1. The material facts and dates are as follows: In 1883 one Srinivasa Ayyangar mortgaged certain lands which belonged to him and his three sons to one Rangayya Goundan for. Rs. 20,000. The mortgaged property may be conveniently described as items Nos. 1-4. Subsequently to the mortgage there was a partition between Srinivasa Ayyangar, and his three song. Under the partition the father and the three sons each took a one-fourth share, and each became liable for one-fourth of the mortgage-debt. On August 9th, 1886, one of the sons, Krishna Ayyangar, Bold the greater portion of his share in the mortgaged property to the plaintiff. The sale-deeds are exhibits A, B and C. These deeds state that the lands are sold free from incumbrances. The total purchase price was Rs. 10,500. Nine days after the sale on August 18th, 1886, Krishna Ayyangar gave an indemnity bond (exhibit I) to the plaintiff, This bond, after reciting the mortgage to Rangayya Goundan and stating that Rs. 5,000 is due in respect of Krishna Ayyangar's share thereof, authorises the plaintiff, in the event of Krishna Ayyangar's failing to discharge the share of the mortgage-debt for which the lands sold to the plaintiff were liable, to recover this Rs. 5,000 from certain other specified lands belonging to Krishna Ayyangar. The amount for which Krishna Ayyangar became liable under this bond was paid to the plaintiff.
2. In 1894, Rangayya Goundan brought a suit on his mortgage against Srinivasa Ayyangar and twenty-five others. Srinivasa Ayyangar and his three sons were defendants Nos. 1-4. The plaintiff in the present suit was the seventh defendant. Rangayya Goundan obtained a decree for Rs. 26,000. In execution of the decree, item No. 1 was sold and realized Rs. 30,000, and the decree was satisfied.
3. In January 1897 the plaintiff brought the present suit under Section 82 of the Transfer of Property Act claiming rateable contribution from the other properties mortgaged to secure the debt. The District Judge held that the suit must fail on the ground that, the plaintiff by receiving the amount secured by the bond (exhibit I) from Krishna Ayyangar, the latter became the person entitled to sue for contribution and the plaintiff lost his right to sue, In our opinion this is not the legal effect of the transactions between Krishna Ayyangar and the plaintiff. Krishna Ayyangar purported to convey the lands free from incumbrances. He had, in fact, nothing more to convey than an equity of redemption. The moneys received by the plaintiff under the bond (exhibit I) represent the difference between the value of the lands if they had been conveyed, free from incumbrance and their value subject to the existing incumbrance. The result of the transactions was that Krishna Ayyangar merely conveyed an equity of redemption at an agreed price. The plaintiff's right to rateable contribution was in no way affected by the indemnity bond or the payment be him thereunder.
4. A further question was raised before us though not raised in the Court below--a question as to the basis of the contribution by the other properties which have benefited by the satisfaction of the whole mortgage-debt by the sale of the plaintiff's land. It was argued on behalf of the eighteenth defendant, a purchaser who derives title through Srinivasa Ayyangar the father, that, inasmuch as there was an admitted agreement between the father and the three sons, that each was to be liable for one-quarter of the mortgage-debt, the plaintiff was only entitled to contribution in respect of moneys paid by him in excess of his own liability for one-quarter of the mortgage debt, In other words the amount of the decree-debt being Kb. 26,507, the plaintiff must debit himself with Rs. 6,626, a quarter of this amount, before he can claim contribution from the other properties.
5. This question depends upon the construction of the words 'in the absence of a contract to the contrary' in Section 82 of the Transfer of Property Act. Having regard to the principle upon which the equitable doctrine of contribution is based, as illustrated [in the English authorities to which our attention has been called, it seems clear that an agreement binding only as between the mortgagors is not a 'contract to the contrary' within the meaning of the section, and that these words were intended to apply to contracts between mortgagor and mortgagee---contracts, for example under which some of the mortgaged properties were to be liable in the first instance and others were only to be liable in the event of the security of the properties liable in the first instance being insufficient.
6. In the present case the contract which, it is contended, is a 'contract to the contrary' which prevents the application of the doctrine of rateable distribution, was nothing move than a partition amongst the co-parceners of an undivided Hindu family. The proportionate liability of the members of the family inter se for the amount of the mortgage debt, existed apart from any express contract which they may have chosen to make. The contract as between the parties, the owners of the equity of redumption, is of course binding, but it is not a contract which binds their assigns Assuming that the plaintiff took with notice of this contract, inasmuch as such a contract does not run with the land at law he is not bound by it in equity by reason of the fact that he took with notice. See Austerberry v. Corporation of Oldham L.R. 29 Ch.D. 750 In our opinion there was no contract to the contrary within the meaning of Section 82, and the plaintiff is entitled to rateable contribution.
7. As regards the calculation of the contribution, the figures appear to be correctly worked out in paragraph 10 of the District Judge's judgment, and neither party takes any exception to them. The rights of the parties, other than the plaintiff, in respect of item No. 1 will be adjusted in another suit which is now pending.
8. As regards the finding of the District Judge upon the issue as to whether the plaintiffs brother-in-law was benami purchaser for the plaintiff of the land sold in suit No. 9 of 1394, we think the District Judge took an erroneous view of the legal effect of this transaction. The plaintiff was within his rights in providing his brother-in-law with the funds necessary for the purchase of the undivided half of the land which was sold in execution of the decree of Rangayya Goundan. The case of Hart v. Tara. Prasanna Mukherji I.L.R. 11 Calc. 718 has no Application to the facts of the present case, and there is no reason why any deduction should be made from the plaintiff's claim in this suit in respect of any profit which he may have made by re-sale of the land in question.
9. The issue as to whether the balance now in Court of the sale proceeds after satisfying the decree-holders in suits Nos. 19 of 1894 and 8 of 1893 is now liable for the plaintiff's claim has been disposed of by our decision in Appeal No. 151 of 1899.
10. In the result, we reverse the decree of the District Judge, and we find that the plaintiff is entitled to rateable contribution from the defendants mentioned in paragraph 10 of the District Judge's judgment of the amounts specified in that paragraph; together with interest at 6 per cent. per annum from October 28th 1896, up till realisation or till three years after date of decree. The eighteenth defendant must pay the. plaintiff's costs in the lower Court and his. costs of appeal. The plaintiff must pay the costs of appeal of the original fourth, now the nineteenth, defendant.