1. After carefully considering the arguments addressed to us in this case, I retain the opinion which I expressed in Enayet Hossein alias Dhunnoo Mea v. Muddunmoonee Shahoon 14. B.L.R. 155. In the majority of cases as observed in that decision, a contrary view would result in injustice. Generally a co-sharer defaults to pay his quota of Government revenue when he is in insolvent circumstances. In these cases a mere personal decree against the defaulting co-sharer would be useless. On the other hand, if the principle laid down in that case be adopted, I cannot conceive of any instance in which injustice is likely to be done to any party. In cases not governed by any particular legislative enactment, Courts in this country are directed by the Legislature to act according to justice, equity and good conscience. It seems to me that if in this case we give effect to a principle which prevents injustice in many cases and in no conceivable case operates unjustly, which has been acted upon for more than 12 years and which had been adopted by the Legislature in cognate subjects, we shall be strictly following the direction of the Legislature referred to above. In Enayet Hossein v. Muddunmoonee Shahoon 14 B.L.R. 155, Mr. Justice Markby and myself to a great extent relied upon a dictum of the Judicial Committee of the Privy Council in Nogender Chunder Ghose v. Kamini Dasi 11 M.I.A. 258. It has been suggested that that dictum was intended to be applicable to payment of Government revenue by a mortgagee only. It is true that in that particular case the payment of revenue was made by a mortgagee, but it seems to me that the dictum was laid down in terms wide enough to include any person who is interested in making it. If it was intended to be applicable to payment of government revenue by a mortgagee only, I imagine it was also intended not to give to the mortgagee in respect of this payment? any right superior to that which be has under the mortgage. Thus if a second mortgagee makes the payment, he would not be entitled to priority over the first mortgagee in respect of such payment. But that that was not intended is clear from the express language of the dictum. It says: 'Considering that the payment of the revenue by the mortgagee will prevent the taluk from being sold, their Lordships would, if that were the sole question for their consideration, find it difficult to come to any other conclusion than that the person who had such an interest in the taluk as entitled him to pay the revenue due to the Government and did actually pay it, was thereby entitled to a charge on the taluk as against all persons interested there in for the amount of the money so paid.' According to this dictum, therefore, a person, who makes the payment under the circumstances mentioned there, is entitled to a charge for the money paid ' as against all persons interested therein.' It follows, therefore, that if a second mortgagee makes the payment, he would be entitled to a charge for the money paid by him as against the first mortgagee. This is exactly the principle upon which certain Irish cases, to which I shall refer hereafter, have been decided. Then, again, in describing the class of persons who would be entitled to a charge by payment of Government revenue, their Lordships used the expression: 'That the person who had such an interest in the taluk as entitled him to pay the revenue, &c.;' This description is wide enough to include all persons interested in making the payment. The judgment of the Judicial Committee was delivered by Lord Romilly, then Master of the Rolls, and it has been said that his Lordship, in deciding cases in his own Court, has disapproved of the doctrine which it is contended has been laid down by the dictum in question. But no English case has been cited before us showing that he entertained a different opinion. It seems to me that in holding that a person who is interested in protecting the property by payment of Government revenue is entitled to a charge by making the payment 'as against all persons interested therein,' his Lordship has put it on the principle of a salvage lion. The Legislature in this country has also adopted this principle in the last two Beneal Tenancy Acts. It was for the first time recognized in Reg. VIII of 1819, Section 13, which enacts that money advanced by an under-tenant to protect the superior putni taluk from sale 'shall be considered as a loan made to the proprietor of the tenure preserved from sale by such means (i.e., by payment), and the taluk so preserved shall be the security to the person or persons making the advance, who shall be considered to have a lien thereupon in the same manner as if the loan had been made upon mortgage.' In the sale law of 1845, a personal remedy was given to persons who are not co-sharers, and who are interested to pay the revenue to protect their interest. In the sale law of 1859, the same provision was made with this addition, that in the case of a holder of a lien the amount paid by him 'shall be added to the amount of the original lien.' In the Rent Act of 1869, Section 62 extends the provisions of Section 13 of Reg. VIII of 1819, cited above, to payments made by non-defaulting under-tenants to save the superior tenure from sale. The last enactment on this subject is contained in Section 171 of the Bengal Tenancy Act, 1885, which provides that the amount paid in order to prevent the sale of a tenure or holding by a person having an interest in it, which interest would be voidable upon the sale thereof, 'shall be deemed to be a debt bearing interest at 12 per centum per annum, and secured by a mortgage of the tenure or holding to him.' It further provides that this 'mortgage shall take priority of every other charge on the tenure or holding other than a charge for arrears of rent.' It was contended before us that the sale laws of 1845 and 1859 giving only a personal remedy, the intention of the Legislature was that an owner of a fractional share of a zemindari should not be deemed to have acquired a charge upon the remaining share for saving the whole zemindari by the payment of Government revenue. Adopting this argument the Sudder Dewany Adawlut in Gobindpersaud Pundit v. Mussummat Soonduri Kunvmr Debia S.D.A. (1856) 867, and the High Court in Fagan v. Sreemotee Dasi Marsh. 266 decided against the existence of this lien. The decision of the Judicial Committee in Nogenderchunder Ghose v. Srimati Kamini Dasi 11 M.I.A. 258, cited above, was passed in appeal against this latter judgment of the High Court. Having regard to the dictum laid down by the Judicial Committee and extracted above, it is clear that their Lordships did not approve of this argument. They observe: 'This section (i.e., the section in the sale law of 1845 bearing upon this subject) clearly authorizes the personal action, but it gives no remedy against the land which it leaves to the then existing law.'
2. In passing I may remark that the two cases from the Sudder decisions of 1850 and 1852, referred to in the course of the argument, have no direct bearing upon the question under our consideration. This was the state of the case-law on the subject when Enayet Hassein v. Muddunmoonee Shahoon 14 B.L.R. 155 was decided. The principle laid down in this decision was acted upon in Nobin Chundet Roy v. Rup Lall Dass 9 C. 877, decided by McDonell and Field, JJ., in Ram butt Singh v. Horakh Narain Singh 6 C. 549 : 8 C.L.R. 209 decided by Maclean, J., and myself, in Mohesh Chunder Banerji v. Ram Prasuno Chowdhry 6 C. 549, decided by Jackson and Tottenham, JJ., and in Deo Nundun Agha v. Deshputty Singh 8 C.L.R. 210 note, decided by Jackson and White, JJ. At first sight the case of Mohesh Chunder Banerji v. Ram Prosunno Chowdhry 6 C.L.R 28 does not seem to touch the question under our consideration; but on a closer analysis of the judgment, it would appear that it not only affirms the principle in Enayet Hossein's case, but goes further, though in the same direction. The facts of that case are these. The plaintiffs, appellants, were the holders of a bond executed by defendants Nos. 1 and 17, in which a putni taluk was hypothecated as a security for the loan. The taluk belonged to the defendants Nos. 1 to 40. On the 13th of May, 1875, i.e., on a date subsequent to the bond, the putnidars made default to pay rent to the zemindars. The taluk was advertized for sale under Reg. VIII of 1819. The plaintiffs, in order to protect their interests as mortgagees, paid the rent. In May, 1876, Messrs. Gisborne & Co., who were also made defendants, are alleged to have deposited a certain amount of money in order to save the taluk from being sold in execution of a decree in a suit brought by the zemindars against the putnidars. They were assignees of a durputni interest in the taluk. The plaintiffs sought to recover the sum advanced under the bond, as well as the sum advanced by them to protect the putni from sale. The lower Court decreed the claim covered by the bond against the defendants Nos. 1 to 4, 17, 18, 19 and 22, i.e., against persons who signed and made the bond, and those, who being co-parceners in the property mortgaged, by their presence and acquiescence were held to have taken part in the transaction. As to the rest of the claim, the lower Court held that the payments were voluntary, and that the plaintiffs acquired no charge upon the putni taluk in respect of them. In appeal to this Court by the plaintiffs it was contended on behalf of Messrs. Gisborne & Co., respondents, that the payment made by them being the last payment made for the purpose of saving the taluk, was entitled to priority on the principle applicable to bottomry bonds. This Court held that the decree regarding the claim covered by the bond was right; but the learned Judges were of opinion that the payments made by the plaintiffs to protect the sale of this land under the putni sale law were not voluntary payments, but constituted a good charge on this property, and it makes no difference for this purpose whether the suit upon the bond is followed by a decree as against all the defendants sued or against a part of them. They further directed an enquiry into the claim put forward by Messrs. Gisborne & Co. Now it seems to me that, in declaring the payments made to save the putni as a charge upon the whole taluk and not only upon that portion which was found to have been mortgaged, the learned Judges affirmed the principle laid down in Enayet Hossein's case, and in directing an enquiry into the claim of Messrs. Gisborne & Co., they went farther in the same direction by indicating their inclination of opinion that the rights of the parties claiming such a charge should be regulated by the principle of salvage lien. Unless that was the inclination of their opinion, it would have been unnecessary to direct a further enquiry into the claim of Messrs. Gisborne & Co., because that claim consisted of payments made subsequent co those made by the plaintiffs. The learned Judges were evidently inclined to the opinion that the payment alleged to have been made by Messrs. Gisborne & Co., thougn made last in point of date, should be deemed to have priority over the earlier payments made by the plaintiffs. Referring to these cases, Sir Charles Sargent, Chief Justice, and Mr. Justice Birdwood, in Achut Ram Chundra Pal v. Hari Kunti 11 B. 313, said: 'We think the Calcutta decisions to which we have referred as recognizing a charge in those eases in which the assessment is paid by a part-owner to save the estate, are in accordance with equity, justice, and good conscience, and should be followed in this country.' The only case in which a doubt has been expressed as to the existence of any such charge as that contended for is Kristo Mohinee Dasi v. Kaliprosono Ghose 8 C. 4C2. But that case was decided upon other points which rendered it unnecessary to decide the question under our consideration. Mr. Justice Pontifex in delivering his judgment says : 'Had it been necessary to deal with this question, we would certainly have referred it to a Full Bench, for we are not, as at present advised, at all satisfied as to the correctness of those decisions. They no doubt enunciate what at the first blush seems to be an attractive and catching equity, but it is difficult to see on what foundation such an equity could rest. Mr. Pugh has attempted to support the cases referred to, on the authority of certain Irish oases which are treated as insurance eases. It is sufficient with respect to those cases to say that there is a substantial difference between them and the present case. In all of those cases the person who claimed the lien was previously interested in the estate which his payment went to save. But in the present case A had no interest in B's share of the share originally held by A and B, and it may be remarked that none of the Irish cases go the length of establishing a personal liability.' If what is enunciated in those cases at the first blush seems to be an attractive and catching equity, then, unless it is shown that in some cases it results in injustice, there would be no substantial ground for rejecting it after it has been acted upon in our Courts for several years. If it had been simply an attractive and catching equity, the Legislature in this country would not have adopted it in the recent; Bengal Tenancy Act, 1885. I shall show hereafter that there is no substantial difference between the Irish cases referred to above and the present case. In order to give rise to the equity it is not necessary that A should have an interest in B's share, but it would be sufficient, as held by their Lordships of the Judicial Committee in Nogender Chunder Ghose's case, if A has such an interest in the taluk owned by him and B as would entitle A to pay the revenue due to the Government. The foundation for such an equity is, as I have already stated, that if it be not acted upon it would result in injustice in many cases, and its adoption does not operate unjustly in any conceivable case. This appears to me to be a sufficient foundation for it, especially when the Legislature in this country has approved of it and enunciated it in Section 171 of the Bengal Tenancy Act, 1885. It would be only reasonable to suppose that if it were not well founded, it would not have been adopted by the Legislature in the analogous case of payment of rent.
3. In the reference order it is stated that English Courts of Equity do not seem to act upon such a rule as was laid down in Enayet Hossein's case, and in support of this proposition Ex parte Young 2 v. and B. 242, and Kay v. Johnston, 21 Beav. 536 have been referred to. In Ex parte Young the facts were these: Two of the part-owners of a ship became bankrupts and their share in the ship was sold by the assignee. Young for himself and other part-owners applied out of these sale-proceeds for a liquidated amount due to them by the bankrupts, who were the managing owners, for freight and earnings after deducting expenses on an account being taken. This application was based upon the contention that the part-owners of: a ship, though tenants in common, are entitled to consider it as a chattel used in the partnership and as liable to be dealt with as partnership effects. This contention was overruled. It seems to ma that this decision does not touch the question under our consideration. In Kay v. Johnston 21 Beav. 536, the plaintiff and the defendants were joint-owners and in joint-occupation of a house. The plaintiff advanced to the defendants some money which was spent in the house in decorations and improvements. It was decided that the plaintiff was not entitled to a lien on the share of the defendant, in respect of money which was originally his, but was advanced to the defendant and laid out by him in the decorations and improvements of the house. This case is distinguishable from the present ca3e. Here the plaintiff was not compelled to pay any money for the protection of his interest in the house. It was paid quite voluntarily to improve the house. Such voluntary payment could not reasonably be held fro be a charge on the house. These are the only two cases referred to in the course of the argument in order to establish that English Courts of Equity have refused to act upon the principle laid down in Enayet Hossein's case. But it seems to me that they do not conflict with it. On the other hand, there are English and Irish cases which lend considerable support to the decision in Enayet Hossein's case. In Hibbert v. Coke I.S. and Section 522 a tenant for life of real estates, under a Will spent money in finishing a mansion house which the testator had left unfinished. In a suit for administering the trusts of the Will, the Court directed an enquiry whether it was for the benefit of all parties interested that the mansion house should be finished, and said if it was found for the benefit of all parties interested that the mansion house should have been finished, and there was no personal estate applicable, the expense should be a charge upon the real estates. In Shearman v. British Empire Mutual Life Assurance Company L.R. 14 Eq. 4, it was held that the premiums paid by a mortgagor of a policy of insurance after he became bankrupt were in the nature of salvage money, and ought to be repaid with interest at Rs. 4 per cent, out of the money covered by the policy. In Kehoe v. Hales 5 Ir. Eq. 597, an encumbrancer agreed to advance a sum of money to preserve the lands of K from eviction for non-payment of rent, and took a security by deed affecting the lands of K and other lands for the repayment of the money so to be advanced. She afterwards paid the rent and redeemed the lands of K. It was held that under the circumstances she was entitled, as against a person who was an encumbrancer on the lands at the time when they were redeemed, to be paid the sum advanced in priority; and that as full effect could not be given to her security by deed she was remitted to erlien. In Feather-stone v. Mitchell 11 Ir. Eq. 35, the plaintiff, a decree-holder, while the property of the judgment-debtor was in the hands of a receiver for satisfaction of his decree, made advances for payment of the head-rent with the sanction of the Court and thereby saved the property. It was found for some reasons, which it is not material to state here, that he was not entitled as decree-holder to sell the property during the life-time of the debtor. It was held that as a salvager, though not as a decree-holder, he was entitled to sell the property and realize his salvage advances from the proceeds of the sale. In Locke v. Evans II Ir. Eq. 52, a sub-tenant who had redeemed his landlord's interest by advances for head-rent, filed a bill for the sale of that interest, and subsequently made further advances for the same purpose. It was held that these several advances constituted the first charge on the landlord's interest in priority to incumbrances prior in date, and that the salvager was entitled to a sale for payment. In Hamilton v. Denny 1 Ball and Beatty 199, a lease was granted to A and B as joint tenants. B's moiety of the property had been settled by him. A payment of the renewal fines made by A was held to be a charge upon B's settled share. In the matter of Tharp 2 Sm. & Giff. 579 Lord St. Leonards, referring to these Irish cases, said: 'In Ireland it is a very common equity to have as a prior charge to all other encumbrances what is called salvage money : where a lease-hold estate, or an estate held for lives to which half a dozen people are entitled in succession, many of them being mortgagees according to certain priorities, the last man of all who is entitled after everybody being in possession redeems, I may say, the estate by paying the landlord, who otherwise would have recovered the estate and taken it from everybody; this payment is what is called salvage money. That is an established equity and a very proper equity. He that pays the salvage has a prior encumbrance to every other charge and interest, because, so far as any interest is left to anybody beyond a charge, it is acquired by that payment in the shape of redemption money.' Mr. Msher, the author of a well-known treatise on the Law of Mortgage, says in his recent edition 'that the lien is also allowed in respect of advances in the nature of salvage, namely, such as are made for the redemption of property for renewal fines or other payments made by way of salvage; and then whether he who pays the money fills the character of a trustee, joint tenant, tenant for life, or mortgagee or other creditor, and even though if be claimed to be a creditor his debt is disputed, he has a lien on the estate or interest of the person for whose benefit the payment was made in the property discharged,' paragraph 216. The learned author cites several cases in support of his opinion. He cites also a recent case, namely, Leslie v. French L.R. 23 Ch. Div. 564, which to a certain extent conflicts with his opinion. In this last mentioned case there is this peculiar feature, that the person who paid the money in the nature of, salvage had a prospect of becoming the sole owner of the property saved by right of survivorship. Conceding, however, that this case is against the contention in favour of the existence of a lien, yet there is, as I have shown above, a strong array of authorities in support of it. On the whole I am of opinion that the question referred to us should be answered in the affirmative. I may notice, however, that there is another question which calls for decision in these cases, namely, whether a bona fide purchaser for value without notice would be affected by a charge of this kind if it exists. I am inclined to answer this question in the negative, but as it has not been referred to us, I do not think it necessary to say anything more upon it.
4. I concur in the judgment just delivered by my brother Mitter. I express no opinion upon the question whether a bona fide purchaser for value without notice would be affected by a charge of this kind.
5. The question we are asked is, whether a part-owner of an estate who pays the whole Government revenue, thereby obtains a charge upon the share of his co-owner to the extent of the latter's share of the revenue. There is no statutory provision giving such a charge; if it exists, it must be by virtue of a broad principle of equity. It is clear, I think, that there can be no difference between the right of a part-owner and that of a tenure-holder, or other person having an interest in the estate; and it is clear, I think, that there can be no difference between one who pays Government revenue, and one who makes any other payment necessary to save the estate. And the contention before us has been in favour of the broad proposition that a payment of Government revenue, or any other payment necessary to save the estate, if made by one having an interest which would be sacrificed by the loss of the estate, gives a charge on the estate for the money paid. We have to say whether any such rule of equity is in force in this country.
6. In England it is, I think, now settled that no such general rule exists. A mortgagee, if he has to make payments necessary for the preservation of the mortgaged property, or even in some cases for its improvement, may add them to the amount covered by his security. There are some other special cases, such as that of trustees, in which a like lien may arise apart from contract. But even in the case of a mortgagee the right conceded by English law is a very different one from that now contended for : according to the English doctrine, as I understand it, the mortgagee of an undivided share of an estate who paid the whole revenue to save his lien might add the amount to his charge, thus increasing the extent of his lien on the share of his own mortgagor, whereas by the doctrine now contended for he also acquires a new lien upon the shares of the other part-owners; and, except in the ease of a mortgagee and the few other excepted cases, payments of the kind in question give rise to no charge. I do not think it necessary to examine the English authorities at large, for that has bean done and the law explained by Fry, L.J., in In re Leslie L.R. 23 Ch. Div. 552, and by the Court of Appeal in Falcke v. Scottish Imperial Insurance Go. L.R. 34 Oh. Div. 234. In the latter of these cases the doctrine of what has been called salvage lien, acted upon in some Irish cases, is I think authoritatively rejected.
7. In this country it has long been well settled that one part-owner, paying the whole Government revenue, may sue his co-owner for contribution, though the precise process of reasoning by which the conclusion should be arrived at was not always very satisfactorily stated. The matter was explained in the judgment of a Full Bench of this Court delivered by Peacock, G.J., Ram Buksh Chittangeo v. Modhusudan Pal Chowdhry B.L.R. Sup. Vol. 675 : 7 W.R. 377. But it was settled law in the Court of Sudder Dewany that the right of the part-owner in such a case was limited to a personal suit for contribution and carried no charge on the estate. In Andrew v. Harris S.D.A. (1852) 697, it was held that a part-owner of an estate could not recover from his co-owner arrears of Government revenue which accrued due before the latter acquired his share, whereas if the doctrine contended for were true, he could do so to the extent of the value of his share. In Sone Kolee Kunwar v. Sheik Ezhar Hosscin S.D.A. (1855) 44 the same thing was again held. In Gobindpershad Pundit v. Soonduri Kunwar Debia S.D.A. (1856) 867, it was held that a tenure-holder who paid Government revenue had no preferential lien on the zemindari. In Manik Mulla Chowdhrain v. Parbuttee Chowdhrain S.D.A. (1859) 515, the same Court in explaining that the case before it fell under a different principle said: 'We have always held that the decree for contribution which a proprietor in an ijmali estate obtains against his co-proprietors is a personal decree, in the sense that it conveyed no lien on the estate binding against third parties, such as would have been derived from a decree under Section 13, Reguation VIII of 1819.'
8. In 1867 the case of Nogender Chunder Ghose v. Kamini Dosi 11 M.I.A. 244 came before the Privy Council. The circumstances of the case were somewhat complicated, and it is unnecessary to examine them for the present purpose; it is enough to say that before the Judicial Committee it was argued that the appellant, the representative of a mortgagee, was entitled as against the respondent, the representative of the mortgagor, to a lien upon the mortgaged property for Government revenue paid to save the estate. What was actually decided was that, as the suit was framed, the question could not be raised in that suit. But at page 258 of the report we find it said: 'Considering that the payment of the revenue by the mortgagee will prevent the taluk from being sold, their Lordships would, if that were the sole question for their consideration, find it difficult to come to any other conclusion than that the person who had such an interest in the taluk as entitled him to pay the revenue due to the Government, and did actually pay it, was thereby entitled to a charge on the taluk as against all persons interested therein for the amount of the money so paid.' This dictum of the Privy Council has not the weight of a decision, but it is of course entitled to the most careful consideration. In applying it the first thing obviously is to ascertain the precise meaning of the observation. And upon the best consideration I have been able to give to the subject I do not think we should be justified in applying the dictum of their Lordships to any case except one similar to the case before them, which was the case of a mortgagee. I think so first, because of the context in which the words I have cited occur. The learned Counsel, who argued the case for the appellant, according to the report, stated the question which he asked the Judicial Committee to answer in the affirmative as follows: 'Whether the heir of the mortgagee paying arrears of Government revenue to save the estate from sale for arrears which the mortgagor's widow allowed it to fall into, is not entitled under Act No. I of 1845, Section 9, to a lien or charge on the mortgaged estate.' The dictum of their Lordships, which I have already cited, occurs on page 258 of the report. On the next page, and in almost the next sentence, it is said: 'There were two courses open to her (the plaintiff); she might have instituted a suit to enforce the mortgage and to tack to the mortgage the amount of the revenue paid by her to save the estate, and to have the estate sold to pay that amount, or she might have proceeded under the ninth section of Act No. I of 1845.' Thus an examination of the report of the case tends in my judgment to show that the observation of the Judicial Committee ought to be understood as applicable to a case such as the one before it, the case of the mortgagee. I am led to the same conclusion by another consideration. Two of the decisions of the Court of Sudder Dewany on the subject in question were cited before the Privy Council. And to my mind it seems improbable that their Lordships can have intended by a dictum, in a case argued only on one side, and without assigning any reasons, to overrule, or suggest the propriety of overruling, a current of decisions of the Court of Sudder Dewany, and introduce a rule of equity so broad as that in support of which their words have been cited.
9. Since that decision of the Privy Council this matter has on several occasions come before this Court. In Enayet Hossein v. Muddunmoonee Shahoon 14 B.L.R. 155, one of the sharers of an estate sued the persons interested in the other shares and asked, amongst other things, to have it declared that Government revenue, which he had paid in respect of the defendants' shares and to save the estate, was a charge on these shares. Makby and Mitter, JJ., held that it was so charged. Those learned Judges based their decision mainly upon the dictum of the Judicial Committee which I have cited. I have already given my reasons for thinking that that dictum is not applicable to such a case. In Bam Dutt Singh v. Horakh Narain Singh 6 C. 549 : 8 C.L.R. 209, Mitter and Maclean, JJ., applied the same rule in a case in which the plaintiff, who held one mouzah of a revenue-paying estate under a ticca lease and by bai-bil-wafa, sued the owner of another mouzah of the same estate in respect of revenue that he had paid. The decision carried the matter somewhat further than the former decision had done. But I have no hesitation in thinking that it did so rightly if the former decision was right, for I can see no distinction between the two cases. In Mohesh Chunder Banerji v. Ram Prosono Ghowdhry 4 C. 539, a similar charge was allowed, but that was the case of a mortgagee, and I cannot say positively from the report whether a lien was given on anything more than the subject-matter of the mortgage. In Kristo Mohini Dasi v. Kali Prosunno Ghose 8 C. 402, Garth, C.J., and Pontifex, J. expressed strongly their dissent from the view taken by this Court on the matter in question, but it was not necessary in that case to arrive at any decision. In Nobin Chunder Roy v. Rup Lall Das 9 C. 377, Mcdonell and Field, JJ., followed the decision in Enayet Hossein v. Muddunmoonee Shahoon; the opinions of Garth, C.J., and Pontifex, J., in the case just mentioned, do not appear to have been referred to. In a very recent case in the Bombay High Court which has appeared since the argument of this case, Achul Ram Chunder Pai v. Hari Kamti 11 B. 313, Sargent, C.J., and Birdwood, J., expressed their concurrence in the same view, but the point was not strictly necessary for the decision of the case, for on the facts the learned Judges held that no such rule as that in question found place.
10. Although there is no statutory enactment directly affecting the precise case now before us, which is that of a part-owner, there are some enactments which have, I think, a material bearing upon the existence of the general principle of equity contended for. In Regulation VIII of 1819, the Putni Regulation, Section 13, it is enacted that if a putni taluk is about to be sold for non-payment of the rent due to the zemindar, any of the talukdars of the second degree may pay the amount and stop the sale. And 'if the person or persons making such a deposit in order to stay the sale of the superior tenure shall have already paid the whole of the rent due from himself or themselves, so that the amount lodged is an advance from private funds, and not a disbursement on account of the said rent, such deposit shall be considered as a loan made to the proprietor of the tenure preserved from sale by such means, and the taluk so preserved shall be the security to the person or persons making the advance, who shall be considered to have a lien thereupon in the same manner as if the loan had been made upon mortgage ; and he or they shall be entitled, on applying for the same, to obtain immediate possession of the tenure of the defaulter, in order to recover the amount so advanced from any profits belonging thereto.' Bengal Act VIII of 1869, Section 62, applied the provisions of the Regulation just cited to the case of a tenure about to be sold under that Act, and the payment of the rent by 'any one interested in the protection of the undertenure.' And now by the Bengal Tenancy Act VIII of 1885, Section 171, somewhat similar protection is given to 'any person having in a tenure or holding advertised for sale' 'an interest which would be avoidable upon the sale,' who pays 'the amount requisite to prevent the sale.' I do not think any strong inference can be drawn from such enactments as these, either for or against the general principle contended for. I certainly think none can safely be drawn in favour of it; otherwise we should be led to the strange conclusion that wherever the Legislature has made a protective provision of this nature in a particular instance, we should have to infer from the very fact of its having been made that it is useless, because we should have to infer the existence of a general principle governing the case and rendering the specific enactment unnecessary.
11. The provisions of Act XI of 1859 have, I think, a much closer bearing upon the question before us. Section 9 of that Act says: 'The Collector, or other officer as aforesaid, shall at any time before sunset of the latest day of payment determined according to Section 1ll of this Act, receive as a deposit from any person, not being a proprietor of the estate or share of an estate in arrear, the amount of the arrear of revenue due, to be credited in payment of the arrear at sunset as aforesaid, unless before that time the arrear shall have been paid by a defaulting proprietor of the estate. And in case the person so depositing, whose money shall have been credited in the manner aforesaid, shall be a party in a suit pending before a Court of Justice for the possession of the estate or share from which the arrear is due, or any part thereof, it shall be competent to the said Court to order the said party to be put into temporary possession of the said estate or share, or part thereof, subject to the rules in force for taking security in the cases of parties in civil suits. And if the person so depositing, whose money shall have been credited as aforesaid, shall prove before a competent Civil Court that the deposit was made in order to protect an interest of the said person, which would have been endangered or damaged by the sale, or which he believed in good faith would have been endangered or damaged by the sale, he shall be entitled to recover the amount of the deposit, with or without interest as the Court may determine, from the defaulting proprietor. And if the party so depositing, whose money shall have been credited as aforesaid, shall prove before such a Court that the deposit was necessary in order to protect any lien he bad on the estate or share or part thereof, the amount so credited shall be added to the amount of the original lien.' The corresponding Section 9 of Act I of 1845 was in similar terms, except that it did not contain the last clause about lien. It could not of course be contended that an enactment which purports expressly to confer a narrow and limited right, of necessity excludes a larger right, if the existence of the larger right is clearly established apart from the special enactment. But where the existence of a larger right is not clear but highly doubtful, I think the express creation of the narrower right tends strongly to negative the existence of the larger. In Section 9 the Legislature dealing with two classes of persons says that one of them shall have a personal right of suit, and that the other shall have a lien besides. I think the inference is that the Legislature intended the section to represent the law, and that seems to me to go far to negative the doctrine new contended for, by which both classes alike would have a lien. So too when in the same section it is said that if the holder of a lien pays the revenue, 'the amount shall be added to the amount of the original lien.' I think the inference is that that is the lien which the Legislature intended him to have, a lien on the interest of his own mortgagor, not as now contended a general lien on all the interests in the estate. I have not overlooked the fact that the case of a part-owner is not dealt with in Section 9, nor, except in a particular instance, in Section 15, expressly dealt with at all. But the doctrine contended for is general.
12. The matter appears to me to stand thus: I think it is settled that according to the rules of equity in force in England, no such lien as that contended for exists. The same rule was consistently applied in the Court of Sudder Dewany. The recent cases in this country, in which a different view has been taken, have been based upon what seems to me a misapprehension of the meaning of the dictum of the Privy Council in the case referred to. And there are strong indications of an intention on the part of the Legislature inconsistent with such lien. We are not, under these circumstances, in my opinion, at liberty to treat the matter as if it were res integra, and, under the name of equity and good conscience, to adopt whatever rule we think most likey to work well. If we were, I should hesitate much before adopting such a rule as that pressed upon us. In the tangle of interests which an estate in this country presents-zemindari rights, tenures, and under-tenures without limit, every one of them commonly held in co-ownership,, and every share of every interest perhaps subject to mortgages. I cannot pretend to foresee what the consequences may be of broadly laying down such a doctrine as we are asked to do. I am disposed to think it a safer course to leave the Legislature to treat the matter as it may think fit, dealing, as heretofore, with each class of persons as occasion requires, and conferring such liens and subject to such restrictions as may be deemed desirable., I should answer the question referred to us in the negative.
13. I concur with the judgment of Wilson, J.
14. I now feel constrained to concur in the view expressed in Mr. Justice Wilson's judgment. For, on the one hand, it is clear that the law of England does not recognize the lien which the plaintiff seeks to establish in this case; and on the other hand, it was not recognized in this country until the principle was affirmed in Enayet Hossein's case 14 B.L.R. 155 and the decision in that case as well as those in which the principle has since bean followed are based upon a dictum of the Judicial Committee in the ex parte appeal of Nogender Chunder Ghose v. Kamini Dasi 11 M.I.A. 241. I was myself a party to one of the judgments of this Court in which effect was given to that dictum--Mohesh Chunder Banerjee v. Ram Prosunno Chowdhry 6 C.L.R. 26. But I am bound to say that the further consideration which I have now had to give to the question has satisfied me that I too readily accepted that dictum as implying more than I now think their Lordships can have intended. The case was that of a mortgagee, as was also that in which I was one of the Judges who affirmed the principle now in question. But I think now that it is at least extremely doubtful, for the reasons stated by Mr. Justice 'Wilson, whether their Lordships intended to commit themselves in that case to the opinion that a co-owner of an estate, by the payment of the Government revenue which he is bound by law to pay, thereby acquires a lien upon the whole estate of his co-sharers for the amount paid, which he is by equity entitled to enforce against it after it has passed by sale to a stranger. The proposed equity is so attractive and has been so powerfully supported in Mr. Justice Mitter's judgment,, while it has also has been approved by such authorities as the High Courts of Bombay and Allahabad, that it is somewhat difficult to me to resist it; but nevertheless I cannot quite persuade myself of its soundness. I would, therefore, answer the question in the negative.