- (1.) This appeal which raises an interesting question as to the interpretation of Section 82, Transfer of Property Act, has been brought by the Defendant against concurrent decrees made against him in a suit for contribution under Section 82, Transfer of Property Act. The facts which are undisputed are as follows: One Shib Chandra Das mortgaged 10 items of property to secure a loan advanced by one Ram Ranjan Hati. After the mortgage, lot No. 1 was sold to the Plaintiff for Rs. 500, lot No. 2 to the Defendant for Rs. 700, lots 7 and 8 were sold away in a rent and revenue sale and lots Nos. 9 and 10 were sold to one Kalidas Das (pro forma Defendant No. 2) and Hari Prosad Dutt (pro forma Defendant No. 3) for Rs. 150 each. In execution of the mortgage decree, the mortgage in the first instance brought lots Nos. 3 to 6 to sale in Title Execution Case No. 73 of 1944 and realised a sum of Rs. 2,028 in partial satisfaction of his claim and then applied for sale of the remaining lots 1, 2, 9 and 10, which as I have already said passed to the Plaintiff, Defendant- Appellant and pro forma Defendants 2 and 3 and the executing court ordered the properties to be sold one after another. In order to protect his own property, viz., lot No. 1, from sale the Plaintiff deposited a sum of Rs. 1,014-6-9 in the executing court whereupon the execution case was dismissed on full satisfaction. The Plaintiff then brought the present suit for contribution against lot No. 2 owned by the Defendant. In decreeing the suit, both the courts below have taken the value of lot No. 1 as Rs. 500, lot No. 2 as Rs. 700 and lots Nos. 9 and 10 as Rs. 150 each. Lots Nos. 3 to 6 which were sold in execution of the mortgage decree and lots Nos. 7 and 8 which were sold away in rent and revenue sale have not been valued at all and the amount to which lot No. 2 has been held liable to contribute is Rs. 1,014-6-9. No decree has been passed against lots Nos. 9 and 10 held by pro forma Defendants 2 and 3 because the Plaintiff alleged in his plaint that pro forma Defendants 2 and 3 had paid their proportionate contribution to the Plaintiff. There was some controversy between the parties as to the values of the different lots at the date of the mortgage, but the values, as stated above, have been found to be the true values by both the courts below and have not been challenged before us. The principle upon which the Plaintiff's suit has been decreed by the courts below, therefore is this: Value of lot No. 2 at the date of the mortgage The balance of the mortgage debt that X remained unsatisfied after the sale in execution of the mortgage decree. Such value of all the properties that were ex ded from the sale in execution of the mortgage decree." i.e.,700/1,500,X1,041-6-9. It may be mentioned that the total dues of the mortgages under the decree ex. 11 = Rs. 3,048.
(2.) It is the legality of the aforesaid principle that is challenged before us on the ground that it is not warranted by Section 82, Transfer of Property Act.
(3.) After hearing learned advocates on both sides it seems to me that the first question that arises for consideration in this appeal is: what is the point of time at which the liability of the different mortgaged properties to contribute to the debt secured by the mortgage arises? Does it arise on the date on which a redeeming co-mortgagor pays more than the proportionate share of his liability or on the date of the execution of the mortgage or the date when the ownership of the different lots passes to different persons? The language of Section 82 indicates that the liability to contribute arises as soon as the ownership of the mortgaged property passes to different individuals. The property which is subject to. mortgage may belong to different persons at the date of the mortgage and the different co-owners may join in executing the mortgage or the property which was at the date of the mortgage under the ownership of a single individual may come to be owned by different persons by succession, partition and assignment. In the former case the liability to contribute attaches to the different shares from the very date of the mortgage and in the latter case the liability attaches on the date of succession, partition and assignment. This liability becomes enforceable under the law whenever a co-owner has paid more than his proportionate share of the liability. It is in my opinion, a mistake to suppose that the liability to contribute arises only when a co-owner has paid more than his share. The liability is already there and it can be enforced only when one co-sharer has paid more than his proportionate share of the debt secured by the mortgage. On the happening of that contingency the liability of the different mortgaged properties held under different ownership has to be worked out by reference to the point of time when the ownership of the different items of mortgaged property passed to different individuals.;