1. The sixth defendant is the appellant in this second appeal. The appealraises the question of contribution under Section 82 of the Transfer of Property Act. One Chinna Goundan executed a mortgage for Rs. 9,000 over some immovable properties. He paid a sum of Rs. 4,000 and there was a sum of Rs. 5,000 due. The mortgagee's right was purchased by one Muthuswami Goundan and Muthuswami Goundan filed a suit O.S. No. 205 of 1938 on the file of the Sub-Court at Coimbatore. A mortgage decree was passed. The original mortgagor had been adjudged an insolvent in I.P. No. 180 of 1933, and so the Official Receiver was made a party to Muthuswami's suit O.S. No. 205 of 1938. The plaintiff in the present action had purchased one-fifth share of the original mortgagor Sinna Goundan from the Official Receiver in the year 1935 and was impleaded in that capacity in O.S. No. 205 of 1938. The decree was subsequently scaled down as regards the present plaintiff who was the ninth defendant in that suit. Under that decree as scaled down the ninth defendant therein, the present plaintiff was bound to pay Rs. 5,204-12-0. In E.P. No. 781 of 1941 filed by the decree-holder the plaintiff paid Rs. 5,911-6-0 in full discharge of the amount due from him including costs and interest. The sixth defendant who is the appellant in this Court purchased four-fifth share in the mortgaged properties from the Official Receiver in the year 1942. The plaintiff, first respondent then filed the present suit for contribution under Section 82 of the Transfer of Property Act on the ground that his one-fifth share in the mortgage property was liable to contribute only one-fifth share of the mortgage-debt, that he was obliged to pay more than his one-fifth share and that the property purchased by the sixth defendant, namely, four-fifth share of the property was bound to contribute to the extent of four-fifth of the amount paid by him. The appellant is the only contesting defendant. He raised very many defences the chief of which is that the whole of the decree amount in O.S. No. 205 of 1938 has not been paid up and that therefore the first respondent has no right of contribution. There is no doubt that the decree was for Rs. 6,341-12-0 with costs and interest. As regards the present plaintiff who was the ninth defendant in that suit the amount was scaled down to Rs. 5,204-12-0 but as the other defendants were not agriculturists the decree against them for Rs. 6,341-12-0 was left undisturbed. The appellant, the sixth defendant is the successor in interest of the Official Receiver who was a party in the previous suit.
2. The question for determination is whether under Section 82 of the Transfer of Property Act it is necessary that the owner of one of the mortgaged properties should pay the whole of the common debt before he can claim contribution or whether in cases where he is obliged to pay more than what is payable from out of his property he is entitled to file a suit for excess even though the entire debt is still undischarged. On this point the learned advocates have been able to place only two decisions before me. In Ibn Hasan v. Brijbhukan Saran I.L.R. (1904)All. 407 , there was a difference of opinion. Two learned Judges held that unless the entire common debt was paid no question of contribution would arise whereas Banerji, J., held that in order to claim contribution it is not necessary that the whole of the common debt should be discharged. In Rajah of Vizianagaram by Collector and guardian v. Rajah Setrucherla Somasekhararaz (1900) 13 M.L.J. 83 : I.L.R. 26 Mad.686 there is an observation by Bashyam Aiyangar, J., in the referring judgment that in order to claim contribution it is not necessary that the entire common debt should be discharged. Though there were several other later decisions in which the decision in Ibn Hasan v. Brijbhukan Saran I.L.R. (1904)All. 407 has been referred to, the particular question which has arisen in this case did not arise in any of the later cases and therefore it serves no useful purpose to refer to those decisions.
3. There are certain observations of the learned Chief Justice in the leading judgment in Narayanan Chetti v. Nallamma : AIR1942Mad635 , which are useful. In that case there was a second mortgage of some of the properties covered by the first mortgage and these properties were sold and the first mortgage discharged but there was not enough to pay the second mortgage. A suit for contribution was filed by the second mortgagee against the owner of the other properties not mortgaged to him and not sold in discharge of the prior mortgage. In Sesha Ayyar v. Krishna Ayyangar : (1900)10MLJ383 , it was decided that in such circumstances the plaintiff, second mortgagee was not entitled to contribution and hence the matter was referred tp a Full Bench. The leading judgment was delivered by the learned Chief Justice and the decision in Sesha Ayyar v. Krishna Ayyangar : (1900)10MLJ383 , was overruled. In dealing with this question the learned Chief Justice said:
The governing factor here is what Section 82 of the Transfer of Property Act says, and the learned Judges who decided Sesha Ayyar v. Krishna Ayyangar : (1900)10MLJ383 had not sufficient regard to its wording. That decision, if allowed to stand, would mean that persons in the position of the plaintiffs would lose everything unless they were sufficiently well off to discharge the prior mortgage. It would not only be most unjust, but it would mean inserting into the section a provision which is not there and a provision which runs counter to its tenor.
4. Turning to the Transfer of Property Act, there are two Sections 82 and 92. In providing for the right of subrogation the legislature has in Section 92 taken care to provide that the right of subrogation does not arise unless the mortgage in respect of which the right is claimed has been redeemed in full. It is significant that there is no such provision in Section 82. It is not permissible for us, as the learned Chief Justice pointed out, to read into Section 82 words which are not there. I may also adopt the other reasoning of the learned Chief Justice that if this argument of the appellant is allowed to prevail, persons in the position of the plaintiffs would lose everything unless they were sufficiently well off to discharge the prior mortgage in its entirety. Such a construction is to be avoided if possible and having regard to the difference in language in Sections 82 and 92 it seems to me to be reasonable to hold that it is not necessary that the whole of the common mortgage should be discharged before a claim for contribution can be made by the person who has been obliged to pay more than what he is liable to contribute towards the common mortgage.
5. The case can also be disposed of on another point. So far as the appellant and the first respondent are concerned they can be said to be jointly liable only to the extent of Rs. 5,204-12-0 which was the amount payable, by plaintiff as scaled down. Both the appellant and the first respondent are jointly liable to the extent of Rs. 5,204-12-0 and the appellant is solely liable for the balance of the decree amount in O.S. No. 205 of 1938. So the common liability has been fully discharged. A similar view was taken by Venkataramana Rao, J., in Sreeramulu v. Ramakrishnayya (1935) 70 M.L.J. 532. There in a mortgage suit Lakshmayya and the fourth defendant were made liable to pay Rs. 2,302-1-11 and the balance of Rs. 895-15-7 was made payable by Lakshmayya separately. Rs. 2,302-1-11 was paid by the fourth defendant but the balance was not paid. The question arose whether the fourth defendant had no right to claim contribution for the reason that the entire mortgage debt was not paid. The learned Judge held that there was a common mortgage debt to the extent of Rs. 2,302-1-11 only and that the whole of the common mortgage was paid by the fourth defendant. In this view the learned Judge held that the fourth defendant could exercise his right to contribution. in this view the first respondent can claim contribution.
6. It was then said that the sale by the Official Receiver was free of all encumbrances and that the plaintiff consented to it. Reliance is placed on the fact that the appellant paid as much as Rs. 7,225, for the four-fifth share of the properties. But on a reference to the sale deed executed by the Official Receiver it does not appear that there was any stipulation that the sale was free from prior encumbrances. There is no reliable evidence to show that the Official Receiver actually sold the property free of encumbrances. If that were so it would clearly have been stated so in the document and the plaintiff's attestation would have been secured to bind him.
7. The second appeal fails and is dismissed with costs.
8. Leave to appeal is refused.