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Mahendra Nath Kamilya Vs. Khetra Mohan Bera and anr. - Court Judgment

LegalCrystal Citation
Decided On
Reported inAIR1928Cal593
AppellantMahendra Nath Kamilya
RespondentKhetra Mohan Bera and anr.
Cases ReferredDhakeswar Prosad v. Harihar Prosad
- falls under article 11. the argument is this that the plaintiff having paid up the whole of the mortgage decree and so saved the property from sale has acquired a charge on the properties which he has saved from sale for the amount due from the other owners of the property.5. 'charge' is defined in section 100, t.p. act, in the following words:where immovable 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....6. it is perhaps difficult to see how the present case can fall within this definition of a charge. reliance has however been placed on the case of dhaheswar prosad singh v. harihar prosad narain singh.....

Cuming, J.

1. This appeal arises out of a suit for contribution. A mortgage was executed by one Joy Jana, father of defendant 8, in 1305 in respect of a certain property. Portions of this property were sold at various times to various persona among them being plaintiff and defendants 1 and 2. The mortgagee brought a suit for the realization of the money and the property was put to sale. The plaintiff deposited the mortgage money, saved the property and brought this suit for contribution.

2. The defendants adduced various pleas in defence. The first Court decreed the suit for various amounts against defendants 1 to 6. On appeal to the District Court it was held that the suit was barred by limitation, that the suit was bad for nonjoinder of one Akhil Seal and, that further there was no evidence to show the value of the different pieces of land, and so the plaintiff could not succeed. That Court allowed the appeal and dismissed the suit. The plaintiff has appealed to this Court. The respondent has raised a preliminary objection that no appeal lies. His contention is that Section 102, Civil P.C., is a bar as the suit is of the nature cognizable by the Court of Small Causes, etc., below the value of Rs. 500. Admittedly the suit is below the value of Rs. 500 and the only question then to be decided is whether the present suit is a suit of the nature cognizable by a Court of Small Causes. Section 15, Small Cause Courts Act, provides that a Court of Small Causes shall not take cognizance of the suits specified in Schedule 2 of the Act and that all other suits of which the value shall not exceed Rs. 500 shall be cognizable by such Courts.

3. A suit for contribution is ordinarily cognizable by a Small Cause Court. The suits for contribution over which the Small Cause Court has no jurisdiction are those specified in Articles 41 and 42, Schedule 2, or possibly under Article 44. Bisva Nath Shah v. Naba Kumar Chowdhury [1888] 15 Cal. 713. The present suit does not, as far as I can see, fall under Article 41.

4. These persons, plaintiff and defendants, are not cosharers in a joint property. They are specific owners of specific portions having purchased them at various times from defendant 8. Neither does it fall under Article 42 for none of these persons were mortgagors and the money was not paid by one of several joint mortgagors for redemption of the mortgaged property. It has not been contended that it falls under Article 44. It has been urged that it is a suit for the determination or enforcement of a charge on immovable property and so falls under Article 11. The argument is this that the plaintiff having paid up the whole of the mortgage decree and so saved the property from sale has acquired a charge on the properties which he has saved from sale for the amount due from the other owners of the property.

5. 'Charge' is defined in Section 100, T.P. Act, in the following words:

Where immovable 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....

6. It is perhaps difficult to see how the present case can fall within this definition of a charge. Reliance has however been placed on the case of Dhaheswar Prosad Singh v. Harihar Prosad Narain Singh [1915] 21 C.L.J. 104, for holding that the purchaser of one of two properties mortgaged satisfying the mortgage decree has a charge for such sum as the purchasers of the other properties be called upon to contribute. In that decision Mukherji, J. seems to have applied the principles of Section 95, T.P. Act, to the case of purchasers of the mortgaged property. Assuming, without admitting, the correctness of this decision it still remains to be seen whether the present case falls within Art 11, Schedule 2, Small Cause Courts Act. It does not follow that because a person has a right to contribution from another person that he has necessarily a charge over some property in that person's possession.

7. Therefore, a suit for contribution is not necessarily a suit for the enforcement of a charge. The plaintiff may well be content with merely a personal decree against the defendants without desiring to enforce his remedy by a declaration that he has a charge on soma specific property of the defendant against which he desires to enforce his remedy. The mere fact that the plaintiff might perhaps have framed his suit as one for a declaration of a charge on the part of the mortgaged property in the hands of the defendant with all the necessary formalities of such a suit under Order 34 does not make a suit, which is clearly simply one for contribution without a declaration that he had any charge on any property, one for the enforcement of a charge.

8. A party may have a debt secured by a mortgage. He may be content to bring a simple suit for the money lent without relying on his mortgage. The fact that he concluded his plaint by asking for any other relief to which he might be entitled would not convert his suit into a mortgage suit. In considering whether the plaintiff's suit falls within Article 11 we must, therefore, look at the suit itself and see what it really was, not what it might have been. As far as lean see from the plaint it was simply a suit for contribution, only for money paid on behalf of another person. The plaintiff did not ask that his charge on the property should be declared and neither does the decree give him any charge on the properties. It is a simple decree for money. The plaintiff's suit does not fall within Article 11, Schedule 2, per Small Cause Courts Act.

9. It clearly comes within the purview of Section 102 and no second appeal lies.

10. The result is the appeal stands dismissed with costs.

Mukherji, J.

11. I regret I take a different view.

12. This appeal arises out of a suit for contribution. One Joy Jana mortgaged some lands in favour of one Baidyanath Shit. He then sold parts of the lands to the plaintiff, defendants 1 and 2, defendant 3 and defendants 4 to 6 in separate parcels. Shit instituted a suit on the mortgage making all these transferees parties thereto, obtained a decree and put up the lands to sale in execution thereof. The plaintiff paid off the mortgage debt due on the decree to avert the sale, and then instituted the present suit, claiming contribution of separate amounts representing the proportionate shares of the aforesaid three sets of defendants.

13. The three sets of defendants contested the suit separately; They conceded their liability to contribute, but disputed the amounts claimed.

14. The Munsif held that the defendants 1 and 2 were liable for Rs. 33-8-0 and the defendant 3 for Rs. 16-12 and defendants 4 to 6 for Rs. 18-3-6. He passed a decree in plaintiff's favour for the said amounts together with interest for three years at the rate of 3 pies per rupee per month and costs in proportion.

15. This decree was appealed from only by defendants 1 and 2. The Subordinate Judge was able to find reasons for dismissing the entire suit, and he did so with costs and interest. His grounds for dismissal of the suit were 1st that the suit was barred by limitation; 2nd that one Akhil who was in possession of a portion of the lands was not made a party to the suit, and 3rd that the liability of the defendants was ascertained by the trial Court in a way not supported by the evidence, or that the plaintiff had not placed sufficient evidence before the Court to arrive at a satisfactory conclusion.

16. In the appeal before the lower appellate Court defendants 1 and 2 were the appellants and the plaintiff the only respondent. In the appeal here, the plaintiff is the appellant and defendants 1 and 2 the only respondents. Notwithstanding the wide words of Order 41, Rule 33, which rule has always been advised to be cautiously used, I do not think that the Subordinate Judge was at all competent in a case where the decree passed by the trial Court was not really one decree but a combination of three several decrees against three sets of defendants to interfere with the whole decree as he has done, the more so as two of those sets, namely, defendant 3 and defendants 4 to 6 were not parties to the appeal before him. But with the dismissal of the suit as against these two sets of defendants I am not concerned here, as, however erroneous the same may have been, they have not been made parties to the appeal here and I do not see how the said dismissal which is in their favour can be disturbed in their absence. The only matter that need be considered, therefore, is the portion of the plaintiff's claim as against defendants 1 and 2.

17. These defendants, as respondents to this appeal, have challenged its competency on the ground that the appeal is barred by reason of the provisions of Section 102, Civil P.C. This objection is sought to be met by reference to Articles 11, 41 and 42, of Schedule 2, Provincial Small Cause Courts Act. On mature consideration I have come to the conclusion that Article 11 will not help the appellant. It is true that if the plaintiff's allegations are established, he would perhaps be entitled in equity to get against the defendants a declaration of a charge on the lands that may belong to them, separately as against the three sets and for the amounts at which their respective liabilities are assessed. When the act in respect of the doing of which compensation is sought consists in paying off an existing charge or mortgage debt the Courts have never found any difficulty in allowing the person making the payment to stand in the shoes of the mortgagee and in giving him a charge on the property. Oases of this kind are numerous and I give only a few : Ram Tuhul Singh v. Biseswar Lal Sahoo [1874] 2 I.A. 131, Gokaldas Gopaldas v. Puranmal Premsukh Das [1884] 10 Cal. 1035, Bhagwati Prasad v. Radha Kishen [1893] 15 All. 304, Rajah of Vizianagram v. Raja Setrucherla Somasekararaz [1903] 26 Mad. 686, per Benson and Bhashyam Ayyangar, JJ., Chama Swami v. Padala Anande [1908] 31 Mad. 439, and Tangya Fala v. Trimbak Daga [1916] 40 Bom. 646. But although there is the general prayer in the plaint asking for such other or further reliefs as the Court may in justice and equity consider the plaintiff to be entitled to, the suit as framed is a suit for money. To bring the suit within Article 11, it must be one brought expressly for the determination or enforcement of a right to, or interest in immovable property. It is not possible to construe the plaint as a plaint made for that purpose; and I do not, therefore, think that this article can help the plaintiff. Article 41, so far as it is relevant runs in these words:

A suit for contribution by a sharer in joint property in respect of a payment made by him of money due from a cosharer.

18. At first sight it might seem that the plaintiff and the three sets of defendants being separately in possession of separate parcels of land the article would have no application. This view, however, in my opinion is not right. A common liability is the essence of a right of contribution, and an action for contribution is a suit brought by one of several parties who has discharged a liability common to all of them to compel the others to make good their shares : e.g., if A and B are jointly liable for a sum of money and A alone satisfies the whole debt, he is entitled to call upon B to contribute to the extent of his proportionate share, and conversely, if B alone pays the whole debt, he is entitled to call upon A to contribute in similar proportion. The words 'sharer' and 'joint property,' in my opinion, are to be understood with reference to this common liability that has been discharged and not in the sense of an 'undivided share in the property' and 'property in which the sharers are undivided.' The plaintiff and the three sets of defendants were, it is true, owners of separate parcels in the lands, but the mortgage was one and for the purpose of the decree which was satisfied their liability was common to all of them. The mortgagee decree-holder would not take any notice of this division. The parties, therefore, were all sharers in the lands and the lands taken as a whole were joint-amongst them; it is difficult to see how else their interest can be described looked at in view of the character of the payment that was made. It is not the rights-of the parties inter se which, in my opinion, determine the question. The view I take receives support from the decision in Fatima Bibi v. Hamida Bibi [1915] 13 A.L.J. 452 where in respect of parties who had divided the lands of a tenancy amongst themselves, and one of them discharged the rent of the tenancy, and then instituted a suit against the other for recovery of the proportionate share of the latter it was said that as regards the zamindar they were still joint. The same may be said of the parties in this case as regards the mortgage-decree-holder, because the transfers made by the original mortgagor, so far as against the mortgagee created only a joint interest in the lands. The view that some Courts have taken, namely, that when a decree has been passed on the basis of a joint liability under a mortgage the rights of the co-mortgagors merge in the decree and Article 41 would not, therefore, apply to co-judgment debtors has never been recognized by this Court. I am, therefore, of opinion that. the suit was excepted by Article 41. I am also of opinion that the case is covered by Article 42. The mortgage was one and indivisible and the plaintiff and the three sets of defendants are in the position of co-mortgagors. Article 42 says:

A suit by one of several joint mortgagors of immovable property for contribution in respect of money paid by him for the redemption of the mortgaged property.

19. In a suit for contribution instituted by one of two joint mortgagors, a decree was obtained against them for sale of the mortgaged property, and one of them paid off the decree to save the property from, sale, and then sued the other for contribution. It was held that the suit in substance was one falling under Article 42, as-the effect of the payment was to redeem the property from the mortgage under which it was ordered to be sold : Talaimand Singh v. Gobind Singh [1915] 13 A.L.J. 694. I entirely agree in the principle of this decision which I think applies fully to the present case. A purchaser who redeems the mortgage is in the same position as if he were a joint mortgagor and the fact that a decree had been obtained on the mortgage is also immaterial because the decree on the mortgage does not extinguish the security though the security may be merged in the decree. Dhakeswar Prosad v. Harihar Prosad [1915] 21 C.L.J. 104. For those reasons I am of opinion that the preliminary objection must be overruled.

20. To turn now to the merits of the appeal; of the three grounds on which the judgment of the Subordinate Judge proceeds, the first relates to the question of limitation. The last day for filing the plaint was the 16th July 1923, which was a holiday. The plaint was filed on 17th July 1923, on which date the Court allowed five days time to put in the deficit Court-fees. The deficit Court-fees were paid on 22nd July 1923. The Subordinate Judge held that the five days expired on the 21st and that in computing the five days 16th was to be taken into account. This view is unsupportable and indeed the respondent declines to justify it. The second ground relates to the omission on the part of the plaintiff to implead one Akhil as a defendant. Akhil, however, is in possession of a part of the plot which belongs to defendants 4 to 6 and has no concern with the portion belonging to defendants 1 and 2. The Subordinate Judge says:

In order to avoid multiplicity of suits the man ought to have been made a party to this suit

and in this he is right. He says further that the defect is fatal; but why this should be so I fail to understand. He seems to have overlooked the distinction between proper and necessary parties to an action. It is quite open to the plaintiff not to proceed against Akhil Seal, and if Akhil is not a party to the suit any decision therein will not affect him, but I do not understand why the proportionate liability of defendants 1 and 2 could not be determined in Akhil Seal's absence so long as the necessary materials are before the Court. As regards the third ground: the Subordinate Judge seems to be of opinion that as the plaintiff has not been able to give satisfactory evidence as regards the values of the paddy lands and dhosa lands, as they were in 1305, the date of the mortgage, the proportionate liabilities of the different parties cannot be calculated and so the plaintiff's suit must fail for want of evidence. The mode of calculation adopted by the Munsif, it is true, is not right and it is also true that the values as in 1305 have to be ascertained, but it is obvious that direct evidence thereof it is impossible to give and unreasonable to expect. There is some evidence on the plaintiff's side as well as on the side of the defendants from which the relative value of the paddy lands and dhosa lands at the present time may be arrived at, and this relative value of to-day would perhaps, in the absence of anything to the contrary, represent the relative value in 1305, or, it may be that some allowance will have to be made to ascertain the relative value in 1305. It is only this relative value that is necessary to enable one to determine the proportionate liabilities of the parties. In dealing with this matter I cannot help thinking that the Subordinate Judge has not made a reasonable attempt to arrive at a decision and has set up for his guidance much too exacting a standard. None of the grounds, therefore, upon which the Subordinate Judge has thought fit to dismiss the suit is sound.

21. The appeal, therefore, in my opinion should be allowed, the decree of the Subordinate Judge dismissing the suit as against defendants 1 and 2 should be set aside and the case should go back to the lower appellate Court so that the appeal of the said defendants may now be reheard and disposed of in the light of the observations contained in this judgment. The costs of this appeal will abide the result.

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