Decided on August 26,1900



- (1.) The plaintiffs are the holders of a mortgage for Rs. 10,000 executed on the 24 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 Goundan, It will be convenient to deal first with this latter claim, as to which it is argued, firstly, that in 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 Rangayya Goundan's mortgage, some of the property which is included in the latter mortgage of the plaintiffs was sold and to that extent the plaintiffs security has been diminished. It was not competent to the plaintiffs, though they were parties to Rangayya Goundan's suit, to insist that he should prosecute his claim in the first instance; against the property other than that comprised in the plaintiffs mortgage, because the plaintiffs had notice of Rangayya Goundan's mortgage and therefore could not call in aid the provision of section. 81 of the 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 Rangayya Goundan's mortgage only,, to make them contribute to Rangayya Goundan's claim, inasmuch as 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 parson 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 the remainder of that 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 Rangayya Goundan'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 Rangayya Goundan's mortgage? Ex hypothesi, Rangayya Goundan'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 bad 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 recognize 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 be in a better position than they would be if they had simply bought part of the mortgaged property subsequently sold under Rangayya Goundan's decree, had the opportunity, and they might, by paying off the debt and saving the property from sale, have 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.
(3.) 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 I.L.R. 11 Mad. 452 at p. 457. 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 seam to justify the notion that Section 82 of the Transfer of Property Act has a wider operation Ibu Husain V/s. Ramdi I.L.R. 12 All. 110 at p. 114; Baldeo Sahai V/s. Baij Nath I.L.R. 13 All. 371 But the point does not seem to have been argued. The cases of Chagandas V/s. Gansing I.L.R. 20 Bom. 615 and Jagat Narain V/s. Qutub Husain I.L.R. 2 All. 807 are illustrations of the ordinary claim for contribution. In the passage cited in argument from Robbins on mortgages, volume 1, page 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 man 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, therefore, the suit as against the defendants interested in property X 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 Nos. 9, 10, 11 and 13 to 26, with coats payable to defendants Nos. 13 and 26.;

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