1. This is a defendants' appeal arising out of a suit for contribution which was treated by the first court as a suit for the enforcement of a lien of the vendor for the unpaid purchase money.
2. In 1911 a mortgage-deed was executed by Raghunath Singh hypothecating a half share in a grove and a zamindari property to Chhange Lal. Later in the same year Raghunath Singh along with the guardian of Sita Ram Singh sold the grove to Aziz-ud-din and Imam-ud-din, leaving money in the hands of the transferees for payment of the entire mortgage money due to Chhange Lal, Subsequently imam-ud-din transferred his interest in the grove to Aziz-ud-din and then the latter acquired the whole interest in the grove from Aziz-ud-din in 1916. There was a stipulation in the deed that lmam-ud-din would pay the whole of the mortgage money.
3. Sita Ram instituted a suit for the cancellation of the deed executed by his guardian which succeeded. Then Sita Ram transferred to Lachhmi Narain his share in the grove. This share was obviously free from the mortgage of 1911 Later on Imam-ud-din tranferred his interest in the remaining half of the grove to Lachhmi Narain in 1917. In the sale deed taken by Lachhmi Narain the property was professedly sold free from all incumbrances and there was no reference to the mortgage-deed of 1911. Thus Lachhmi Narain contracted in express terms not to undertake the liability to discharge the amount due under the mortgage of 1911. The defendants-appellants are the representatives of Lachhmi Narain. The plaintiff Kishore Mohan in 1918 purchased half the zemindari share of Raghunath Singh, that is to say, his equity of redemption in the share subject to the mortgage of 1911.
4. The mortgagee of 1911 then brought a suit and obtained a decree and put up the entire mortgaged property for sale at auction. The plaintiff, Kishore Mohan paid the whole of the decretal amount and saved the property of all the mortgagers from sale. This was on the 20th of January 1923. He then on the 23rd of January 1924 filed the present suit claiming the whole of the amount which he had paid in discharge of the mortgage decree. The defendants pleaded that the claim was barred by limitation and that the plaintiff was not entitled to any amount whatsoever from the defendants. The courts below have held that the claim is not barred by limitation and that the plaintiff was entitled to the whole amount.
5. So far as the question of limitation is concerned the learned Advocate for the appellants has to concede that the latest case of this Court Aziz Ahmad Khan v. Chhote Lal : AIR1928All241 , is against him. The payment was made at a time when the Old Transfer of Property Act, was in force. We are therefore not concerned with the effect of the recent amendment. With regard to Section 95 of the Old Act their Lordships of the Privy Council in the case of Ahmad Wali Khan v. Shamsh-ul-Jahan Begam 28 A. 482 : 10 C.W.N. 626 : 3 A.L.J. 330 : 3 C.L.J. 481 : 1 M.L.T. 143 : 8 Bom. L.R. 397 : 16 M.L.J. 269 : 33 I.A. 81 : 8 Sar. P.C.J. 918 (P.C.) remarked that
the construction of Section 95 of the Transfer of Property Act, should not limit its operation to mortgages under which possession passes, and therefore on redemption properly repasses: the better way is to construe it distributively, to mate the condition of obtaining possession apply only to the cases in which its fulfilment is from the nature of the mortgage possible, and in other cases to make the charge follow on redemption.
6. It is clear that their Lordships intended to lay down that on redemption of the mortgage property by one of the several mortgagors, even in case where the mortgage was not a possessory one, a charge accrued in favour of the mortgagor who discharged the mortgage. Reading Sections 82, 95 and 100 of the Transfer of Property Act in the light of the observation made by their Lordships of the Privy Council there can be no doubt that a mortgagor redeeming the whole mortgage was entitled to enforce the charge against his co-mortgagors. The right to enforce it obviously accrued on the date of payment. The Article applicable to such a claim would obviously be Article 132 of the Limitation Act. It was therefore impossible to hold that if 12 years had expired by the time the mortgage-decree was passed on the mortgage and one of the mortgagors paid up the whole amount he had no remedy left. We are therefore of opinion that the suit was really one for contribution and was not barred by time.
7. On the other band it is very difficult to say that the plaintiff should be allowed to recover the whole amount paid by him. He is a representative of Raghunath Singh, so far as the zemindari share is concerned. This zemindari share was mortgaged along with the grove and was rateably liable for the mortgage money. Taking the case at its highest in favour of the plaintiff there was a lien on account of the unpaid purchase money in favour of Raghunath the vendor of the grove and later on in favour of Aziz-ud-din who transferred the grove to Imam-ud-din. The defendants' predecessor was the subsequent transferee of this grove. The plaintiff cannot claim to have acquired the lien of Raghunath Singh in respect of the unpaid purchase money of the grove because he has only acquired the zemindari property which was distinct and separate from the grove. Whatever remedies Raghunath himself or for the matter of that Aziz-ud-din might have had, it is difficult to say how the present plaintiff can enforce such a lien against the defendants. The plaintiff ought to contribute pro tanto to the extent of the value of the property purchased by him and can only get a decree for the proportionate amount against that defendants who have acquired the grove. As the rateable liabilities of the properties have not been gone into by the courts below we think that it would be just and fair to send down an issue on this point. The legal position of the parties was not practically understood by the courts below and that is why no proper issue was framed as regards the rateable liabilities of the various properties
8. What were the relative values at the time of the mortgage dated the 3rd July 1911 of the properties now held by the plaintiff and the defendants-appellants respectively
9. As this is a new issue we direct that the parties should be allowed to produce any fresh evidence which they choose to produce.
10. The lower Appellate Court will be at liberty either to take the evidence itself or direct the Court of first instance to record the evidence, but it will however submit its own finding on the evidence within three months.