1. This appeal arises out of a suit for contribution brought by the plaintiff-respondents, who are the heirs of one Sheikh Inayat. The latter executed a deed of usufructuary mortgage in favour of Mahabir Husain on 25th November 1893 in consideration of a sum of Rs. 12,000. Three villages, namely, Rethali which is now in question, Imadulmulk and Habibpur were mortgaged with possession, the usufruct to be appropriated by the mortgagee in lieu of interest. On the same date the mortgagee granted a lease of the mortgaged villages to the mortgagor at an annual rent of Rs. 1080. Rent fell in arrears, which were assigned by the mortgagee to one Nasair Husain, who obtained a decree in respect thereof on 1st March 1899 for recovery of Rs. 497-10-4. In execution of that decree village Rethali was attached and sold on 20th April 1901. One Sabir Ali was declared to be the purchaser. He sold his rights to Sabir Husain, defendant 1, appellant, son of the mortgagee, on 6th October 1903.
2. The original mortgagor having died, his heirs brought the suit No. 117 of 1912 for redemption of villages Habibpur and Imadulmulk on the allegation that the third village Rethali had been acquired by the mortgagee himself in the name of his son who was only a benamidar and that the integrity of the mortgage having been broken, the redemption of part was permissible. Sabir Husain was impleaded as a defendant in that case with his father, the original mortgagee. It was held that Sabir Husain was the real purchaser, and that redemption piecemeal was not permissible. Accordingly the Court passed a decree directing the plaintiffs of that suit to pay Rs. 12,000 (principal secured by the mortgage of 1893) declaring that on payment of that amount plaintiffs of that suit would be entitled to recover possession of two villages, namely Imadulmulk and Habibpur. It should be observed that on payment of the entire mortgage money then due all the three mortgaged villages would be freed from encumbrance. The Court, however, passed a decree in the following terms:
The defendants shall deposit the sum of Rs. 12,000 in Court for payment to defendant 1 in the month of Jeth next and on such payment being made within the specified period the plaintiffs shall recover the possession of mauzas Imadulmulk and Habibpur. If such deposit is not made, those properties shall be sold and the proceeds applied in satisfaction of the mortgage debt, and in that case the defendants shall recover their costs.
3. On 19th June 1915 the heirs of the original mortgagor sold village Habibpur to one Muhammad Ismail and village Imadulmulk to one Sufi Ahmad Husain, leaving the entire consideration with the vendees for the satisfaction of the redemption decree already referred to. On 19th June 1915 the vendees deposited the required amount in satisfaction of that decree. We should mention that the two vendees were joined as co-plaintiffs in the redemption suit subsequent to sales in their favour by the heirs of the original mortgagor. A final decree followed on 19th June 1915, directing delivery of possession and retransfer of the two villages to the vendees who subsequently obtained possession. The present suit was brought by the plaintiffs, seven in number, who are the heirs of Inayat, the original mortgagor, for contribution and interest at the rate of 12 per cent per annum. They claim Rs. 17,932-10-8 of which Rs. 7,988-2-8 represents proportionate amount of the principal of the mortgage of 1893 and the rest is interest. Defendants 1 to 9 are the heirs of the original mortgagee Zakir Husain. Defendant 1 Sabir Husain, is the owner of village Rethali, as has been already mentioned. Defendants 10 and 11 are Ismail Khan and Sufi Ahmad Husain, the present owners of villages Habibpur and Imadulmulk. They are pro forma defendants and are not interested in the result of the suit. The only interest of defendants 2 to 9 in the suit is that they are eight out of nine heirs of the original mortgagee. Zakir Husain. Defendant 1 fills the dual capacity of an heir of Zakir Husain and the owner of village Rethali.
4. The suit was contested by defendants 1 to 9. The defence, so far as it is necessary to mention for the purpose of this appeal, is (1) that the present suit is barred by res judicata and by Order 2, Rule 2, Civil P.C., (2) that the plaintiffs are not entitled to any contribution, at any rate, as against the representatives of the mortgagee and (3) that the plaintiffs are not entitled to the interest claimed by them. The learned Additional District Judge, who heard the suit in the first instance, has decreed the plaintiffs' claim for Rs. 7,064-6-4 principal and interest at 1 per cent per mensem from 19th June 1915 to the date of suit. The present appeal has been filed by defendant 1 only. Defendants 2 to 9 have been impleaded as respondents. The learned advocate, who appeared in support of the appeal, has argued that the plaintiffs' claim is barred by the rule of res judicata and by the provisions of Order 2, Rule 2, Civil P.C. It is contended that the plaintiff-respondents not having obtained possession of village Rethali in the redemption suit, it is not open to them to claim the relief of contribution We have no hesitation in rejecting this contention. The questions now arising between the parties did not and could not arise in the suit for redemption. The claim to contribution can be made only after the entire mortgage money has been paid off. When the suit for redemption was instituted, the plaintiff-respondents had no cause of action for claiming a proportionate amount from these who represented the equity of redemption in the part of the mortgaged property other than that belonging to the plaintiffs of the redemption suit. Their cause of action for contribution arose for the first time when they discharged a liability common to themselves and their co-mortgagor, in this case defendant 1, the appellant. It is obvious that the questions now in controversy were not directly and substantially in issue between the parties to the redemption suit. Nor can it be urged that the plaintiff-respondents might and ought to have claimed in the redemption suit what they are doing now. The plea of res judicata has, therefore, no force.
5. As regards Order 2, Rule 2, Civil P.C., we may at once mention that the causes of action for the redemption suit and for the present one are different, one from the other. Order 2, Rule 2, cannot apply unless the claim in the subsequent suit is based on the cause of action on which the earlier suit was based. The wording of Rule 2 is thus:
Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action.
6. As we have already pointed out, the plaintiffs' cause of action for contribution arose long after the passing of the preliminary decree in the redemption suit. It is, therefore, clear that the plea based on the provisions of Order 2, Rule 2, Civil P.C., has likewise no force and must be overruled.
7. As regards the liability of village Rethali to contribute, the provisions of Section 82, T.P. Act, leave no room for argument. Indeed the learned advocate for the appellant has not denied the liability of the property itself to contribute a proportionate amount of the mortgage-money. His contention is that the mortgagee, if he had been alive, not his representatives-in-interest, defendants 1 to 9, can be called upon to contribute. It is, therefore, urged that the suit as against them should be dismissed. The substance of the plaintiffs' claim is not what is assumed in the argument noted above. The plaintiff-respondents claim a decree for contribution by enforcement of the charge existing on village Rethali, which is now vested in defendant 1. Defendants 2 to 9, who are eight out of the nine heirs of the original mortgagee, have been impleaded, as their names stand recorded in the khewat, and as they presumably claim an interest in the property which the plaintiff-respondents desire to proceed against. No personal decree is claimed against them nor can it be granted. If they claim any interest in the property against which the charge is sought to be enforced, they must establish it, or the property shall be sold free from any interest in their favour, if otherwise, the sale thereof is permissible. As for defendant 1, he is admittedly the owner of the property, and if he cares to prevent the sale of it, he must pay the amount decreed by the Court within the time to be fixed by it. If follows that if the property is subject to a charge in favour of the plaintiff-respondents in respect of contribution, all the defendants have been rightly impleaded in this case, and the only question is whether the property should be sold for satisfaction of the plaintiffs' claim. As to this, Section 82, T.P. Act, as already stated, is clear. We hold, therefore, that the plaintiff-respondents are entitled to claim contribution by sale of village Rethali.
8. As regards the amount, it appears that the parties agreed in the Court below that Rs. 7,064-6-4 is the proportionate amount chargeable on village Rethali. The plaintiffs claim interest from 19th June 1915 up to the date of suit at the rate of 12 per cent per annum. The learned Additional District Judge has decreed interest as claimed by the plaintiff-respondents. One of the questions argued before us relates to the liability of the defendants to pay interest. Though the plaintiffs' claim to recover interest was denied in the written statement, no specific plea either as regards the liability or the rate was taken in the written statement. We would not have been disposed to take a strict view of the pleadings if the subsequent conduct of the defendants had been different from what it has been. No question regarding either to the liability or to the rate was argued before the learned Additional Judge. Next day after the arguments were concluded an application was made for an issue being struck on the defendants' plea regarding interest. The learned Additional Judge very rightly rejected this application. In the grounds of appeal to this Court the only question as to interest that has been raised is embodied in ground 5, and that relates to the rate of interest only. No question regarding the liability to pay interest has been raised. In other words, the judgment of the lower Court as regards the right of the plaintiff to recover interest has been acquiesced in.
9. We refuse to allow the appellant to argue any questions not raised in the memorandum of appeal, and would consider only the question as to whether the rate of interest, namely 12 per cent per annum is reasonable. It was also argued before us that the period for which interest can be claimed cannot exceed six years. This again is a matter which was not agitated in the Court of first instance, nor has it been taken in the grounds of appeal to this Court. We refuse to entertain it. As regards the rate of interest, we think that 12 per cent per annum is somewhat excessive. The mortgage of 1893 was for Rs. 12,000. The mortgagee granted a lease of the mortgaged property to the mortgagor reserving an annual rent of Rs. 1080. The rate of interest works out at 9 per cent, per annum. There are no circumstances proved in this case, which could suggest that 12 per cent per annum is reasonable, having regard to local conditions and the circumstances of the parties. For these reasons we are of opinion that the ends of justice will be satisfied if interest at the rate of 9 per cent per annum is allowed. Accordingly we modify the decree appealed from so as to allow interest at the rate of 9 per cent per annum from 19th June 1915 up to the date of suit and thereafter at the rate of 6 per cent per annum. A fresh preliminary decree shall be prepared in terms of our judgment. The appeal has substantially failed. We direct that the appellant shall pay the costs of the respondents here and in the Court below.