1. This is an appeal by the plaintiff's from the decree of the learned District Judge of Gorakhpur affirming the decision of the learned Subordinate Judge of the same place and arises out of a suit for contribution.
2. On 18th April 1895, one Sarjoo Prasad, father of defendants-respondents 1, 2 and 3, executed a deed of simple mortgage in favour of Thakur Prasad Naik in respect of ten items of property detained below:
(1) Kaithaulia ... 4 annas(2) Kona ... 4 annas(3) Mahwar Kol ... 1 anna 3 pies(4) Shikargarh ... 8 pies(5) Dayalgarh ... 4 annas(6) Barahra ... 4 annas(7) Sarar ... 4 annas(8) Rampur Khas ... 6 pies(9) Teona ... 6 pies(10) A tiled house in village Kathaulia
3. Later on Sarju Prasad executed a deed of simple mortgage in respect of only two of the properties indicated above, viz. Mahawar Kol and Shikargarh, in favour of one Ram Harakh. The latter sued on his mortgage, obtained a decree and in execution thereof purchased the shares in Mahawar Kol and Shikargarh. On 5th September 1919 plaintiffs purchased from Sital Thakurai and others, who were the heirs of Ram Harakh, the entire 8 pies share of Shikargarh and a 7-1/2 pies share of Mahwar Kol. The remaining 7-1/2 pies share of Mahwar Kol was purchased by one Kalap Nath Rai.
4. On 13th February 1911, Ganga Prasad Naik and others, who were the heirs 'of Thakur Prasad Naik, brought a suit in enforcement of the simple mortgage dated 18th April 1895 against Sarjoo Prasad, his sons and his transferees. This was Suit No. 46 of 1911. Ram Harakh was a party to this suit. A decree was duly passed on 31st January 1912. In execution of this decree the two items of property in Mahwar Kol and Shikargarh, which had been purchased by the plaintiffs were sold at auction to a third party on 20th March 1922. Within 30 days of the auction sale, the plaintiffs deposited in Court the entire amount of the decree, i. e., Rs. 2,779-10-0 as also the statutory penalty, Rs. 160 and got the auction sale set aside.
5. The present suit for contribution was brought on 20th March 1925 and the claim was sought to be enforced against the following five properties: (1) Kona, (2) Ram pur Khas, (3) Teona, (1) Sarar and (5) the tiled house at Kaithaulia.
6. The plaintiffs claim contribution in so far as they had to discharge more than their legitimate share out of the common burden. But in framing their claim they have not, as they should have done, asked for a definernent of the respective liabilities of the several defendants. The plaintiffs are not entitled to a decree for a consolidated amount against the defendants jointly.
7. No contribution has been claimed in respect of the properties in Kaithaulia, Dayal Garh, Barahra and two annas of Kona on the ground that Sarjoo Prasad had mortgaged these properties to one Raghunath Prasad by two instruments dated 7th February 1890 and 12th January 1891, that Raghunath Prasad in execution of his decree on foot of these mortgages had these properties sold and that the value of these properties had been completely absorbed in satisfaction of these debts.
8. The owners of the several items of property included in the mortgage dated 18th April 1895 were duly represented in the action. There were altogether 21 defendants out of whom defendants 1 to 6 and defendants 9 and 10 contested the suit. Barring defendant 9, the other contesting defendants traversed the allegations contained in paras. 2 and 8 of the plaint in which it had been stated that four of the properties had been absorbed in discharging the decree of Raghunath Prasad on foot of the two earlier mortgages of the years 1890 and 1891.
9. The defendants contended that the plaintiffs were not entitled to a joint decree but that the plaintiffs must prove the proportionate liability of the various defendants with a clear specification of the particular property against which the said liability is to be enforced. The majority of the contesting defendants did not admit that the villages Kaithaulia, Dayal Garh, Barahra and a moiety share in Kona were not liable to contribute. They contended that the plaintiffs were not competent to cast the entire burden upon the remaining village. They further contended during the progress of the argument that the plaintiffs had not only failed to establish that four out of the ten properties mortgaged by Sarjoo Prasad had been swallowed up in satisfaction of the earlier mortgages in favour of Raghunath Prasad but that they had not brought the necessary materials on the record to enable the Court to apportion the liability of the various defendants.
10. On 16th January 1926, after argument in the case had been closed, the plaintiffs applied that a fresh issue be framed, viz., whether four out of the ten villages had been entirely absorbed in satisfaction of the decree obtained by Sarjoo Prasad on his earlier mortgages, that the case be adjourned and the plaintiffs be permitted to produce oral and documentary evidence bearing upon this issue.
11. There can be no manner of doubt that the case for the plaintiffs was conducted most negligently and in an unbusiness-like way in the Court of first instance. It is also abundantly clear that the trial Court was very considerate and gave the plaintiffs a larger share of latitude and indulgence than what they were entitled to ask for or expect. We have noticed that the application dated 16th January 1926 was made to the Court at the fag end of the case after the close of the argument. It is difficult to say that there was not some justification for rejecting this application.
12. The trial Court dismissed the suit on the ground that the plaintiffs had failed to properly frame their suit and had produced no evidence as would enable the Court to 'apportion the liability of the amount on each of the villages mortgaged' so that it was not possible to fix the liability of the several defendants.
13. The lower appellate Court has in a clear and concise judgment affirmed the decision of the trial Court. The Courts below have thrown out the claim on a technical ground. We are of opinion that in view of the peculiar features of this case the claim ought not to rest here and ought to be tried on the merits. Exception has been taken to the following statement of law in the judgment of the lower appellate Court.
It is quite obvious that the appellants in this case could not possibly have obtained a decree in their favour without first establishing that a large number of properties which they have exempted were not liable to make any contribution.
14. If this statment stood alone, it might have been open to ciriticizm. But it has been qualified by the following observation:
It is true that on the facts of the case they (the plaintiffs) are entitled to some contribution though their right cannot be enforced for reasons given above.
15. We do not find any irreconcilability in the two statements and we do not think that the learned Judge intended to lay down the broad proposition literally that no right of contribution was available to the plaintiffs from the properties in the possession of the several defendants simply for their failure to make out that the other properties (exempted by them) were not liable to contribution. It is settled law that where the amount due under the prior mortgages exceeds the value of the property comprised therein, the entire burden of the second mortgage falls on the remaining properties in the hands of puisne transferees : Ghulam Hazrat v. Gobardhan Das  33 All. 387.
16. The effect of a sale in execution of a decree in enforcement of a prior mortgage is twofold. It extinguishes the title of the mortgagor and it wipes off all encumbrances over the same property which are subsequent to the prior mortgage. Where portion of the security is not available, the subsequent mortgagee can proceed against the balance of the security. Where any portion of the mortgaged property has not been absorbed to satisfy the prior lien, it is not open to a mortgagee from either caprice, collusion or negligence to release portions of his mortgaged security and to throw the entire burden upon the remaining property. The reason for the rule is obvious:
for the law would not suffer the creditor to select his own victim, and from caprice or favouritism to turn a ' common burden' into ' a gross personal oppression: (Ghosh on Mortgage, Vol. 1, 1911, p. 369).
17. It must be remembered that in such cases, the effect of the release of a portion of the property is to diminish the mortgagee's security to that extent. It would be unjust to allow the mortgagee to cast the entire burden upon the remaining security where it affects the rights of third parties who by transfers from the mortgagor have acquired interest therein : Mir Esaf Ali Haji v. Panchanon Chatterjee  6 I.C. 842.
18. If the plaintiffs succeeded in proving that the mortgagor's interest in Raithaulia, Kona, Dayalgarh and Barahra had been completely absorbed in satisfaction of the prior charges under the mortgages dated 7th February 1890 and 12th January 1891, they were entitled to cast the entire burden upon the remaining properties including those purchased by themselves and Kalapnath Rai, and the remaining properties were liable to contribute according to their respective values at the date of the mortgage. If however the plaintiffs failed to prove that some of the properties had been so absorbed, they would be bound to include each and every item of the property in the hotchpot in order to enable the liability of each of the properties to be determined. If the plaintiffs voluntarily relinquished their claim for contribution from some of the properties, the burden on the other properties could not be allowed to be enhanced. But the plaintiffs' claim for contribution from the other properties cannot be dismissed upon the mere ground that they had improperly released portions of the mortgaged security from their claim. If the materials on the record be sufficient to determine the value of the properties in the possession of the defendants and to (indicate the extent to which they have been relieved from the common burden the obvious duty of the Court is to decree the claim against the defendants for (such amounts as are proved.
19. Unfortunately for the plaintiffs, they have failed to prove that portions of the mortgaged security were not available to them by reason of the execution of the decree obtained by Raghunath Prasad. They also appear to have failed to produce evidence as regards the respective values of the properties excluded from the claim and as regards the value of the properties which are in the possession of the several defendants. In the circumstances it was not possible for the Courts below to decree the claim.
20. It has been strongly urged that the trial of the suit has been vitiated and the plaintiffs misled by material issues not being framed in the case. It has also been contended that the plaintiffs were lulled into a sense of security by the subsequent conduct of some of the contesting defendants which tended to create an impression that they practically admitted that some of the properties had been absorbed in discharge of the prior liens held by Raghunath Prasad.
21. We have already seen that only a few out of the 21 defendants contended the suit. Of these defendant 9, Mithai Dubey did not traverse the statement in para. 2 of the plaint. But even he did not admit that four annas share of Mauza Barahra had been sold up in satisfaction of a prior mortgage. On the question whether some of the properties were not available to the plaintiffs, there was a distinct disagreement between the parties. It cannot of course, be controverted that the onus of proof lay upon the plaintiffs. But it is equally clear that it was the duty of the Court to frame clear and distinct issues on the points of divergence between the parties. Six issues were framed by the Court of which only two need be mentioned:
Issue 2-Are the plaintiffs entitled to contribution?
Issue 6-To what amount are the plaintiffs entitled from individual sets of defendants?
22. The material question in issue between the parties was whether the properties in Mauzas Kaithaulia, Kona, Dayalgarh and Barahra had been absorbed to satisfy the prior encumbrances of Raghunath Prasad. It was the duty of the trial Court to formulate proper and necessary issues relating to the amount of the encumbrances, if any, the value of the properties which were charged with those encumbrances and also the value of the properties outside the mortgages in favour of Raghunath Prasad. The lower appellate Court was of opinion that issue 6 was comprehensive enough to include the points in controversy and observes as follows:
As regards the argument that no definite issue was framed on the point under consideration I think there is absolutely no force in it. Issue 6 framed in the case clearly contemplated that the appellants will have to prove all the necessary facts in order to establish their claim against each one of the defendants.
23. We do not agree with this view. Issue 6 is not a general issue like issue 2. Issue 6 has in view the determination of amounts for which the individual defendants may be liable. The question of amounts is the last step in the process of evidence. The question of amounts does not arise till certain other facts had been ascertained in their natural and logical sequence. The necessary issues which emerge for trial are whether all the ten properties in the mortgage dated 18th April 1895 wore liable to contribute or only some of them? What was the value of each of these properties? Which of these properties, if any was mortgaged to Raghunath Prasad under the instruments dated 7th February 1890 and 12th January 1891? What was the amount of the decree of Raghunath Prasad for which these properties were sold? Those and other issues of an allied character ought to have been framed and decided before issue 6 could be taken up. If issue 6 be taken to be one of a general character, it ought to be remembered that a general issue from its vagueness more often than not serves as a trap for the unwary. A clear cut issue is always a warning to the party on whom the onus lies. We cannot predicate with certainty that the plaintiffs were not misled in this case by reason of the proper issue or issues not being framed by the Court. The contesting defendants do not appear to have pressed for these issues. On the other hand they submitted in Court a statement of accounts (paper No. 78-C) which as the lower appellate Court puts it
was intended only to show the amount which each of the properties in suit was liable to contribute on the assumption that the appellants would succeed in proving the fact that certain other properties which had been exempted were not liable to contribute.
24. We are not quite sure that the lower appellate Court is not making a very large assumption in favour of the respondents. There is nothing in the document itself to suggest that the statement contained therein is of a tentative or conditional character. But even if we allow that assumption to be made was not this document calculated to put the plaintiffs off their guard? They may well have considered that the defendants were not serious in not admitting paras 2 and 8 of the plaint for they had not only not pressed for the necessary issues, but had indeed accepted the position in the statement of account (78-C) that some of the properties as alleged by the plaintiffs were not liable to contribute because they had been sold in satisfaction of the prior liens held by Raghunath Prasad. We apprehend that the trial has been vitiated for want of proper issues and that the plaintiffs may have been misled by the conduct of the defendants. We are therefore of opinion that the case should go back to the trial Court for a fresh trial with proper issues on fuller evidence. We allow this appeal, set aside the decrees of the Courts below and remand the case to the Court of first instance for trial de novo.