1. In October 1895, Imam Jan mortgaged her shares in two villages, Jamalpur and Bangaon to, Akbar Ali for Rs. 700. Subsequently, the share in each village was made a separate mahal of 16-annas. On her death, a 10-annas share in the mahalin Jamalpur and a 7 1/2-annas share in the mahal in Bangaon devolved upon two ladies, Musammat Hajira and Musammat Walia. The remainder of her property devolved upon other people with whom we are not concerned. On July 7th, 1893, Hajira and Walia mortgaged a 7 1/2-annas share in Jamalpur and a 5-annas odd share in Bangaon to Abbas Ali for Rs. 600 and on January 26th, 1893, they mortgaged a 10-annas share in Jamalpur and a 7 1/2-annas share in Bangaon to the same person for Rs. 393. On April 10th, 1900, they sold the share in Bangaon to the plaintiffs, who are the heirs of Akbar Ali, for Rs. 1,800. Of this amount, Rs. 199 were paid by the plaintiffs in cash; Rs. 515 were retained by them on account of the mortgage of October 17th, 1895; Rs. 600 were left in their hands in order that they might pay off the mortgage to Abbas Ali of July 7th, 1898, and Rs. 483 were left with them in order that they might pay off the mortgage to Abbas Ali of January 26th, 1899. 1,086 rupaya zar-i-yaftani Abbas Ali taaluk mushtarian kardya; chayiye ke mushtarian Jeth 1307 F. men ada karke pusht dastawez bharpai mahajan mazkur ke hath se likhwake wapas kar lewen). On May 13th, 1901, the two ladies took Rs. 200 from the plaintiffs and in modification of the arrangement stated in the sale-deed of April 10th 1900, the plaintiffs undertook to pay the mortgagee Abbas Ali Rs. 886 in Jeth 1309 Fasli and the ladies undertook to pay him Rs. 200. On April 3rd, 1902, the ladies sold the 7 1/2-annas share in Jamalpur to defendants Nos. 2 to 7 stating that it was free from encumbrances and the remaining 3-annas share in Jamalpur was sold to defendants Nos. 1 & 2 by deeds of April 12th, 1507, and June 13th, 1908, also 'free from encumbrances.'
2. The plaintiffs failed to make any payment to Abbas Ali and the two ladies also failed to pay him the sum of Rs. 200. He accordingly put his mortgages in suit, obtained a decree and had portions of the shares in the two villages proclaimed for sale. The plaintiffs paid Rs. 2,756 into Court to stop the sale and brought the present suit in August 1909 to enforce contribution out of the share in Jamalpur of its rateable shares of the sum paid by the plaintiffs.
3. The plaintiffs' case is that the share in Jamalpur purchased by defendants was liable to contribute rateably to the amount secured by the mortgages in favour of Abbas Ali and is, therefore, liable to contribute to the amount which the plaintiffs had to pay in order to save the properties from sale.
4. The defence was, that it was on account of the failure of the plaintiffs to redeem the mortgages of Abbas Ali with the money left in their hands for the purpose that the properties were proclaimed for sale and, therefore, the plaintiffs have no right to claim contribution from the share sold to the defendants. The latter pleaded also that they had no notice of the agreement of May 13th, 1901.
5. The Courts below have held that the agreement of May 13th, 1901, was a lawful and valid agreement; therefore, the plaintiffs were not bound to redeem the mortgages in full in the manner contemplated by the gale-deed of April 10th, 1900. They have debited the plaintiffs with the amounts payable by them under the agreement of May 13th, 1901, with interest thereon and subject to that, have allowed the claim.
6. This is a second appeal by the defendants who contend that they are not bound by the agreement of May 13th, 1901, and that the plaintiffs have neither in law nor in equity any claim against the share purchased by the defendants. The plaintiffs, on the other hand, take their stand on the first paragraph of Section 82 of the Transfer of Property Act and say that they might have insisted upon a decree for a larger sum than that allowed by the Courts below on the ground that the defendants were not. concerned with and cannot enforce directly or indirectly the agreement made between the plaintiffs and their vendors.
7. The agreement of May 13th, 1901, seems to us to be open to no objection. It was made before the defendants acquired any interest in the property and the defendants have no better claim to disregard it than they have to disregard the sale to the plaintiffs. Both the sale and the agreement are evidenced by registered documents and the two documents read together show the arrangement made between the plaintiffs and their vendors.
8. It has not been contended that there was a contract to the contrary within the meaning of those words in Section 82 of the Transfer of Property Act. Therefore, the shares purchased by the plaintiffs and defendants respectively were originally liable to contribute rate-ably to the mortgage-debts. The defendants were not parties to the agreement between the plaintiffs and the vendors and the benefit of the agreement was not in any way annexed to the share in Jamalpur so as to pass to the holders of the share for the time being. If the defendants are entitled to resist the claim for rateable contribution, it must be on equitable grounds or because the benefit of the agreement has been assigned to them.
9. The right to enforce contribution in a case like this is essentially an equitable right. The two shares were, as we have said, liable originally to contribute rateably to the mortgage-debts but the rights of the parties may have been altered by the events which have happened since. The question is whether the shares were liable to contribute rateably to the mortgage-debts when the plaintiffs made the payment in respect of which contribution is claimed. It is clear that, as between the vendors and the defendants, the latter are entitled to hold the share in Jamalpur free from liability to contribute to the mortgage-debts and that, as between the vendors and the plaintiffs, the latter are bound to discharge the greater part of those debts. The plaintiffs were supplied with, funds for that express purpose. It was not the intention of any of the parties concerned after April 10th, 1900, that the shares in the two villages should contribute rateably to the mortgage-debts. This circumstance serves to distinguish the present case from that of Mothoora Nath v. Kristo Kumar 4 C. 369 and also from that of Seshagiri Ayyar v. Vythilinga Pillai 33 M. 211 : 4 Ind. Cas. 1049 : 6 M.L.T. 119.
10. The plaintiffs agreed to discharge the greater part of the mortgage-debts and if they had done so at the time stated in their agreement with the vendors, they would have been considered to have done so out of the funds supplied to them for the purpose and would not have been entitled to claim contribution either from their vendors or from subsequent purchaser of the property in respect of the payments so made. The fact that the plaintiffs made the payments at a later date and under pressure of a threatened sale of the property, can, in our opinion, make no difference in the right of the parties. The Courts below debited the plaintiffs with interest on the amount which they should have paid in September 1902 in reduction of Abbas Ali's debt. We think that they were right in doing so for when contribution is ordered between different funds, each of them ought to be placed in the same position as if it had contributed its proper proportion at the time at which it ought to have done so and, therefore, the fund cannot contribute interest. Ashworth v. Munn 34 Ch. D. 391 : 56 L.J. Ch. 451 : 56 L.T. 6 : 35 W.R. 513.
11. We think, therefore, that the decree of the Court below is correct as regards the liability of the parties to contribute to the amount paid to discharge Abbas Ali's mortgages.
12. The plaintiffs have been given a decree for Rs. 345-14-8 as the amount which the share in Jamalpur is liable to contribute towards a sum of Rs. 515 which is included in the amount paid by the plaintiffs. It appears to us that the plaintiffs are not entitled to a decree for this sum. As stated above, Rs. 515 were retained by the plaintiffs as the amount due tinder the mortgage of October 17th, 1895, upon the shares inherited by Hajira and Walia. When Abbas Ali sued upon his mortgages, the plaintiffs set up the mortgage of October 17th, 1895, and Abbas Ali was required to pay Rs. 515 to the plaintiffs on account of that mortgage before bringing the property to sale. He paid the money to them and they paid it back to him as part of the sum of Rs, 2,756. They now claim to have the sum of Rs. 515 distributed rateably over the shares in the two villages. They are not entitled to have this done for they retained Rs. 515 out of the purchase-money when they bought the share in Bangaon.
13. We, therefore, allow the appeal as regards the sum of Rs. 345-14-8 and interest thereon with proportionate costs here and in the Court below. In this Court costs will include fees on the higher scale. We extend the time for payment to September 20th next.