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Muhammad Yahya and ors. Vs. Rashid-ud-dIn and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Judge
Reported in1Ind.Cas.5a
AppellantMuhammad Yahya and ors.
RespondentRashid-ud-dIn and ors.
Excerpt:
transfer of property act (iv of 1882), section 82--contribution between co-mortgagors--right to sue--principle underlying the right of contribution. - - according to the view which i took in that case, the present suit was clearly maintainable. ) upon which reliance has been placed by the respondents' learned advocate, i did not decide, or intended to decide, that where a mortgage has been wholly satisfied, a co-mortgagor, who has discharged more than his rateable portion of the debt, is not entitled to contribution from his co-mortgagor. what was decided in that case was that until the entire mortgage debt has been satisfied a claim for rateable contribution could not be enforced. in this case before us the whole debt has been satisfied......by auction. the allegation of the plaintiffs is that their property has contributed towards the mortgage debt a much larger amount than that for which it was proportionately liable. the plaintiffs accordingly claimed the difference between the amount realised by the sale of their property and the amount of their proportionate liability. the court below has dismissed the suit simply on the ground that the whole of the mortgage money was not realised by the sale of the plaintiffs' property alone and in support of its opinion it has relied on the decision of this court in the case of ibn hasan v. brijbhukan saran 26 a. 407 (f.b.). in my judgment the court below has misunderstood that ruling. according to the view which i took in that case, the present suit was clearly maintainable. but.....
Judgment:

Banerji, J.

1. This appeal arises out of a suit for contribution, brought by the plaintiffs, in respect of a mortgage executed by them and by some of the defendants and the predecessors in title of other defendants. The mortgage was made on the 20th of August 1892, and a decree was obtained on the basis of it on the 11th July 1902. On the 22nd of April 1903, portions of the mortgaged property were sold by auction in execution of the decree and the whole amount of the mortgage was thereby discharged. One of the mortgagors whose property was sold has already sued for and obtained a decree for contribution. The present suit was brought by the plaintiffs for contribution against those of the mortgagors or their representatives whose interests in the mortgaged property were not sold by auction. The allegation of the plaintiffs is that their property has contributed towards the mortgage debt a much larger amount than that for which it was proportionately liable. The plaintiffs accordingly claimed the difference between the amount realised by the sale of their property and the amount of their proportionate liability. The Court below has dismissed the suit simply on the ground that the whole of the mortgage money was not realised by the sale of the plaintiffs' property alone and in support of its opinion it has relied on the decision of this Court in the case of Ibn Hasan v. Brijbhukan Saran 26 A. 407 (F.B.). In my judgment the Court below has misunderstood that ruling. According to the view which I took in that case, the present suit was clearly maintainable. But even according to the opinion of the majority of the Judges who decided that case the suit is also maintainable. What was held in that case was that unless the whole amount of the mortgage has been discharged a suit for contribution was not maintainable. In the present case the whole of the mortgage money has admittedly been realised by the sale of the property of some of the mortgagors and therefore the plaintiffs have a right of contribution, if the sale of property has discharged more than their rateable share of the debt. The question in the case referred to above was whether a suit for contribution could be maintained unless the whole amount of the mortgage was discharged and the majority of the Judges constituting the Bench answered this question in the negative. It was not held that a plaintiff seeking contribution must be the person who has discharged the whole mortgage. If the whole of the mortgage debt has been paid off a right of contribution undoubtedly arises. The Court below therefore was wrong in dismissing the suit on the preliminary ground on which it dismissed it and the case must be remanded for trial on the merits.

Stanley, C.J.

2. I agree. In my judgment in Ibn Hasan v. Brijbhukan Saran 26 A. 407 (F.B.) upon which reliance has been placed by the respondents' learned advocate, I did not decide, or intended to decide, that where a mortgage has been wholly satisfied, a co-mortgagor, who has discharged more than his rateable portion of the debt, is not entitled to contribution from his co-mortgagor. What was decided in that case was that until the entire mortgage debt has been satisfied a claim for rateable contribution could not be enforced. The case of lbn Husain v. Ramdai 12 A. 110 was I think rightly decided. In this case before us the whole debt has been satisfied. The right to contribution rests upon the principle that a property which is equally liable with another to pay a debt shall not be relieved of the entire burden of the debt because the creditor has been paid out of that other property alone.

3. The order of the Court is that the appeal is allowed and the decree of the Court below set aside and inasmuch as the suit was decided on a preliminary point, we remand the case under the provisions of Section 562 of the Code of Civil Procedure, with direction that it be re-admitted on the file of pending suits in its original number and be disposed of on the merits. The appellants will have the costs of this appeal including fees on the higher scale. All other costs will abide the event.


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