1. This is an appeal by the plaintiffs whose suit for contribution against defendants has been allowed by the lower Appellate Court to the extent only of one-ninth instead of one-half claimed by the plaintiffs of the sum of Rs. 7l9-11.0 which the plaintiffs admittetly paid to discharge a joint mortgage decree. The facts are that on 17th'May, 1920, a mortgage-deed was executed by Ram Charan Lal the pre-decessor-in-'interest of the plaintiffs and by his nephew defendant No. 1 Rashik Behari Lal on that mortgage-deed the mortgagee Chotey Lal brought a suit No. 321 of 1926 and obtained a decree on 28th August, 1926, and he put up for sale a house which belonged jointly to the mortgagors and the plaintiffs had to pay Rs. 719 11-0 in order to get the sale Set aside. The plaintiffs have brought this suit for contribution of one-half of that amount and interest against defendant No. 1 and defendant No. 2, who is a transferee of the property from defendant No. 1. The basis of the suit is that in the mortgage-deed the property pledged belonged to Ram Charan Lal to the extent of one-half and to his nephew Rashik Behari Lal to the extent of one-half. Accordingly the claim is that under Section 82 of the Transfer of Property Act the, property pledged by Rashik Behari Lal should contribute to the extent of its rateable value, that is one-half. The Gourt of first instance decreed the suit. The defendant Rashik Behari Lal appealed, and the lower Appellate Court has decreed the suit for only one ninth of the money paid to the decree holder Chotey Lal instead of one-half. The principle which has been adopted by the lower Appellate Court is that the joint mortgagors should only contribute in proportion to the amount of benefit which they received from the mortgage money. The lower Appellate Court held that out of the mortgage money the major portion was taken for the marriage of a son of Ram Charan Lal and that Rashik Behari Lal only benefited to the extent of his interest in the payment of revenue which was Rs. 42 for a payment required in May, 1920. It was not found by the lower Appellate Court that there was any contract contrary to the principle of contribution laid down in Section 82 of the Transfer of Property Act, nor was there any definite pleading in the written statement to that effect. What the written statement did say was that the mortgage money had been borrowed for the marriage of the son of Ram Charan Lal and that the defendant No 1 merely signed the mortgage-deed for the satisfaction of the mortgagee and at the instance of Ram Charan Lal. Now it would have been necessary for a clear pleading to nave been put forward that there was a contract between the parties to the effect that Ram Charan Lal was solely responsible for the payment of the mortgage money in whole or in part as between the mortgagors, and that Rashik Behari Lal was not liable for any part or only for a small part. No such contract was alleged. Secondly, any such contract would have had to be a contract to which the mortgagee would have assented. This principle has been laid down in Rama Bhadrachar v. Sriniwas Ayyangar 24 M. 85 and has been followed by two rulings of this Court in Charan Singh v. Ganeshi Lall 94 Ind. Cas. 1048 : 24 A.L.J. 401 : A.I.R. 1926 All. 352 and Muhammad Inamullah Khan v. Aisha Bibi 96 Ind. Cas. 785 : 24 A.L.J. 714.
2. The learned Counsel for the respondents was not able to produce any authority for the proposition of law which has been adopted by the lower Appellate Court, that is, that mortgagors are only liable inter se to the extent of the benefit they have received from the mortgage money. Such a principle might, no doubt, have been adopted by the Legislature but in point of fact the Legislature has adopted a contrary principle in Section 82 of the Transfer of Property Act. That section lays down that inter se mortgagors are liable for contribution in proportion to the value of their property which has been included in the joint mortgage. In the present case the property included in the joint mortgage was owned half by Ram Charan Lal and half by Rashik Behari Lal and, therefore, they are liable half and half. As regards the question of jointness or separation this did not form an issue before the lower Courts. Rashik Behari in giving evidence stated that he was separate. An application to contest this was made by the plaintiff who produced a number of documents to show that the marriage expenses of Rashik Behari Lal had been paid for from the joint family, as the family was joint at the time of this marriage, and on this application the Counsel for the defence made a written statement to the effect that the question of jointness or separation was irrelevant for the present case, That being so the question cannot now be agitated in second appeal.
3. There were other grounds of second appeal, but I have not considered it necessary to go into those grounds. But the learned Counsel for the appellant desires this note to be made in order that it may not be said that he had abandoned those grounds.
4. I consider that the principle of law on which the lower Appellate Court proceeded was an incorrect principle, and accordingly I allow this appeal and I restore the judgment of the Court of first instance and direct that the plaintiffs shall obtain their costs in this Court and in the lower Appellate Court. The period of six months granted under Order XXXIV, Rule 4, for the defendants will run from the date of this order in second appeal.
5. Permission to file a Letters Patent appeal is granted.