1. The question in this second appeal is whether a co-sharer who to prevent arrest for a decree against himself and another co-sharer for arrears of rent due by both under the Estates Land Act pays the whole rent and brings a suit for contribution is entitled to a first charge on the other co-sharer's portion of the holding.
2. The plaintiff and his cousin, 1st defendant's late husband, were jointly holders of ryoti land in the Ayakudi Zamin. They divided the holding among themselves in 1906 but as the patta remained joint in the Zamin accounts they were jointly sued for rent for faslis 1323, 1324 and 1325 (1914 to 1916) and a personal decree was obtained against them in the Revenue Court by the Zamindar. The plaintiff's cousin not having paid his share of the decree debt the plaintiff was on threat of arrest compelled to pay, in addition to his own share, the share of his cousin also on 2nd July, 1926. This suit was brought on 11th August, 1926, to enforce the plaintiff's right of contribution impleading the 1st defendant, the widow of the cousin, who had died and defendants 2 to 4 who are mortgagees of the cousin's share of the holding and defendants 5, 6 and 7, purchasers of portions of that share. The plaintiff claimed in addition to a decree against the widow (1st defendant) a charge against the property in priority to the interests of defendants 2 to 7. The Munsif granted a decree against the widow and also made the decree amount a charge on the property subject to the rights of the contesting defendants 2, 5 and 7. The defendants did not appeal. But the plaintiff appealed to the learned Subordinate Judge who declared that the plaintiff was entitled to a charge for his decree amount in preference to the defendant's interest, i.e., a first charge on the land.
3. The 2nd defendant a mortgagee appeals to this Court and the only point argued in the appeal is that though the plaintiff may be entitled to a charge, he is not entitled to a first charge, i.e., to priority over encumbrances existing on the property on the date of the payment by reason of which the plaintiff claims contribution.
4. The learned Subordinate Judge's opinion is that plaintiff is entitled to a charge and a first charge by virtue of sections 5 and 128 of the Estates Land Act and he also relies on Kotayya v. Kotappa : AIR1926Mad141 which he says is a direct authority on the point. The learned Advocate for the respondent-plaintiff does not support the Judge's opinion on these grounds but he argues that the plaintiff is entitled to a charge and first charge on grounds outside the Estates Land Act, i.e., on general principles and on sections 82 and 100 of the Transfer of Property Act.
5. The learned Judge's grounds are clearly incorrect. What Section 5 declares in effect is that, subject to any right of Government, the rent of ryoti land shall be a first charge on the holding and on the produce of the holding or any part thereof. That is a charge created for the benefit of the landholder and applies to rent only so long as it is due to him in that character. Forbes v. Maharaj Bahadur Singh . The present claim is not for rent but for contribution by a ryot against his co-sharer--though the claim arises from the former's payment of rent which the latter was bound to pay--which is a different thing Section 128 is still less applicable though the Judge says erroneously that it only reiterates the right which the parties are entitled to under Section 5. Section 128 has nothing to do with Section 5. It creates an entirely new right in favour of different persons, i.e., those who like mortgagees and other owners of subordinate interests in the holding which would be adversely affected by the sale by a Revenue Court of the holding for rent, i.e., those against whom the purchasers' right would prevail by Section 125. Such persons are given the right when a proclamation for sale is made to pay to the Collector or selling officer the amount requisite to prevent the sale and in case they do so they are entitled in respect of the sum paid and interest thereon at 6 per cent, to a charge in priority to every other charge except the landlord's charge for arrears of rent and any prior charge in respect of previous payments under the same section. It is clear that this is a charge given to other persons than the, landlord, for a sum different from the rent and given only in the particular circumstance mentioned, i.e., that a sale by the Revenue Court has been averted after proclamation for sale by that Court. Subburayudu v. Venbaitaratnam I.L.R. (1927) M. 632 : 55 M.L.J. 314, Venkata Lakshmamma v. Seetayya I.L.R. (1920) M. 786 : 39 M.L.J. 30, Sital v. Parbati (1921) 35 C.LJ. 1. As there was no proclamation of sale in this case but only a threatened arrest of the plaintiff Section 128 would be of no use to the plaintiff even if a co-sharer were to be held as included in the class of persons on whom a charge is conferred by that section We may however say, though it is not necessary to decide it, that in our opinion co-sharers, like joint pattadars are not within the intent of that section which seems to have been intended to benefit not the pattadar or his joint pattadar who are the persons liable to pay the rent and on whose default their holding is under sale but others who though not liable to pay the rent have subordinate interests in the holding which are liable to be destroyed by the sale. As in this section, the persons mentioned in Section 35 of the Madras Revenue Recovery Act, Section 9 of the Bengal Acts, I of 1845 and XI of 1859 as paying or depositing money to save the estate are persons, other than the proprietor of the estate in arrear. The decision in Kotayya v. Kotappa : AIR1926Mad141 has also no application to the case so far as the question of first charge is concerned. All that it decided was that a person like the plaintiff who pays off the share of rent due by his co-sharers is entitled according to the Full Bench decision in Rajah of Vizianagram v. Rajah Setrucherla Somasekhararaz I.L.R. (1903) M. 686 : 13 M.L.J. 83 (F.B.) to a charge by operation of law in the co-sharer's share of the holding and that there is nothing in Section 132 of the Estates Land Act which prevents the Civil Court from enforcing that charge in a, suit in a Civil Court.
6. The grounds stated by the learned Judge being thus unavailing to support his, opinion as to a first charge, the learned Advocate for the respondent has sought to support it by appealing to the general law on grounds of justice, equity and good conscience and he has also invoked by way of analogy the law of mortgages as stated in sections 82 and 100 of the Transfer of Property Act as now amended. As to the general law no authority is forthcoming to support the contention and we are not aware of any. The decision in Rajah of Vizianagram v. Rajah Setrucherla Somasekhararaz I.L.R. (1903) M. 686 : 13 M.L.J. 83 (F.B.) was referred to. But all that it decided was that where a co-sharer in an estate subject to payment of Government revenue pays the whole revenue to save and does save the estate from liability to sale by Government he is by operation of law entitled to a charge upon the share of his other co-sharers for the lat-ter's share of the revenue. There was no question in that case of priority between such charge and a mortgage by any of the defaulting co-sharers of his share. Certain observations at p. 703 were referred to as tending to show that in the opinion of Bhashyam Aiyangar, J., a part owner paying the revenue will acquire a priority of charge over mortgagees. But the learned Judge himself says that he was not expressing any decided opinion as no question of priority arose in the case. It is also to be noted that the observations were made with reference to Section 35 of the Revenue Recovery Act which does not mention co-owners but only lessees and mortgagees and persons out of possession claiming adversely to the defaulter and in their case confers on payments to prevent a Revenue sale only a priority of charge according to date of payment. We are bound by this decision, but we find in it and in Alayakammal v. Subbasraya Goundarn I.L.R. (1905) M. 493 : 15 M.L.J. 219 which followed it nothing to support the respondent's contention as to priority. Such indications as there are in decisions arising from the Revenue and Rent Laws to which we have been referred lend no support to the argument. In Nugenderchunder Ghose v. Sreemutty Kaminee Dossee (1867) 11.M.I.A. 241 the widow of the mortgagor of a Taluq which was liable to pay Government revenue having failed to pay it the mortgagee had to pay it to preserve her security. The mortgagee having obtained a decree against the widow under Section 9 of Act I of 1845 the question was whether, it could be executed against the whole estate including the reversionary interest or whether it was a personal decree executable only against the widow's estate. The payment was made under Section 9 of Act I of 1845 by which a person interested in saving the estate from a revenue sale was authorised to deposit the revenue with the Collector to the credit of the estate and if he established before a Civil Court that he had an interest which would suffer by the sale he was entitled to recover the amount deposited with interest from the proprietor of the said estate. The decree obtained was in pursuance of this provision. The Zilla Judge allowed the claim of the mortgagee decree-holder to execute the decree against the estate. The High Court reversed this, holding that the decree obtained under Section 9 of Act I of 1845 was a personal one. In the Privy Council their Lordships upheld this view, at the same time intimating that the mortgagee could by adopting the proper form of suit have proceeded against the estate. They say:
Considering that the payment of the revenue by the mortgagee will prevent the Talook from being sold, their Lordships would, if that were the sole question for their consideration, find it difficult to come to any other conclusion than that the person who had such an interest in the Talook as entitled him to pay the revenue clue to the Government, and did actually pay it, was thereby entitled to a charge on the Talook as against all persons interested therein for the amount of the money so paid.
7. After stating that the question did not come before them in that form but whether the charge could be enforced in the suit as actually brought, they proceed:
There were two courses open to her (mortgagee) : she might have instituted a suit to enforce the mortgage and to tack to the mortgage the amount of the revenue paid by her to save the estate, and to have the estate sold to pay that amount; or she might proceed under the ninth section of Act, No. I of 1845.
8. The question of priority was not before the Privy Council but if we may derive guidance from this passage the method of enforcing the charge above laid down by tacking' it on to the mortgage would seem to imply that an earlier mortgage would not be affected. The decision of the same tribunal in Monohar Das Mohunta Moharaj v. Hazarimull Babu turned on the corresponding Section 9 of Act XI of 1859 which replaced Act I of 1845. The point decided has no bearing on the point before us. It was that a mortgagee who has obtained a decree for sale may maintain a separate suit for having the amount of revenue subsequently paid by him to save the property added to the decree amount. The point of present interest is that the absence of any charge in favour of a person paying revenue under the earlier Act was supplied by the addition of a sentence in Section 9 of the new Act to the effect that the amount deposited shall be added to the amount of the original lien of the person so depositing. There was in addition a covenant in the mortgage sued on that amounts paid by the mortgagee for revenue defaulted by the mortgagor were to be added to the mortgage amount. Thus both by statute and by contract the payments made by the mortgagee in the case could only rank with the mortgage money. This is all that was decided though the expression 'first charge in the sale proceeds' is used in the decretal portion of the judgment and the words 'first charge' occur in an earlier passage. We do not read the decision as holding that the plaintiff was granted a charge in priority to the first mortgage which was usufructuary and which therefore does not appear to have been intended to be paid off out of the sale proceeds.
9. There being nothing in the Estates Land Act to support the plaintiff's claim to a first charge in the circumstances of this case, the question is whether sections 82 and 100 of the Transfer of Property Act support it. The argument was put in this form. The charge for rent is a charge created by operation of law within the meaning of Section 100, Transfer of Property Act and subject to all the incidents of a simple mortgage. The pattadars are in the position of co-mortgagors. Therefore one of them paying off the charge is entitled as against the other to contribution under Section 82 for his excess payment and by virtue of Section 92 is entitled to stand in respect of priority in the same position as the charge paid off, i.e., before all the mortgages created by the defaulter. There is more than one answer which is fatal to this reasoning. That the charge for rent created by the Estates Land Act is not a charge within the meaning of Section 100 of the Transfer of Property Act, was decided in Suramma v. Suriyanarayana Jagapathi Razu I.L.R. (1918) M. 114 : 35 M.L.J. 443, though Sadasiva Aiyar, J., doubted this in Venkata Lakshmamma. v. Seetayya I.L.R. (1920) M. 786 : 39 M.L.J. 30. However that may be, and assuming that it is a charge within Section 100 of the Transfer of Property Act, it is clear that it is not the landlord's charge for rent which plaintiff claims but something different though having its roots there. The decision of the Privy Council in Forbes v. Maharaj Bahadur Singh already referred to has been understood in this Court in Venkata Lakshmamma v. Seetayya I.L.R. (1920) M. 786 : 39 M.L.J. 30 as applicable to cases under the Estates Land Act and as meaning that the claim of first charge is available only to a landlord and while the relationship of landlord and tenant subsists. The plaintiff's charge for the first time came into existence on his payment of his co-sharer's share of the rent and both its character and extent are determined by the equitable doctrine that common burdens should be equally borne and 'once the right of contribution is established it is not an inequitable or violent stretch of such right to make it a charge against the co-owner's share at any rate in certain classes of cases and as against him.' Rajah of Vizianagram v. Rajah Setrucherla Somasekhararaz I.L.R. (1903) M. 686 : 13 M.L.J. 83 (F.B.). The claim being thus against the co-owner and the charge which springs into existence on the date of payment being against his property it follows that it can only avail against that property as it stood on the date of payment and cannot avail retrospectively against prior mortgagees and others who have in good faith and without any suspicion that such a charge may come into future existence advanced money on the property. The same result is arrived at by the rule now expressly stated in Section 100 that save as expressly provided by any law for the time being in force no charge shall be enforced against any property in the hands of a person to whom such property has been transferred for consideration and without notice of the charge. When the real nature of the landlord's charge and of the plaintiff's charge is understood, there is no basis for the application of sections 82 and 92 of the Transfer of Property Act (old sections 82 and 101) by treating the plaintiff as a co-mortgagor who has redeemed a previously existing mortgage or charge.
10. But it is contended that all the interests in the property which have benefited by the rent sale being averted by the plaintiff's payment including the mortgages existing in the property must be subjected to the charge. For this the expression in the Privy Council decision in Nugenderchunder Ghose v. Sreemutty Kaminee Dossee (1867) 11 M.I.A. 241 already referred to that the charge is against all persons interested therein which is extracted in the later Privy Council decision is relied on. The question of priority not being before their Lordships in either case it is not permissible to give a meaning to their words which have no bearing to the facts before them. On the contrary there is the authority of the House of Lords in Ruabon Steamship Co. v. London Assurance (1900) A.C. 6 which is referred to by Bhashyam Aiyangar, J., in Rajah of Vizianagram v. Rajah Setrucherla Soma-sekharanaz I.L.R. (1903) M. 686 : 13 M.L.J. 83 (F.B.) for the view that there is no general principle of law that where one person gets some advantage from the act of another a right of contribution towards the expenses for that act arises on behalf of the person who has done it. In the Allahabad case Seth Chitor Mal v. Shib Lal I.L.R. (1892) A. 273 (F.B.) the contention was as in this case that the charge should prevail over a prior mortgage. The decision denied not only the priority but the charge. Though on this last point Rajah of Vizianagram v. Rajah Setrucherla Somasekhasraraz I.L.R. (1903) M. 686 : 13 M.L.J. 83 (F.B.) came, to the opposite conclusion and is the binding authority in this Court, the discussion shows that it does not follow that because the plaintiff may be entitled to a charge, he is also entitled to priority over encumbrances existing on the date of payment.
11. In our opinion the plaintiff (respondent) has not established any right to a prior charge in preference to the contesting defendants 2, 5 and 7. The decree of the Lower Appellate Court is reversed and that of the District Munsif restored. The appellant will have his costs here and in the Court below from 1st respondent.