1. The facts necessary for deciding this second appeal are briefly these: One Seetharama Aiyangar and his nephew owned a village called Rangapanditha Agraharam. They sold it to defendants 2 and 3 and one Veeraraghavachari in 1907 for Rs. 3,500 and on the same day got from the vendees a mortgage deed for the amount. Under this document (Ex. 3) the price had to be paid in instalments extending over 8 years. There was a forfeiture clause that, if payments were not made on the due dates, the sums already paid should be forfeited and the vendors might take possession of the village. The payments not having been made regularly, the vendors instituted a suit for cancellation of the sale. Meanwhile, the three vendees had sold half of the village to defendant 1 on the 15th August 1908 for Rs 1,750 (see Ex. 6) for discharging the mortgage-debt under Ex. 3. He was, therefore, added as a party to the suit. He also obtained from defendants 2 and 3 a usufructuary mortgage in respect of their remaining two-sixths share of the village for Rs. 900 (see Ex. 10). In the suit instituted by Seetharama Ayyangar (O. S. No. 11 of 1911) a decree was given for the recovery of the purchase money from the original vendees. The defendant 1 who had become the owner of the half share and also mortgagee of two-sixths share of the village, deposited Rs. 2,062-0-0, in Court and remitted Rs. 1,866 to the District Judge in payment of the decree amount, as otherwise the property would have been sold in execution of the decree. It may here be observed that the former amount, viz., Rs. 2,062-9 was made up of Rs. 1,750 which had to be paid to discharge the debt due to Seetharama Ayyangar (see Ex. 6) plus interest till that date. Afterwards, the two-sixths shares originally mortgaged to defendant 1 were sold to the plaintiff by two sale-deeds. The suit out of which this second appeal arises was instituted by the plaintiffs for the redemption of two-sixths share of the village, in other words, of the mortgage of his share executed by defendants 2 and 3 in favour of defendant 1. Defendant 1 contended that he was in law entitled to more than Rs. 900 mentioned in the document Ex. 10, as he as mortgagee in possession had paid the entire decree amount in O. S. No. 11 of 1911, and thus saved the property from sale.
2. Both the Courts held that, so far as the sum of Rs. 2,062-9 was concerned, defendant 1 can claim no credit as that amount had to be paid as the value of the half share which he had purchased under Ex. 6. As regards the other sum the District Munsif held that, since defendant 1 the mortgagee saved the property from sale by making that payment, under Sections 72 and 82, Transfer of Property Act, he is entitled to get towards the payment of that amount rateable contribution from the plaintiff who represents defendants 2 and 3. He held that the half share of defendant 1, the one-sixth share of Veeraraghavachari and the two-sixths shares of defendants 2 and 3 are liable to contribute rateably to the mortgage-debt due to Seetharama Ayyangar, i. e., to the decree debt in O. S. No. 11 of 1911. In this view he came to the conclusion that the plaintiff who has purchased the equity of redemption from defendants 2 and 3 of the two-sixths share should pay for redeeming the property in addition to Rs. 900, the sum mentioned in the document, one-third of Rs. 1,866, the sum paid by defendant 1 towards the decree debt in O. S. No. 11 of 1911. Defendant 1 preferred an appeal against this decree stating that he was entitled to get more from the plaintiff by way of rateable contribution. The Subordinate Judge held that he was entitled to get not one-third, but two-thirds of the amount paid by him, but he held that the amount paid by him was not Rs. 1,866, but only Rs. 1,662-8. Against this decree of the Subordinate Judge the plaintiff has preferred a second appeal and defendant 1, a memorandum of objections.
3. In the second appeal two points are argued by the appellant's learned vakil; (1) that the lower Court ought to have held that the plaintiff is not bound to pay any sums other than what is mentioned in the document as the mortgage amount; and (2) in any event, he should not be called upon to pay more than one-third of the amount found to have been paid by defendant 1 to save the property from sale.
4. As regards the 1st point, we do not think it is now open to the appellant to argue that he should not be called upon to pay anything more than Rs. 900 mentioned in the document, as he did not prefer an appeal against the District Munsif's decree which held that he had to pay in addition to Rs. 900 one-third of Rs. 1,866 for redeeming the property.
5. As regards the second point, we have come to the conclusion that the decision of the Subordinate Judge is right. Ordinarily the half share of defendant 1 also would be liable to contribute rateably to the decree debt in O. S. No. 11 of 1911. But in this case such liability does not arise as, at the time when the half share was sold to him by defendants 2 and 3 and Veeraraghavachari its owner, it was sold to him absolutely. A perusal of the document would show that it was agreed that towards the debt due to Seetharama Ayyangar the vendees of the property expected the 1st defendant to pay the amount mentioned in it and nothing more. No doubt as between Seetharama Ayyangar and defendant 1, the property in his hands would be liable to the former's debt; but the question now is between defendants 2 and 3 under whom the plaintiff claims and defendant 1. Between them it was clearly understood, as may be inferred from Ex. 6, that the defendants' half share should be free from any further liability. If defendants 2 and 3 are bound by this agreement, the plaintiff who has purchased the equity of redemption from them is also bound by it. Veeraraghavachari, the other party to the sale-deed, is not before us, but his absence does not affect the question as the plaintiff has purchased his share of the property. It is not disputed that the equitable principle of contribution embodied in Section 82, T. P. Act, should be applied in determining the liability of the parties in this case. According to this principle when several properties are mortgaged to secure one debt, such properties are liable to contribute rateably to the payment of that debt, only in the absence of a contract to the contrary. We think such a contract exempting defendant 1's half share from liability to contribute exists in this case, and the plaintiff through his vendors, defendants 2 and 3, is bound by this contract. In deciding the case the District Munsif has omitted to give effect to this arrangement between the parties, while the Subordinate Judge has given effect to it. We uphold his decision and dismiss the second appeal with costs.
6. In support of the memorandum of objections the learned counsel for defendant 1 has argued two points; the first point taken is that the Subordinate Judge in the absence of an appeal by the plaintiff, was wrong in holding that only Rs. 1,562-8-0 was due for the future instalments of the decree debt in O. S. 11 of 1911 and not Rs. 1,866-0-0 as found by the District Munsif. But, as observed by the District Munsif, neither party has explained how this amount was arrived at; and as the plaintiff did not challenge it, he accepted that amount as accurate. As the dates for calculation were before him, the District Munsif should have himself calculated the amount and arrived at the correct figure. As he did not do so, the Subordinate Judge went into the account and found the sum to be Rs. 1,562-8-0. The correctness of this amount has not been inpugned before us. In the circumstances, we think the decree of the Subordinate Judge cannot be questioned on this account.
7. The second point urged is that the Subordinate Judge should have awarded interest at nine per cent. till the date fixed for payment and not, as he has done, up to the date of the plaint. This point is not contested by the learned vakil for the plaintiff. We allow the memorandum of objections to this extent. In other respects it is dismissed. We order proportionate costs on the memorandum of objections.
8. In the result, the decree of the lower Court will be modified as indicated above. The time fixed for payment is extended by three months from this date.
9. (This case having been posted to be spoken to this day the Court delivered the following:)
10. The District Munsif will fix the amount of mesne profits which defendant 1 is entitled from the date when the plaintiff took possession till the date fixed for redemption on the date when he redeemed, whichever is earlier.
11. The plaintiff is entitled to get from defendant 1, interest at the rate of nine per cent. on Rs. 1,522-0-0 (900 plus 622, rupees one thousand five hundred and twenty two) for the period during which these sums were retained by him.
12. Credit is to be given to this Rs. 1,522 in drawing up the decree.
13. The District Munsif will frame and pass a decree on these lines.