in I. L. R, 20 B. 615 Chagandas v, Gansing and Jagat Narain v Qutub Husain, are, illustrations of the ordinary claim for contribution, In the passage cited in argument from Robbins on Mortgages (Vol. 1, p. 779) it is stated that one of the owners has paid off the debt, and there is a close resemblance between the language of that paragraph and the language of the section. In our opinion Section 82 does not justify the notion that a mats who has bought a property which at one time was, with other property, subject to a mortgage may, after the mortgage debt has passed into a decree and after the decree has been satisfied by the sale of that other property, be held responsible for part of the mortgage debt and, there-foro, the suit as against the defendant interested in property Y was rightly dismissed. If the claim were maintainable, we should also be prepared to hold that it ought... not to have been joined with the ordinary claim on the mortgage. Accordingly we dismiss the appeal as regards respondents 9, 10, 11 and 13 to 26, with costs payable to defendants 13 and 26.
(3.) It remains to consider the question raised by the 9 ground of appeal and also the objections taken on behalf of the 1 and 2nd respondents. The objections actually argued resolve themselves into the question whether, in view of the fact that the plaintiffs had another mortgage of even date comprising the same property and had obtained a decree OR that mortgage, they could maintain this suit. It appears that, on the 24 Aprill 1889, besides the mortgage already mentioned for Rs. 10,000, another mortgage for Rs. 500 was exeeuted in the plaintiffs favour. It cannot be doubted that it was owing to the accident that the plaintiffs already had a stamped paper which sufficed for a Rs. 500 mortgage that the transaction was split up into two In 1891 a suit was brought on the Rs. 500 mortgage; decree was passed and under the decree some property was sold to the present 5 defendant, In the plaint it instated that this sale was made subject to the plaintiffs mortgage for Rs. 10,000, and the averment, so far from being denied by the defendants, is admitted by the 2nd and 5th defendants It is argued however, on their behalf that Section 43 of the Civil P. C. prohibits the institution of the second suit which is now brought. Regarding the case as one of a mere personal claim on the instrument of mortgage, we think it is clear that Section 43 does not apply. It may be true that the term " cause of action is used in that section in a peculiar way, but we do not think that when parties, for whatever reason, choose to agree that there should be two instruments and two obligation the Courts are justified in saying that there is only one obligation.;

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