Masud, J. -
(1.)This reference has arisen out of an appeal preferred against the judgment and decree of Ray J., as his Lordship then was, dismissing the appellant's suit against the respondent for a declaration of charge on premises No. 79 Raja Naba Kissen Street, Calcutta for a sum of Rs. 24,442/15/0p., being the consolidated rates with interest due and payable by the respondent. During the hearing of the appeal before Sinha C. J. and myself a point of law arose for decision to the following effect:
"Whether a mortgagee could release one of the mortgagors and his security and sue for realisation of the entire mortgage claim from the remaining securities."
It was held by a Bench decision of the Court presided over by B.K. Mukherjea, J., in Taran Roy v. Shyam Mondal, AIR 1942 Cal 226 that the mortgagor could not do so and if a mortgagor releases part of the security and proceeds against the other part, he can only get a decree for a proportionate amount. Having heard arguments of the parties, with respect to Mukherjea, J., we were unable to accept the principles of law laid down in that decision. Before the said Division Bench a Privy Council decision, Shah Ramchand v. Pandit Parbhu Dayal, 69 Ind App 98 = (AIR 1942 PC 50), was placed where the Judicial Committee held that in a suit for redemption, it is not open to the mortgagor to claim partial redemption and that the mortgage debt was one and indivisible. The Privy Council has, however, doubted whether a mortgagee can be affected by releasing part of a security and whether the views taken by the Calcutta High Court in several decisions are correct. At that stage, we were of the view that if the mortgage debt was only one and indivisible debt which could be realized from every part of the security then there was no reason why it was not open to the mortgagee to enforce the whole debt against a part of the security only. Since this view was not in consonance with the Bench decision in Taran Roy v. Shyam Mondal, (AIR 1942 Cal 226) (supra), the matter was referred to the Full Bench for a final decision on the said point. The reference is not limited to a specific question only as it is sometimes done but the entire appeal has been referred to us for its final disposal.
(2.)It may be stated here that in the original plaint the Corporation of Calcutta claimed a sum of Rs. 24,442/15as. on account of consolidated rates with interest payable in respect of the said premises, declaration of first charge on the said premises for the said sum under Order XXXIV, Rule 4 according to Form No. 5 (a) Appendix D to the Schedules of the Code of Civil Procedure. Initially the premises No. 79, Raja Naba Kissen Street, Calcutta, were not set out in the plaint. Admittedly, the land in respect of the said premises belongs to the respondent. The State of West Bengal requisitioned the said land and took possession on April 7, 1945 by a Memorandum of Agreement dated 17-9-1946. The material portions of the said Agreement read as follows: "..... AND WHEREAS the said property consist inter alia, of land AND WHEREAS the owner and the Government have mutually agreed to settle the amount of compensation payable by the Government to the owner in connection with the said requisition in the manner hereinafter appearing, now this agreement witnesseth as follows: 1. The Government shall pay and the owner shall accept and receive a payment of Rs. 675/- (inclusive of taxes) for the month for the said property with effect from the said date i.e., 7-4-1945, so long as the Government shall remain in possession thereof and the requisition continues. 2. The owner shall not claim or be entitled to any further compensation in lieu of land beyond the amount fixed and accepted by him in connection with the said requisition. 3. The owner shall meet and pay the revenue rent, municipal taxes and all other outgoing expenses relating to the said property whether payable by the owner or the occupier thereof. 4. .................................... 5. .................................... Schedule above referred to: Premises No. 79, Raja Naba Kissen Street, situated in the City of Calcutta". It is the common case that the State of West Bengal has constructed building on the said land and the State of West Bengal is the owner of the building on the said land. The respondent in the written statement admitted his liability to pay his share of the consolidated rates as owner of the land and denied the liability to pay the entire consolidated rates of the said premises amounting to Rupees 24,442/15as/0p. It was also pleaded that the suit was bad for non-joinder of necessary party i.e., the State of West Bengal. Ray, J., after discussing some decisions of this Court held that a decree of charge on the building in the absence of the State of West Bengal not being a party to suit cannot be passed and, as such, he dismissed the suit on March 27, 1962. Thereafter, on November 19, 1962, this appeal was filed. Before the appeal Court, the appellant made an application for amendment of the plaint and on August 30, 1963, the amendment was allowed, as prayed for, with liberty to the respondent to file additional written statement. In the amended plaint a Schedule of description of the said premises was added. Material portions of which are as follows:
"All that the lands and structures comprised in premises No. 79, Raja Naba Kissen Street, in the town of Calcutta, containing by estimation 1 Bigha and 8 Cottahs to the same a little more or less. .................."
In the body of the plaint, the appellant added, inter alia, that the claim of the appellant was
"in respect of the lands comprised in the said premises and/or in respect of the right, title and interest of the defendant in the said premises". It was also pleaded in the amended plaint that if the respondent would be held to be the owner of the land in the said premises only and not of the structures, the appellant would be entitled to a declaration of first charge under the provisions of the Calcutta Municipal Act, 1951 for the said sum of Rs. 24,442/15as. or for such proportionate part of such sum as the court might deem fit in respect of the said lands. It was also mentioned that in such a case the appellant would agree to pray for the said charge on the basis that the appellant would abandon and release the said structures from such charge. The substantial prayer in the amended plaint reads as follows: "A declaration of first charge on the said premises or the said lands and/or the right, title and interest of the defendant in the said sum of Rs, 24,442/15as. or such proportionate part thereof as to this Hon'ble Court may deem fit."
In the amended written statement of the respondent, it was pleaded that the appellant was not entitled to a declaration of first charge for the said sum or for any other sum on the said land, inasmuch as, the State of West Bengal, not being a party to the suit, was the owner of the structures on the said land. Further, the respondent stated that the appellant had not elected to release the said structures from the said charge and, as such, the appellant was not entitled to release the statutory charge on a part of premises No. 79, Raja Naba Kissen Street, Calcutta. Nor could a decree be made for a proportionate part of the said consolidated rates as such apportionment could not be determined in the absence of the State of West Bengal.
(3.)Before this Full Bench Mr. A. Mitra counsel for the appellant with Mr. J. Mitra has strenuously contended that his client is entitled to get a declaration of charge in respect of the lands in the said premises and also the respondent's interest in the building under the Calcutta Municipal Act, 1951 in the absence of the State of West Bengal, inasmuch as his client has agreed to release his claim for a declaration of charge on the structures which belong to State of West Bengal. Relying upon several Indian decisions of different High Courts including the said Privy Council decision, he has argued that the mortagage debt is one and indivisible and there is a statutory charge on all parts of the security i.e., on the land and the structures under the Calcutta Municipal Act, 1951. Analogous to the law of mortgage, the appellant has the statutory right to get a declaration of charge on one of the securities for consolidated rates on releasing the other security. According to him, the Bench decision in Taran Roy v. Shyam Mondal (AIR 1942 Cal 226) is no longer a good law and there is no question of any hardship on the part of the respondent against whom the charge is sought, inasmuch as, he always has the right of contribution against the owner of other security, in the present case the State of West Bengal. It is also urged by him that the suit has not been instituted against the respondent on the basis of the presonal liability of the owner of the land and the building thereon under Section 191 of the Calcutta Municipal Act. His client has prayed for a declaration of a charge on the said premises under Section 253 of the said Act. As the liability to pay the consolidated rate is one in respect of the land or building and the declaration of the charge has been sought for on the land only, the owner of the structure being the State of West Bengal need not be a necessary party. According to him, Ray, J., has, therefore, erred in dismissing his client's suit.