1. This appeal has arisen out of a suit for contribution, which has been dismissed by the lower Court. The plaintiff has appealed.
2. The facts, which are no longer in dispute, are as follows. One Ali Ahsan owned villages Lalpur and Kuramai. He executed a number of deeds in respect of one or the other, or both, of those villages. We mention only such of them as are material for the purposes of this appeal. On the 18th November 1910, he executed a deed of mortgage in favour of Mauji Ram and Sita Ram to secure the payment of Rs. 3,500 with interest at 9% per annum compoundable every half year. Both the villages Lalpur and Kuramai were hypothecated. On the 17th March 1911, he executed an agreement to execute a zarepeshgi lease in favour of Mt. Aziz Fatima in respect of village Kuramai. A suit for specific performance was brought by Aziz Fatima and was decreed on the 25th January 1912. It was declared that the zarepeshgi lease to be executed in execution of the Court's decree should take effect from 17th March 1911. Zarepeshgi leases have been held to be usufructuary mortgages in ordinary circumstances and that zarepeshgi lease may be treated as such.
3. On the 22nd March 1911, he executed two deeds of simple mortgage, both in favour of Gulzari Lal, the appellant before us, for Rs. 6,000 and Rs. 2,000 respectively. The village Kuramai and a house were hypothecated to secure the advances to which the deeds related. On the 19th August 1919, he executed a deed of usufructuary mortgage in favour of Ahmad Hasan Khan and Muhammad Khalil, defendants 2 and 3, the respondents before us, in respect of village Lalpur.
4. Gulzari Lal instituted a suit for enforcement of his mortgages, dated the 22nd March 1911, impleading the original mortgagor, the prior and subsequent mortgagees and obtained a decree for sale of Kuramai and the house mortgaged to him. It does not appear whether the preliminary decree passed in his favour laid down any special conditions in respect of the sale of the mortgaged property. We assume that it was an ordinary preliminary decree as contemplated by Order 34, Rule 4, Civil P.C.A final decree followed in due course, in execution of which Kuramai was sold and purchased by Gulzari Lal himself for Rs. 5,000. He paid off the sum due to Mt. Aziz Fatima under the zarepeshgi lease, which created a charge on Kuramai alone. He also paid off Mauji Ram and Sita Ram who were prior mortgagees in respect of both villages. The present suit was brought by Gulzari Lal on 10th September 1928, for contribution against Ahmad Hasan Khan and Muhammad Khalil, the usufructuary mortgagees of Lalpur under a subsequent deed. They contested the plaintiff's suit mainly on the ground that the plain-tiff Gulzari Lal had purchased Kuramai subject to the entire incumbrance under the mortgage deed of 18th November 1910, in favour of Mauji Ram and Sita Ram. It should be noticed that, according to the defence, the entire charge created by that mortgage was laid on Kuramai when it was sold to-the plaintiff, with the result that Lalpur was freed from incumbrance altogether. Some other questions were raised in defence, but it is not necessary to mention them for purposes of this appeal.
5. The learned Subordinate Judge dismissed the suit holding that the value of village Kuramai was over Rs. 17,000 and the plaintiff appellant having purchased it for nearly Rs. 5,000 is not entitled to contribution. We may say-at once that this view is entirely erroneous. If the plaintiff appellant is otherwise entitled to contribution the mere fact that he purchased property of the value of Rs. 17,000 for Rupees, 5,000 only cannot deprive him of his, right to insist on rateable contribution by the owner of the property which was subject to a common charge. The learned Counsel for the respondents has not made any attempt to support the decree of the lower Court on that ground. He argued the case on the ground taken in the written statement, namely, that the village Kuramai was purchased by the plaintiff appellant subject to the entire incumbrance under the mortgage deed of the 18th November 1910, and not subject merely to a proportionate charge.
6. Two questions emerge from the facts and pleadings narrated above. The first is whether the plaintiff's purchase of. village Kuramai was subject to the entire charge created by the deed dated the 18th November 1910 in favour of Mauji Ram and Sita Ram subsequently paid off by him. This is a question of fact, and if it is answered in the negative, there can be no doubt that the plaintiff appellant is entitled to contribution as claimed by him. If the first question is, however, answered in the affirmative, a second and further question arises, and it is one of law. That question is: Whether, assuming the plaintiff purchased Kuramai subject to the entire charge created by the deed of 18th November 1910, he is nevertheless, entitled to contribution from those interested in village Lalpur. The evidence bearing on the first question which, as already stated, is one of fact, is documentary. The sale proclamation has not been produced in the case, nor have we had the advantage of acquainting ourselves with the contents of the sale statement which must have been prepared and submitted to the Government for sanction. The village Kuramai was the ancestral property of Ali Ahsan and therefore the decree was transferred to the Collector for execution. One Izad Baksh, the mukhtaram of the plaintiff appellant, was examined before the sale officer. He made the following statement:
I am the general attorney of B. Gulzari Lal, decree-holder, milk mauza Kuramai, situate in mohals Surkh and Sufed, belonging to Saiyed Ali Ahsan has been advertised for sale in execution of a civil Court decree held by B. Gulzari Lal. Therefore the property may be sold by auction. The amount cannot be recovered without the sale of the property. This property may be sold subject to the debts due to Aziz Fatima, Sita Ram and others, which have been declared to be prior by the civil Court.
7. If this statement has stood alone it might not have afforded sufficient evidence to establish that the entire charge created by the mortgage deed in favour of Mauji Ram and Sita Ram was thrown on Kuramai. It is however, not without significance that the sale officer considered it necessary to record the consent of the decree holder's general agent to the effect that the property may be sold subject to debts due to Mt. Aziz Fatima and Sita Ram, who had prior incumbrances, which would subsist by operation of law and the statement of the decree holder's mukhtar am would in ordinary circumstances be unnecessary. The next document relied on by the respondents is the proceedings of sale itself. Bids were invited in the following terms:
The property is being sold subject to the entire incumbrance'. Against this is noted the entire principal amount of Rs. 3,500 due under the deed in favour of Mauji Ram and Sita Ram. It is clear that the sale officer gave the intending bidders to understand that village Kuramai was offered for sale subject to the entire mortgage money due to Mauji Ram and Sita Ram and any one who purchased the same will have to pay the whole and not merely a proportionate amount, as would in normal circumstances have been the case. The, sale was knocked down to Ezad Bakhsh acting as the mukhtaram of the plaintiff appellant. The sale certificate which followed gives the following description of the property sold thereunder.
Village Kuramai Mahal Surkh...and village Kuramai Mahal Sufed, subject to the entire prior incumbrance.
8. The value of village Kuramai according to the plaintiff appellant himself was Rs. 19,000 and accoding to the lower Court Rs. 17,000. The proportionate charge claimed by the plaintiff by way of contribution is Rs. 6,059. There can be no doubt that the appellant purchased it for much below its market value. This circumstance by itself may have no effect on the right of the plaintiff to obtain contribution, but it has evidential value in considering the question whether he purchased the village subject to the entire incumbrance or only to a proportionate charge. In the case of Pettachi Chettiar v. Sangili Veera Pandia Chinnathambiar (1887) 10 Mad 241, in which their Lordships of the Privy Council had to consider the question whether the larger or smaller interest in the property auctioned should be deemed to have been conveyed, importance was attached to the circumstance that property of a much larger value was sold for a comparatively small amount. In all questions in which the Court has to decide to what was sold, it has to consider not
What the Courts would have done, or what they ought to have done, but what they did, what was put up for sale, and what was purchased (ibid).
9. If the sale officer decided to sell Kuramai saddled with the entire incumbrance created by the mortgage deed in favour of Mauji Ram and Sita Ram and the plaintiff purchased it on that understanding, there can be no doubt that he agreed to pay a price which included his bid and also the entire mortgage money due to Mauji Ram and Sita Ram. If the sale had been made in circumstances implying that it was subject to the incumbrance with ordinary legal incidents, it might have carried with it the right to demand contribution by the judgment debtor who owned another property subject to the same incumbrance. But we think the circumstances of this case indicate that the arrangement contemplated was that the entire charge be laid on this village which was of much greater value than the decretal amount for which it was to be sold. It is easily conceivable that the Collector or the sale officer considered it more to the interest of the parties that instead of parts only of village Kuramai being sold to satisfy the decree in favour of the plaintiff appellant with only proportionate liability as between the purchaser and the judgment debtor resting on that part, the entire village Kuramai be sold subject to the entire charge resting on it and village Lalpur. It was of advantage to the mortgagor in so far that one of his properties was freed from incumbrance ; it was of advantage to the auction purchaser in so far that he acquired the entire village for Rs. 5,000 and the entire incumbrance, instead of part only of the village, for part of the aggregate of those sums. It should be conceded that there is no evidence-as to what led the Collector and the sale officer to adopt that course. The fact however, remains, as appears from the documents to which reference has been made, that the village Kuramai was sold to the plaintiff appellant on the distinct understanding that the whole of the mortgage money payable under the deed of 18th November 1910 would be paid by him.
10. In arriving at this finding we have been greatly influenced by the proceeding recorded on the date of sale and the terms in which the auctioned property is described in the sale certificate. In Ramabhadra v. Kadiriyasami Naichen AIR 1922 PC 252, their Lordships observed that
Certificates of sales are documents of title which ought not to be lightly regarded or loosely construed.
11. There can be no doubt that, if a sale deed executed by Ali Ahsan couched in the terms employed in drawing up the sale certificate had been executed, the plaintiff appellant could not have successfully contended that be did not assume the liability to pay the entire incumbrance created by the mortgage of 18th November 1910. The position cannot be materially different where the sale certificate contains the same terms and where it is clear that bids had been invited on those terms. For all these reasons we hold, on the first question, that the plaintiff appellant purchased the village Kuramai subject to the entire incumbrance in favour of the prior mortgagees Mauji Ram and Sita Ram with the result that village Lalpur became free from incumbrance as between the auction purchaser and the judgment debtor. The next question is whether the plaintiff appellant is entitled to contribution in spite of his purchase on the condition to which reference has been made above. The learned Advocate for the plaintiff appellant has strongly relied upon Section 82 of the Transfer of Property Act, which provides that:
Where several properties, whether of one or of several owners, are mortgaged to secure one debt, such properties are, in the absence o a contract to the contrary, liable to contribute rateably to the debt secured by the mortgage, after deducting from the value of each property the amount of any other incumbrance to which it is subject at the date of the mortgage.
12. The obvious reply to the contention based on Section 82 is that there was a contract to the contrary in the case before us. The learned Advocate controverted this position and advanced the argument that there is no contract where a sale took place in execution of a decree. We are unable to accept this view. All the elements of contract are as much present when a sale takes place in execution of a decree as in an ordinary sale by two contracting parties. This is the nature of an auction sale as described by Batty, J., in the case of Balavant Babaji v. Himchand Gulab Chand (1903) 27 Bom 334. In compulsory sales the Court does what the judgment debtor himself might have done. It invites bids for sale of a certain property. Bids are offers by intending purchasers and the last bid and its acceptance by the Court forms a contract which eventually becomes a sale on confirmation by the Court. Applying these tests we are of opinion that the purchase by the plaintiff appellant of village Kuramai, subject to the entire incumbrance, in favour of Mauji Ram and Sita Ram implied an agreement by the plaintiff appellant that the latter would pay all that was due to Mauji Ram and Sita Ram under their mortgage of 18th November 1910. This being so, there was a contract to the contrary as contemplated by Section 82 of the Transfer of Property Act, which has therefore no application.
13. A part from this consideration, it is clear from the language of Section 82 of the Transfer of Property Act that unless two or more properties are subject to a common charge there can be no contribution. If the plaintiff appellant accepted by his purchase the liability to pay the entire incumbrance in favour of the prior mortgagees, he cannot call upon any one to contribute towards that liability which ex hypothesi is his own and nobody else's. The right to obtain contribution presupposes the existence of a joint liability. Where the liability rests on one person only contribution is wholly out of question. For the reasons mentioned above we uphold the decree appealed from, though on grounds different from those on which the judgment of the lower Court proceeds. Accordingly we dismiss this appeal with costs.