1. This reference has arisen out of an appeal preferred against the judgment and decree of Ray J., as his Lordship then was, dismissing the appellant's suit against the respondent for a declaration of charge on premises No. 79 Raja Naba Kissen Street, Calcutta for a sum of Rs. 24,442/15/0p., being the consolidated rates with interest due and payable by the respondent. During the hearing of the appeal before Sinha C. J. and myself a point of law arose for decision to the following effect:
'Whether a mortgagee could release one of the mortgagors and his security and sue for realisation of the entire mortgage claim from the remaining securities.'
It was held by a Bench decision of the Court presided over by B.K. Mukherjea, J., in Taran Roy v. Shyam Mondal, AIR 1942 Cal 226 that the mortgagor could not do so and if a mortgagor releases part of the security and proceeds against the other part, he can only get a decree for a proportionate amount. Having heard arguments of the parties, with respect to Mukherjea, J., we were unable to accept the principles of law laid down in that decision. Before the said Division Bench a Privy Council decision, Shah Ramchand v. Pandit Parbhu Dayal, 69 Ind App 98 = (AIR 1942 PC 50), was placed where the Judicial Committee held that in a suit for redemption, it is not open to the mortgagor to claim partial redemption and that the mortgage debt was one and indivisible. The Privy Council has, however, doubted whether a mortgagee can be affected by releasing part of a security and whether the views taken by the Calcutta High Court in several decisions are correct. At that stage, we were of the view that if the mortgage debt was only one and indivisible debt which could be realized from every part of the security then there was no reason why it was not open to the mortgagee to enforce the whole debt against a part of the security only. Since this view was not in consonance with the Bench decision in Taran Roy v. Shyam Mondal, (AIR 1942 Cal 226) (supra), the matter was referred to the Full Bench for a final decision on the said point. The reference is not limited to a specific question only as it is sometimes done but the entire appeal has been referred to us for its final disposal.
2. It may be stated here that in the original plaint the Corporation of Calcutta claimed a sum of Rs. 24,442/15as. on account of consolidated rates with interest payable in respect of the said premises, declaration of first charge on the said premises for the said sum under Order XXXIV, Rule 4 according to Form No. 5 (a) Appendix D to the Schedules of the Code of Civil Procedure. Initially the premises No. 79, Raja Naba Kissen Street, Calcutta, were not set out in the plaint. Admittedly, the land in respect of the said premises belongs to the respondent. The State of West Bengal requisitioned the said land and took possession on April 7, 1945 by a Memorandum of Agreement dated 17-9-1946. The material portions of the said Agreement read as follows:
AND WHEREAS the said property consist inter alia, of land AND WHEREAS the owner and the Government have mutually agreed to settle the amount of compensation payable by the Government to the owner in connection with the said requisition in the manner hereinafter appearing, now this agreement witnesseth as follows:
1. The Government shall pay and the owner shall accept and receive a payment of Rs. 675/- (inclusive of taxes) for the month for the said property with effect from the said date i.e., 7-4-1945, so long as the Government shall remain in possession thereof and the requisition continues.
2. The owner shall not claim or be entitled to any further compensation in lieu of land beyond the amount fixed and accepted by him in connection with the said requisition.
3. The owner shall meet and pay the revenue rent, municipal taxes and all other outgoing expenses relating to the said property whether payable by the owner or the occupier thereof.
Schedule above referred to:
Premises No. 79, Raja Naba Kissen Street, situated in the City of Calcutta'. It is the common case that the State of West Bengal has constructed building on the said land and the State of West Bengal is the owner of the building on the said land. The respondent in the written statement admitted his liability to pay his share of the consolidated rates as owner of the land and denied the liability to pay the entire consolidated rates of the said premises amounting to Rupees 24,442/15as/0p. It was also pleaded that the suit was bad for non-joinder of necessary party i.e., the State of West Bengal. Ray, J., after discussing some decisions of this Court held that a decree of charge on the building in the absence of the State of West Bengal not being a party to suit cannot be passed and, as such, he dismissed the suit on March 27, 1962. Thereafter, on November 19, 1962, this appeal was filed. Before the appeal Court, the appellant made an application for amendment of the plaint and on August 30, 1963, the amendment was allowed, as prayed for, with liberty to the respondent to file additional written statement. In the amended plaint a Schedule of description of the said premises was added. Material portions of which are as follows:
'All that the lands and structures comprised in premises No. 79, Raja Naba Kissen Street, in the town of Calcutta, containing by estimation 1 Bigha and 8 Cottahs to the same a little more or less. ..................'
In the body of the plaint, the appellant added, inter alia, that the claim of the appellant was 'in respect of the lands comprised in the said premises and/or in respect of the right, title and interest of the defendant in the said premises'. It was also pleaded in the amended plaint that if the respondent would be held to be the owner of the land in the said premises only and not of the structures, the appellant would be entitled to a declaration of first charge under the provisions of the Calcutta Municipal Act, 1951 for the said sum of Rs. 24,442/15as. or for such proportionate part of such sum as the court might deem fit in respect of the said lands. It was also mentioned that in such a case the appellant would agree to pray for the said charge on the basis that the appellant would abandon and release the said structures from such charge. The substantial prayer in the amended plaint reads as follows:
'A declaration of first charge on the said premises or the said lands and/or the right, title and interest of the defendant in the said sum of Rs, 24,442/15as. or such proportionate part thereof as to this Hon'ble Court may deem fit.'
In the amended written statement of the respondent, it was pleaded that the appellant was not entitled to a declaration of first charge for the said sum or for any other sum on the said land, inasmuch as, the State of West Bengal, not being a party to the suit, was the owner of the structures on the said land. Further, the respondent stated that the appellant had not elected to release the said structures from the said charge and, as such, the appellant was not entitled to release the statutory charge on a part of premises No. 79, Raja Naba Kissen Street, Calcutta. Nor could a decree be made for a proportionate part of the said consolidated rates as such apportionment could not be determined in the absence of the State of West Bengal.
3. Before this Full Bench Mr. A. Mitra counsel for the appellant with Mr. J. Mitra has strenuously contended that his client is entitled to get a declaration of charge in respect of the lands in the said premises and also the respondent's interest in the building under the Calcutta Municipal Act, 1951 in the absence of the State of West Bengal, inasmuch as his client has agreed to release his claim for a declaration of charge on the structures which belong to State of West Bengal. Relying upon several Indian decisions of different High Courts including the said Privy Council decision, he has argued that the mortagage debt is one and indivisible and there is a statutory charge on all parts of the security i.e., on the land and the structures under the Calcutta Municipal Act, 1951. Analogous to the law of mortgage, the appellant has the statutory right to get a declaration of charge on one of the securities for consolidated rates on releasing the other security. According to him, the Bench decision in Taran Roy v. Shyam Mondal (AIR 1942 Cal 226) is no longer a good law and there is no question of any hardship on the part of the respondent against whom the charge is sought, inasmuch as, he always has the right of contribution against the owner of other security, in the present case the State of West Bengal. It is also urged by him that the suit has not been instituted against the respondent on the basis of the presonal liability of the owner of the land and the building thereon under Section 191 of the Calcutta Municipal Act. His client has prayed for a declaration of a charge on the said premises under Section 253 of the said Act. As the liability to pay the consolidated rate is one in respect of the land or building and the declaration of the charge has been sought for on the land only, the owner of the structure being the State of West Bengal need not be a necessary party. According to him, Ray, J., has, therefore, erred in dismissing his client's suit.
4. Mr. R.C. Deb (with Mr. D. Ghosh and Mr. Roy) counsel for the respondent has raised important points of law justifying the judgment and decree of Ray, J. Accordingly to him the appellant's suit, as framed, is not maintainable. The plaint even after its amendment does not disclose any cause of action against his client. The Corporation of Calcutta has prayed for a declaration of first charge on Premises No. 79 Raja Naba Kissen Street, Calcutta. There is nothing to show that the said sum is the consolidated rates for the land only. It the consolidated rates relate both to land and structures, the owner of the structures i.e., the State of West Bengal, is a necessary party. Secondly, Section 253 of the Act provides for a declaration of charge upon the land or building. But the charge can be declared only when his client's personal liability to pay the consolidated rate, i.e., Rs. 24,442/15as. is established by the appellant. There is nothing to show that his client is liable to pay the entire sum. Thirdly, it is the admitted case here that a building has been constructed on the land belonging to his client and the State of West Bengal is the owner of the structure. The Corporation of Calcutta has however, in this case, made the assessment of building and not land which are two different units of assessment under Section 253. It is true that the consolidated rates of a building constructed on a land is determined after taking into consideration the value of the land also but the assessment is assessment of the building as an independent unit of assessment. The said amount of Rs. 24,442/15as./0 p. is the consolidated rates and taxes for the relevant years for the building. Such rates and taxes are payable by the owner of the building. The respondent is neither the owner nor the occupier of the building. Thus, his client's liability to pay the said amount on the basis of which the charge has been prayed for has not been established. Fourthly, on a construction of Section 176 read with Section 173 of the said Act, the Corporation of Calcutta can, in a particular case, value any portion of a building or land separately from the rest of the premises. In the present case, no separate valuation of the land on which the building has been constructed has been made. Thus, the said sum of Rupees 24,442/15as. is the outstanding consolidated rate for the building, In the absence of the owner of the building the Corporation cannot succeed in getting the prayer in the plaint. Fifthly, in the present case, no oral evidence has been adduced. It cannot be denied that the said consolidated rate is payable as statutory liability for the entire premises i.e.. the land and the building and, as such, the apportionment of the rates and taxes should have been made and the liability of the owner of the building cannot be affixed on the owner of the land only. Sixthly, although valuation of any premises may be determined separately in respect of land and building under Section 176, apportionment of consolidated rates and taxes for the said premises which comprise land and building owned by separate persons is not permissible, under the Calcutta Municipal Act. In any event, in the absence of the State of West Bengal, no apportionment of such rates and taxes is possible and, as such, his client's liability to pay the said sum of Rs. 24,442/15as. as consolidated rate which is condition precedent to declaration of charge under Section 253 has not been established. Lastly, the collection of consolidated rate being a public and statutory duty under the Calcutta Municipal Act, the appellant cannot release or relinquish the statutory charge provided under Section 253 of the Municipal Act.
5. The plaint in the suit, as framed, shows that the Corporation has claimed only 'declaration of first charge on the said premises' for the said sum of Rs. 24,442/15as/0p. and 'decree under Order XXXIV, Rule 4 according to Form No. 5-A, Appendix 'D', First Schedule to the Code of Civil Procedure'. The annexure to the amended plaint describes 'the said premises' as 'all that the lands and structures comprised in premises No. 79, Raja Naba Kissen Street in the town of Calcutta, containing by estimation 1 Bigha and 8 Cottahas be the same a little more or less. ...................................'.
The declaration of the charge has been sought for a statutory liability of the respondent for a sum of Rs. 24,442/15as./0p. particulars of which have been set out in the plaint. It is significant that there is nothing in the plaint which indicates a money decree or a personal decree against the owner and/or occupier on the basis of provisions in Section 191 of the said Act. Admittedly, the land belongs to the respondent but the building on the said land having been constructed by the State of West Bengal belongs to the latter. It is extraordinary that no evidence has been led on the nature, quality and the extent of the building but it is the common case that the State of West Bengal happens to be the owner and occupier of the said building. Mr. Deb has contended that the declaration of charge can only be made by the trial Court if the Corporation can establish the liability to pay the said amount against his client who is only the owner of the land. But in the written statement it has been pleaded that the State of West Bengal being the owner of the structures should have been made a party inasmuch as the latter is liable for the consolidated rates in respect of the constructed building. It has also been stated in the written statement that his client repeatedly called upon the Corporation to apportion the consolidated rates between the owner of the land and the owner of the building Mr. Deb is quite correct in his submission that the Corporation's claim for the said amount has got to be established first before a declaration of charge can be made. But there are difficulties in accepting Mr. Deb's contention. There is no mandatory duty on the part of the Corporation to value land and building separately or to apportion the consolidated rate between the owner and the occupier. In fact, one of the points he has urged is that the apportionment of consolidated rates is not permissible in law under the Calcutta Municipal Act. Reference has been made to Section 176 of the said Act which reads as follows:
'176. The Commissioner may in his discretion (value) any out-house appertenant to a building or any portion of a building or land appertaining to any premises separately from the rest of such building'.
The marginal note indicates that the Commissioner has power to value separately out-houses and portions of building. It is not incumbent upon the Commissioner to value separately the land and the building. According to the Shorter Oxford English Dictionary the meaning of the word 'appertain' is 'to pertain, to relate'. Thus it is possible to argue that the land on which the building has been constructed may be described as the land appertaining to any building. Section 176 has used the words 'land appertaining to any premises'. Even assuming that the Commissioner has got the discretion of separately valuing (a) houses appertenant to a building or a portion of the building (b) land appertaining to any premises, as set out in Section 176, this section uses all the three words, ''building', 'land' and 'premises'. The plaint has used the words 'premises' in respect of the properties at 79, Raja Naba Kissen Street, Calcutta. In the Schedule to the amended plaint, the premises include land and structures. The extraordinary fact in this case is that no evidence has been led before the trial Court on the following questions:
(a) What was the nature of the structures on the said land in the period between 1945-46 to 1951-52 for which the consolidated rate has been claimed ?
(b) Whether the structures standing on the said land originally belonged to the owner of the land ?
(c) Whether the old structures have been demolished and new structures have been constructed ?
(d) Whether new structures comprise a high or a small building or brick-built walls with roof made of asbestos, tiles or corrugated tin ?
(e) Whether the structures have been constructed on the entire area of 1 Bigha and 8 Cottahs or a portion of the same ?
6. In the absence of such evidence before the trial Court it is difficult to accept the submission on this point of Mr. Deb that the Commissioner of Calcutta Corporation should have exercised its discretion in valuing separately the land and the building.
7. The Counsel on behalf of the parties have proceeded on the basis that there is a building constructed by the State of West Bengal as the owner and occupier of the same. The point to be decided is whether the owner of the land has a liability to pay the consolidated rate in respect of the land and the building which are owned by different parties.
8. Mr. Deb has argued that the liability to pay the said sum of Rs. 24,442/15as/0p. is a liability in respect of the building and his client is neither the owner nor the occupier of the building. The only case that has been made in the written statement is that the respondent is liable to pay consolidated rate in respect of the land only. It has not been suggested at any stage what would be the exact amount payable by the owner of land as the statutory liability of the owner of the land. The plaint only discloses that the said amount is the total consolidated rate due and payable by the respondent for the relevant period in respect of the land and the structures which have been described in the original plaint as 'the premises'.
9. The suit, as framed, is based upon the provisions in Section 253 of the Calcutta Municipal Act, 1951. Section 253 reads as follows:
'253. The consolidated rate due from any person in respect of any land or building (together with interest thereon, if any, payable under Section 236 Sub-section (3) shall, subject to the prior payment) of the land revenue (if any) due to the Government thereupon be a first charge upon the said land or building and upon the immovable property (if any) found within or upon such land or building and belonging to the said person'. This Section is included in Chapter XVII which deals with 'Recovery of the Consolidated Rate and other taxes'. Part IV of the Act provides for taxation by the municipal authorities. This Part includes Chapter XI to Chapter XVII. Chapter XI deals with imposition of consolidated rate. Section 168 in this Chapter sets out the mode of fixation of consolidated rate in connection with assessment of lands and buildings. Under Section 173, there is a mandatory duty for the Commissioner to value land and the huts in a bustee. Under Section 176 of this Chapter, however, the Commissioner in his discretion may value ''any out-house appertenant to a building or any portion of a building or land appertaining to any premises separately from the rest of such premises'. This Section clearly contemplates that the word 'premises' includes 'land' 'building' or both. The marginal note in Section 191 indicate the persons who would be liable for the consolidated rate. It reads as follows:
'Payment and recovery of consolidated rate: One half of the consolidated rate shall be payable by the owners of the lands and buildings and the other half by the occupiers thereof. The payment shall be made in quarterly instalments and the quarters shall be taken to commence from the first day of April, the first day of July, the first day of October and the first day of January. The instalments shall be payable on or before the fifteenth day of May, the fifteenth day of August, the fifteenth day of November and the fifteenth day of February respectively, for such quarters'. Thus, this Section imposes a personal liability of the owner of the lands and the buildings for one half of the consolidated rate of the entire premises as ordinarily known as 'owners' tax', and that of the occupier for the other half as 'occupier's tax'. This rate is one consolidated rate for the entire premises which may include land, building or both. It is possible to have premises without any building and one person may be the owner of the land and another person the occupier. Similarly, the owner and the occupier may be the same person. In a case where there is a structure or building on a land and the owner of the land and the owner of the building is the same person, the entire consolidated rate is to be paid by the owner inasmuch as he is not only the owner but also the occupier thereof. On the same basis in cases where the premises do not contain any structure or building, the owner and occupier of the land shall be personally liable to pay the entire consolidated rate. But there are cases where, although the owner of the land and the owner of the structure or building are the same person or persons but other persons are in occupation of the said structures or buildings, the owner has the personal liability to pay half of the consolidated rate and the occupier will have to pay the other half. It is also possible that the owner of the land and the structures or buildings may allow other persons to occupy the land or building but may stipulate that the owner alone will pay the owner's tax and occupier's tax i.e., the entire consolidated rate. But that would be an arrangement between the owner and the occupier as it is evident in the present case under the agreement set out earlier. The personal liability of the owner of the land to the municipal authorities to pay half of the consolidated rate and that of the occupier to pay the other half remains. It is permisible for the Corporation to institute a case for recovery of half of the consolidated rate from the owner and also the other half from the occupier if such tax has not been paid by the owner or the occupier. This is one of the methods by which recovery of consolidated rate is possible. In addition to such remedy the Corporation has been empowered under Section 206 to exercise its right of distress by attaching the movables in the land or building to recover the consolidated rate, independent of any personal stipulation between the owner and the occupier, if they are different persons. Even the owner may be liable to pay the occupier's tax in addition to his own share- as owner. Reference may also be made to Section 200 where the Commissioner has been empowered to levy entire rate from owner in certain cases. Section 201 provides that where the entire consolidated rate is paid by the owner of any land or building under Section 200 such owner may recover from the occupier half of the rate so paid by the owner. Similarly, under the special circumstances mentioned in Section 205 and Section 206 the occupier may also be liable for the portion of the consolidated rate payable by him. Chapter XII deals with tax on carriages and animals. Similarly Chapter XIII, Chapter XIV Chapter XV and Chapter XVI set out the provisions for taxes on professions, trades and callings, scavenging tax and tax on carts, tax on advertisements, respectively. As stated earlier Chapter XVII, the last Chapter in Part IV, is a general provision for the recovery of consolidated rate and other taxes. The first Section under this Chapter is Section 234 which reads as follows: ''The provisions of this Chapter shall be deemed to be in addition to and not in derogation of any powers conferred by or under other Chapters of this Act for the collection or recovery of the consolidated rate and other taxes.'
10. Under Section 237 one of the principal modes of recovery mentioned in this Chapter is the power of the Commissioner to cause issue of warrant by distress and sale of moveable property belonging to the person on whom warrant of distress has been served after service of a notice of demand under Section 236. Section 251 empowers the Corporation to institute suit against a defaulter if the entire amount of the arrears of consolidated tax or part thereof has not been otherwise realised. Section 253 is an independent mode of recovery of the consolidated rate in respect of any land or sliding as distinguished from a decree or personal liability under Section 191 or a decree for balance of arrears of consolidated rate under Section 251. This Section provides for a statutory charge on land or building if consolidated rate or tax has not been paid by any person. The scheme of the Act expressly empowers the Corporation under Section 253 for getting a declaration of charge on the land or building for the recovery of consolidated rate in respect of such land or building, independent of and in addition to the other remedies mentioned above. This construction of Section 253 to my mind, seems to be the correct one. Reliance may be placed upon Akhoy Kumar Banerjee v. Corporation of Calcutta, ILR 42 Cal 625, 633 - (AIR 1915 Cal 478 at p, 480) and Subimal Chandra Chatterjee v. Corporation of Calcutta, 51 Cal WN 326 = (AIR 1947 Cal 369), although Mukherjee, J. and Chakravartti, J., as their Lordships then were in those decisions construed the analogous Section 228 of Calcutta Municipal Act, 1889 and Section 205 of Calcutta Municipal Act, 1923, respectively. In the latter decision Blank and Chakravartti, JJ., held that a suit for declaration of charge under Section 205 of the said Act of 1923 for payment of occupation tax is maintainable, although occupier has not been made a party.
11. One of the principal contentions of Mr. Deb is that in the scheme of the Act either land or building could be the units of assessment. Section 176, expressly empowers the Commissioner to value land appertaining to any building separately from the building. Admittedly, this has not been done in the present case. Section 168 (2) and (3) also substantiate the fact that the assessment can take place in respect of land or building separately. It is nobody's case according to Mr. Deb, that the assessment has been done in respect of land in the present case. He has, therefore, argued that the assessment in this case being the assessment of the building, the State of West Bengal as the owner of the building, is a necessary party and in the absence of the latter, the suit is not maintainable.
12. In my view, this contention cannot be accepted. Firstly, in the court below, as stated earlier, no evidence has been adduced on either side as to the nature of the building or the mode of assessment. On the contrary, the said amount has been claimed as consolidated rate on Premises No. 79, Raja Naba Kissen Street Calcutta. It is true that for the first time before the appeal court in the amended plaint, the premises have been described which have included lands and structures. But there is nothing on record to show that the order of assessment was called for by the respondent's Solicitor which could have given some indication as to the mode of assessment. In the absence of any evidence to the contrary the said premises have been assessed and consolidated rate has been determined in accordance with Section 168 read with Section 165. Section 168 (3) expressly provides that in determining the assessment of building the market value of the land as part of the said premises should also be considered. Thus, it cannot be said that the consolidated rate has been levied or claimed only on the basis of the value of the building. The consolidated rate, mentioned in Section 253, must have reference to both the building and land which comprise premises No. 79, Raja Naba Kissen Street. Secondly, the words 'land or building' in Section 253 are not necessarily disjunctive. The consolidated rate payable under this section must be in respect of 'land or building' or both in the context of the scheme of the Act. 'Land' has not been denned in the Act and accordingly it must mean vacant land in contradistinction to a structure or building. Building has been separately defined in Section 5 Sub-clause (vi) which shows that it includes 'any hut or structure of masonry, mud or any material whatsoever excepting temporary sheds like hogla erected on ceremonial or festive occasions'. The ordinary meaning of the word 'building' is, according to the Shorter Oxford Dictionary, 'that which is built, structure, edifice'. But the definition being an inclusive definition the connotation is extended as set out in the said definition. In the same dictionary the building-lease however, has been defined as 'a lease of land for building upon'. The definition being an inclusive definition the proper meaning of the word 'building' is the structure and the land appertaining to it. But Section 176 gives the Commissioner power to exercise his discretion in valuing land appertaining to the building from the building itself. It is a common case that such separate valuation has not been done in the present case. It may be added here that words 'land or building' have also been defined in Section 5 (41-A). But this definition also is an inclusive definition. It is, therefore, clear that although ordinarily 'land' means 'a vacant land' and 'building' means only a structure other than land, the word 'building' in Section 253 must mean building on land, in the scheme of the Calcutta Municipal Act. It may be added here that the definitions as set out in Section 5 are restricted to the opening words of the Section stating, 'for the purposes of this Act unless there is anything repugnant in the subject or context.' It is obvious that the building cannot stand on a vacuum. Thus, the consolidated rate in respect of the land or building in Section 253 must relate to building with land. If ordinary meaning of the words 'land' or 'building' are accepted then the consolidated rate can only be in respect of either a vacant land or a structure without land. Mr. Deb's contention, therefore, leads to the absurd construction that where there is a building on a land there cannot be declaration of charge of either building or the land. Section 176 only gives discretionary power to the Commissioner in particular contingencies. Thirdly, Section 165 gives the Corporation a power to impose a consolidated rate upon 'all lands and buildings in Calcutta', It cannot be the legislative intendment that there cannot be imposition of consolidated rates on lands only or buildings only. There may be cases where there are lands but no structure has been constructed. Thus the word 'and' in Section 165 must be construed as 'and/or'. Mr. Deb has laid emphasis on Section 168 (3) in support of his contention that building is the unit of assessment But Section 168 (1) makes it clear that for the purpose of assessment to the consolidated rate the annual valuation of 'any land or building' has to be determined. The fact that the words 'any land or building' have been used in Section 253 and Section 168 contemplate the modality of assessment for the purpose of fixation of consolidated rate of all classes of property. In Calcutta, there could only be either a land without structure or building or a land with structures or building. As stated earlier, under Section 5 (c) 'building' includes structures. There cannot be building without a land. The method by which gross annual rent in respect of a land without building is to be assessed is set out in Section 168 Sub-clause (2) and Section 168 Sub-clause (3) only provides method of determining gross annual rent where building is constructed on a land. In the process of computation of the consolidated rate of a building on a land the value of the land has to be considered and this method of determining the gross annual rent has been set out in Sub-clause (3). The consolidated rate, therefore, must relate to either a land without building or a land with building. On a construction of Section 165 read with Section 168, the consolidated rate can only relate to a land without structure or building or Land with a structure or building. Thus, on the subject of imposition of consolidated rate the intention of the legislature is that the word 'building' in Section 253 must mean building with land subject to the provisions of Section 176, as discussed earlier. The case cited by Mr. Deb, Stevans v. Gourley, (1859) 141 ER 752, does not throw any light on the meaning of the word 'Building' inasmuch as this decision refers to a construction of the said word within the meaning of Metropolitan Buildings Act, 18 and 19 Vict. C. 122. Fourthly, the word 'premises' as stated earlier, may mean 'land' 'building' or both. In Shorter Oxford Dictionary the premises have been described 'as a house or building with its ground or other appurtenances.' In the plaint also consolidated rate has been claimed by the Corporation on 'premises' No. 79, Raja Naba Kissen Street In the amended plaint the premises have been stated to be 'all with the land and structures.' It has not been pleaded in the written statement or amended written statement that the said consolidated rate has been claimed as a levy on the building only. In any event, no evidence has been led by either party which might throw a light on the basis of which the consolidated rate has been charged. The respondent should have asked the Corporation to produce its records, particularly the order of assessment to substantiate his case that the building and not the land comprising an area of 1 bigha 8 cottahs has been valued for the purpose of fixation of the said consolidated rate. Section 168 (3) provides that the building could be assessed, inter alia, after consideration of the valuation of the land on which the building has been constructed. Fifthly, a building may be constructed only on a small portion of the land keeping the major portion vacant to be used as a garden, courtyard or a lawn etc. It cannot be said that the assessment of such premises is to be construed as assessment of a building. There is no mandatory duty on the part of the Corporation authority to value the land and the building in the said premises separately although the corporation can do so under Section 176. In any event, in this particular case, the consolidated rate has been claimed on land and building and there is no evidence to the contrary. There is no statutory bar to assess land and building together, unlike the assessments of a bustee where, land and structures have to be valued separately under Section 173. Sixthly, the words 'land or building' lave been used in Section 253 thrice. In the second limb of the said section the word 'respectively' has not been added to the words 'land or building'. The absence of the word 'respectively' also supports the view that the words 'land or building' in the first limb must mean land and building for the purpose of declaration of charge on both, In a proper context the word 'or' may mean 'and'. Further unless the scheme of the Act or legislative intendment is repugnant to such a construction, alternatives are not necessarily mutually exclusive. In a proper case, they may be used as concurrent or conjunctive. Reliance may be placed in the case of Haridas Mundra v. National and Grindlays Bank Ltd., : AIR1963Cal132 .
13. Mr. Deb has also submitted that in any event the consolidated rate having been claimed on the building also and his client not being the owner or occupier of the building, the plaintiff's prayer for declaration of charge on the building does not arise. He, therefore, has urged that the point of law referred to in this Full Bench reference need not be answered. For the said reason, Mr. Deb has not thought necessary to distinguish the proposition of law laid down in Taran Roy v. Shyam Mondal, (AIR 1942 Cal 226) (supra) and those referred to in Shah Ramchand v. Pandit Parbudayal, (AIR 1942 PC 50) (supra). In my view, the principles of law laid down in those decisions are relevant for the purpose of deciding the present appeal. Section 253 provides for a declaration of charge on the premises for which consolidated rate has not been paid. If it is held that the plaintiff appellant in this case is entitled to a declaration of charge on both the land and the building, this suit should be dismissed on the ground that the State of West Bengal, as the owner of the building, has not been made a party. It is, therefore, necessary to examine this contention. The Corporation has prayed for declaration of charge on the said premises which Includes the land and building. But in the emended plaint the Corporation has stated that the claim for the said sum of Rs. 24,442-15as-0p. was in respect of 79, Raja Naba Kissen Street or in respect of the lands comprised in the said premises and/or in respect of the right, title and interest of the respondent in the said premises. As I have already held that the said consolidated rate has been levied both on land and building in the said premises, this amendment does not materially assist the case of the corporation. But in Part 2 of the amended plaint an alternative case has been made out that the Corporation may abandon and/or release the said building from such charge. Before the Full Court also the counsel for the appellant has strongly relied upon the observation of Judicial Committee in Shah Ramchand v. Pandit Parbudayal (AIR 1942 PC 50) (supra) where it has been held that the mortgage debt is one and indivisible and, as such, the mortgagee has the option to release a part of the mortgage land or security in respect of the entire debt. The Judicial Committee has approved the principle of law laid down in the Full Bench case in Perumal Pillai v. Raman Chettiar, ILR 40 Mad 968 = (AIR 1918 Mad 1030) (FB) where the same view had been taken. In fact excepting the Calcutta High Court, Full Bench decision of the Madras High Court has been followed by Nagpur High Court and Allahabad High Court in Shamlal v. Babulal, AIR 1951 Nag 445 and Sanwal Singh v. Ganeshi Lal, (1913) ILR 35 All 441 respectively. The decision in Taran Roy v. Shyama Mondal, (AIR 1942 Cal 226) (supra), Mukherjee and Roxburgh, JJ., following the previous Calcutta decision took a contrary view, and held that a mortgage debt could be proportionately reduced and realised from a part of the security held by some of the mortgagors or, in other words, some portion of the mortgaged land belonging to some of the mortgagors may be sold for a lesser amount of the mortgage debt. In fact, in the said Calcutta case although some of the mortgagors were not impleaded the suit was held to be maintainable for the purpose of realisation of the proportionate amount of debt. The learned Judge, however, remanded the matter to the trial Court to find out the proportionate amount of the land for which the mortgagors defendants in that case were liable. As the Division Bench of this Hon'ble Court has come to the said conclusion the matter has been referred to this Full Bench. In my view with respect to the learned Judges it is difficult to agree with the view taken by them. In the said case mortgage decree was passed on the basis of a compromise under which the total amount declared to be due to the mortgagee decree-holder, was Rs. 3,809/-, out of this a sum of Rupees 500/- had to be paid by the judgment-debtor within a particular time and the balance was payable in 22 annual instalments. There was a provision in the compromise decree that in default of payment of any one of the instalments the entire sum would be recoverable at once. The learned Subordinate Judge held, on evidence, that the default took place on April 11, 1931 but as the application for execution of the decree was presented on March 26, 1935, the application for execution was held to be time barred. Thereafter the mortgagee preferred the appeal against the order of the Subordinate Judge. The Division Bench set aside the said order and held that the application for execution was not time barred. One of the points raised by the Counsel for the mortgagors was that the appeal should be dismissed inasmuch as the appeal had already been dismissed for non-prosecution against three of the substituted respondents who were the heirs of the judgment-debtors. The learned Judges also found from the records that the appeal was dismissed for non-payment of process fees and Deputy Registrar's costs as against some of the respondents and they, therefore, decided that the appeal could not be proceeded against those respondents. The question arose whether the appeal was maintainable against other respondents. In answer to the said question the learned Judges held 'the point is not altogether free from doubt. If some of the persons interested in the equity of redemption have been left out in the original mortgage suit or if they had been made parties after the period of limitation had expired, it is now settled by series of decision of this court that the plaintiff is entitled in such cases to a decree for proportionate shares of the mortgage money as against the defendants who are actually on the record or against whom the suit is not barred by limitation and the fact that all the mortgagors were not parties before the court would not justify the dismissal of the whole suit; vide 25 Cal WN 594 = (AIR 1921 Cal 554); 29 Cal WN 51 = (AIR 1925 Cal 152) and (1906) ILR 33 Cal 613.' In that case the learned Judges, in the context of discussing the scope of the executing court in re-opening the decree, have observed: 'We do not agree with the learned Advocate for the appellants that what the court should do in such cases is to allow the decree-holder to execute the entire decree by sale of the interest of those judgment-debtors against whom the application was not time barred. It would be manifestly contrary to all the principles of equity that the entire burden of mortgage should be thrown upon some of the mortgagors when by his own laches or negligence the plaintiff lost his remedy against the rest'. It was on this basis the learned Judges directed that the execution should proceed against the respondents other than the respondents against whom the execution application was time barred. The view in this Bench decision is contrary to the principles laid down in Shah Ramchand v. Pandit Parbhudayal, 69 Ind App 98 = (AIR 1942 PC 50) (supra). In this decision the Judicial Committee in discussing the scope of Section 60 of the Transfer of Property Act held at p. 110 (of Ind App) = (at p. 54 of AIR), 'the integrity of a mortgage is not broken except where the mortgagee has purchased or otherwise acquired as proprietor a certain portion of the property mortgaged'. Rankin, J., approved the Full Bench decision of the Madras High Court in Perumal Pillai v. Raman Chettiar, (AIR 1918 Mad 1030) (FB) (supra) and stated at p. 107 (of Ind Appl = (at p. 53 of AIR) 'it would indeed be unfortunate if right of contribution which exists as between the mortgagors or persons claiming under the mortgagor were found to have been inadequately expressed in this statute. That right arises to them inter se because they cannot require the mortgagee to have recourse to their several properties equally or rateably, the whole debt being charged on every part of the mortgage property. But it may be doubted whether it gives rise to any equity in them which takes away the right of a mortgagee to diminish his own security except on condition of abating part of the debt -- to say nothing of the more stringent penalty of exposing himself to piecemeal redemption. It is not a very plain requirement of good conscience that the right of the mortgagee should give way to the rights of contribution between persons who have taken interests which are subject to the mortgage. However, that may be, the first question is whether the release of part of the property by the mortgagee does take away as regards that part the liability to contribute which Section 82 imposes on the different parts. Their Lordships agree with the Full Bench of High Court of Madras that this proposition is not substituted and that a basis for the alleged equity is not made out on the face of the Act.' It may be stated here that the Calcutta Bench delivered the judgment on August 1, 1941 whereas the Judicial Committee have laid down the said proposition of law on April 20, 1942.
14. Mr. Deb, however, has not dealt with the Calcutta decisions also on the ground that the present appeal relates to a statutory charge under the Calcutta Municipal Act and that the concept of charge being different from that of mortgage, the said decisions are not relevant. It is true that, unlike the concept of mortgage, a charge does not involve a transfer of interest in the property but the creation of a right of payment out of a specified property. It is well settled that whereas a charge only gives right to payment out of a particular fund or particular property without transferring that fund or property, the mortgage creates a transfer of interest in specific immovable property. But it cannot be said that the principles of law discussed in the said Calcutta decision and the decision of the Judicial Committee are not relevant for the purpose of the present appeal. The material portion of Section 100 of the Transfer of Property Act reads as follows: ''Where immoveable property of one person is, by act of parties or operation of law, made security for the payment of money to another, and the transaction does not amount to a mortgage, the latter person is said to have a charge on the property; and all the provisions hereinbefore contained which apply to a simple mortgage shall, so far as may be, apply to such charge, ............' This section makes it clear that the principles of law relating to a simple mortgage should also attract a statutory charge under the Calcutta Municipal Act so far as they are applicable. In the present appeal the Corporation, being in the position of a mortgagee, has, in pursuance of the amended plaint, represented to this Bench that it is releasing the charge on the building which is only a portion of the entire security, i.e., the land and building in the said premises at 79, Raja Naba Kissen Street, Calcutta. In my view the mortgage debt is one and indivisible and it must be redeemed entirely and not at all. There is only one exception to the general rule which is provided in Section 60 of the Transfer of Property Act. The said exception is provided in the last portion of Section 60 which reads as follows: 'Nothing in this section shall entitle a person interested in a share only of the mortgaged property to redeem his own share only, on payment of a proportionate part of the amount remaining due on the mortgage, except only where a mortgagee, or, if there are more mortgagees than one, all such mortgagees, has or have acquired, in whole or in part, the share of a mortgagor.'
This section enumerates the mortgagor's right to redeem the mortgaged property. The mortgagee advanced money to the mortgagor on the security of such property. The mortgagee has a legal right on the entire security. There is no statutory bar for the mortgagee to release a part of his security and realise the entire mortgage debt from a portion of the security. In fact, this view is based upon a sound principle of law. If the mortgagee decides that his debt can be realised out of a portion of the security it is not necessary for the mortgagee to put the balance of the security for sale. In the present appeal the Corporation has categorically abandoned or released its statutory charge on the building and has decided to realise its entire debt from the land. This right has also been provided in Section 585-G of the Act where the Corporation has been empowered to 'institute and prosecute any suit or withdraw from or compromise any suit or claim other than a claim of the description specified in Clause (d) which has been instituted or made in the name of the Corporation.'
This section expressly empowers the Corporation to withdraw its claim in a suit instituted in the name of the Corporation. The claim sought for in the prayer is the declaration of charge on the said premises, i.e., 79, Raja Naba Kissen Street, Calcutta which Includes land and building. The declaration of charge in the plaint has been sought for in respect of the consolidated rate amounting to Rs. 24,442-15as.-0p. Thus the Corporation debt being one and indivisible, the said premises in its entirety can be charged under Section 253 as described earlier. The respondent, however, in the written statement has agreed to pay only the consolidated rate relating to the land which belongs to him and not the structures which belong to the State of West Bengal. The integrity of the consolidated rate cannot be broken inasmuch as the Corporation has the statutory right to realise the entire amount from the property charged. In the present case the property consists of land and building, the ownership of which is vested in the respondent and, the State of West Bengal, respectively. The respondent's contention if accepted, amounts to a declaration of charge of his land for a sum lesser than the said consolidated rate amounting to Rs. 24,442/15/0p. There is no evidence before this Bench on the quantum of the consolidated rate for which the declaration of charge could be made on the land nor it has been suggested that any particular amount is only payable by the respondent. In any event, even if the respondent is held liable for payment of the consolidated rate only in respect of the said land, the total consolidated rate amounting to the said sum of Rupees 24,442-15as.-0p. has to be apportioned on the hypothesis that the divisibility of the consolidated rate is equitable and, as such, should be permissible in law. As discussed earlier there is no scope of equity or hardship, apart from what has been set out in the last proviso to Section 60 of the Transfer of Property Act. Further, there is no difficulty in applying the principles of law of contribution to the facts of the present case under Section 82 read with 100 of the Transfer of Property Act. The doctrine of indivisibility of the mortgage debt also support the observations of Sir Rashbehari Ghosh as set out by Rankin, J., in the said judgment of the Judicial Committee at page 109 which read as follows: 'To the general rule, however, that a mortgage must be redeemed entirely or not at all, there is one exception, and that is where equity of redemption in a portion of the mortgaged property becomes vested in the mortgagee himself.' The principle has been illustrated by the learned Author at p. 260 of the Law of Mortgage in India 1922 edition where he stated: 'Thus, if four brothers, each of whom is entitled to a fourth share of an estate, mortgage to a creditor as security for a debt contracted by them, one of the brothers cannot redeem his share on payment only of a fourth part of the debt. He would, no doubt, have a right to redeem the whole but he cannot redeem a part although there may be no question as to the extent of his share'. Reference, may also be made to the case of Pearce v. Morris, (1869) 5 Ch 227 where the owner of one-fourth of the equity of redemption was allowed to redeem the whole, leaving open the rights of the owners of the other three-fourths as between them and the party redeeming. Further, apart from express powers given to the Corporation to withdraw any claim in Section 585 (g) the, Corporation, being a statutory body, has the power to release a part of its security inasmuch as the said Act, having expressly conferred a power under Section 253 to have a charge on the said premises impliedly also grants the power of doing all acts which are essentially necessary for exercising the same: vide Gujarat University Ahmedabad v. Krishna Ranganath, : AIR1963SC703 (supra).
15. It has been contended also that as in the present case there is no unity of ownership between the owner of the land and the owner of the structures it is unfair to compel the owner of the land to pay the entire consolidated rats in respect of the land and building. As stated above, in India there is no scope for application of any principle of equity except as what have been incorporated in the statute, I may, however, add that it is desirable that in a case where the consolidated rate and taxes are claimed against the owner of the land and another person being the owner or occupier of the structures, both should be impleaded as parties defendants. Reference may be made to the observations of Chakravartti, J., p. 335 (of 51 Cal WN) = (at p. 374 of AIR) Subimal Ch. Chatterji v. Corporation of Calcutta, (AIR 1947 Cal 369) (supra).
16. The result is that the consolidated rate claimed in the suit relates to the land and the building and the Calcutta Municipal Act has empowered the Corporation to withdraw its claim against the owner of the building. I am, therefore, of the, opinion that the point of law referred to this Full Bench is answered in the following manner:
The consolidated rate within the meaning of Section 253 of the Calcutta Municipal Act, 1951 is one indivisible debt which can be realised from every part of the property charged and it is open to the Corporation to enforce the whole debt against a part of such charged property.
17. As the parties have agreed to have the appeal also disposed of by this Bench and the learned Chief Justice has assigned the said matter for such disposal. I hold that the judgment of the trial court is set aside and there will be a declaration of first charge on the land in the premises No. 79, Raja Naba Kissen Street, Calcutta for the sum of Rs. 24,442.94 paise and a decree under Order XXXIV, Rule 4 according to Form No. 5-A, Appendix 'D', First Schedule to the Code of Civil Procedure. In the premises the appeal is allowed. Parties will bear their own costs. Certified for two counsel.
Ajay K. Basu, J.
18. I agree.
B.N. Pyne, J.
19. I agree.