1. This appeal arises out of a suit for contribution under the following circumstances:
Three brothers Chandra, Gopi and Surja were the owners of an estate comprising two properties, which may conveniently be referred to as the Dacea property and the Dewali property. They mortgaged the properties in 1885. One of the brothers, Chandra, in September 1886 by his Will bequeathed his one-third share of the Dacca property to his daughter Raj Kamini, the defendant No. 1. In September 1891 the three brothers executed a mortgage in favour of Harendra for Rs. 4,000 and odd, out of which the previous mortgage (of 1885) was paid off. Chandra then died, and his Will was proved and Probate granted. In 1903 the mortgagee Harendra brought a suit upon his mortgage against the plaintiff, the defendant No. 2 Surja, and defendants Nos. 3 and 4 who are the representatives of the other brothers. The defendant No. 1, who had obtained the one-third share in the Dacca property under the Will of her father, was not made a party to the suit. It appears that the plaintiff and the defendants paid a sum of Rs. 3,019 to the mortgagee before the suit was brought upon the mortgage, and the mortgagee brought his suit after giving credit for the said sum. A preliminary decree was passed in the mortgage suit on 23rd June 1903. On the 22nd February 1904 the plaintiff and the defendants Nos. 2 to 4 paid another sum of Rs. 3,000 to the mortgagee, and on the 9th May 1908 order absolute for sale of the mortgaged properties was passed. An one-third share of the Dewali property (belonging to the defendant No. 2) was then sold in execution of a money decree and was purchased for Rs. 744 by the mortgagee, which was credited by him in part satisfaction of his decree. The mortgagee accordingly put up the whole of the Dacca property and two-thirds of the Dewali property to sale, and to prevent the sale, the plaintiff and defendant No. 4 on the 23rd March 1909 deposited in Court Rs. 3,018 and odd: and the decree was accordingly satisfied.
2. The present suit was instituted on the 7th October 1915 by the plaintiff to recover the sum paid by him in excess of his share which was payable by the defendant No. 1 proportionately to her share in the Dacca property. The Court of first instance held that the claim in respect of the first payment (Rs. 3,019) was barred by limitation, but that plaintiff was entitled to contribution in respect of the last two payments and being of opinion that Article 132 of the limitation Act was applicable, decreed the claim in respect of the same (the payments having been made within 12 years of the suit) together with interest thereon at 12 per cent. On appeal that decree was varied only by reducing the interest to 7 per cent. The defendant No. 1 has appealed to this Court.
3. Three contentions have been raised in this appeal: the first is that the payments were voluntary, secondly, that the plaintiff did not acquire any charge over the share of the defendant No. 1 and thirdly, that the suit was barred by limitation.
4. We will first deal with the question of limitation The suit, having been brought more than 6 years after the dates of payments, is barred whether Article 60 or 99 or Article 120 of the Limitation Act applies, and it would also be barred unless the charge can be enforced within 12 years of the dates of payment. Assuming, therefore, that the plaintiff was entitled to contribution and had acquired a charge on the share of the defendant No. 1, the question is whether the charge is to be enforced within the same period within which the mortgagee, supposing he had not been redeemed, could have paid as plaintiff. The determination of the question depends upon whether a co-mortgagor redeeming the mortgaged property should be treated as an assignee of the original security, or as a person who acquires a fresh charge.
5. Now if a co-mortgagor redeeming the entire mortgage is subrogated to the rights of the mortgagee, his position would be that of an assignee of the mortgagee although he does not take a formal assignment of the mortgage. The position of a co-mortgagor redeeming a mortgage has been considered in several cases in connection with suits under Article 148 of the Limitation Act. In an unreported case noted in Mitra's Law of Limitation, 1st Edition, at page 162, Pontifex, J, spoke of the co mortgagor who redeems the entire mortgage as 'standing in the shoes of the mortgagee' in respect of such portion of the redeemed property as belongs to the other mortgagors. A similar View was taken by the Allahabad High Court in Pancham Singh v. Ali Ahmad 4 A. 58 : A.W.N. (1881) 113 : 2 Ind. Dec. (N.S.) 616. In the case of Nura Bibi v. Jagat Narain 8 A. 295 : A.W.N. (1886) 98 : 5 Ind. Dec. (N.S.) 100 the Allahabad High Court, applying the equitable principle adopted in Sections 95 and 100 of the Transfer of Property Act, held that the owner of a portion of a mortgaged estate which has been redeemed by his co-mortgagor has the right to redeem such portion from his co-mortgagor, and a suit brought for the purpose would be in the nature of a suit for redemption and fall under Article 148 of the Limitation Act.
6. The above cases were followed by the Full Bench of that Court in Ashfaq Ahmad v. Wazir Ali 14 A. 1 (F.B.) : A.W.N. (1891) 211 : 11 A. 423 : 7 Ind. Dec. (N.S.) 373, where Edge, C.J., Straight and Mahmood, JJ., held that the limitation applicable to such a suit was that provided by Article 148, that time ran not from the date of the redemption but from the time when it would have run against the original mortgagee if he had been a defendant, i.e., the date of the original mortgage. Straight, J., after referring to the case of Nura Bibi v. Jagat Narain 8 A. 295 : A.W.N. (1886) 98 : 5 Ind. Dec. (N.S.) 100 and certain other cases, Observed: 'Further, even before the Transfer of Property Act came into operation, I took the view that a co-mortgagor redeeming the whole mortgage stood in the shoes of the original mortgagee and was entitled to all the rights and the incidents connected with his estate. The principle that underlies that is, that he, having paid off the obligation to the creditor, is entitled to take advantage of all the incidents connected with the security as it stood in the hands of the mortgagee, or, in other words, he is entitled to all rights and incidents connected with the mortgage as they were in the hands of the mortgagee at the time the redemption took place. Amongst others he cannot say that a new mortgage transaction commenced from that particular date, but his position as mortgagee stands upon the same footing as it would have if the original mortgagee had assigned over to him by sale his mortgagee interest. Not only do I think that a co mortgagor redeeming the whole mortgage stands in the position of the original mortgagee, but that time runs from the date of the original mortgage.' 'But I cannot myself agree with the view that the limitation runs from the date when the redemption took place. It must, in my opinion, relate back to the date of the original mortgage, and upon this, I have explained my reason in the case of Nura Bibi v. Jagat Narain 8 A. 295 : A.W.N. (1886) 98 : 5 Ind. Dec. (N.S.) 100.'
7. In Har Prasad v. Raghunandan Prasad 1 Ind. Cas. 825 : 31 A. 166 : 6 A.L.J. 67 & 832 it was held that the charge obtained by a mortgagor discharging the whole mortgage debt on his co-mortgagor's share of the mortgaged property takes priority over a subsequent mortgage created by the other co-mortgagors. Sir John Stanley, C.J., observed: 'No doubt the charge came into existence when the mortgage was paid off, but as the person who acquired the charge had discharged a prior mortgage, he acquired, we think, priority over an intermediate puisne mortgagee. There can be no doubt that a subsequent mortgagee or the purchaser of the equity of redemption who pays off a prior mortgage acquires, on equitable grounds, priority over a puisne mortgagee. On the principle of subrogation he is substituted for the prior mortgagee and acquires the rights of such mortgagee and the benefit of the securities held by him. We fail to see any difference in principle between the case of a subsequent mortgagee or purchaser of the equity of redemption and that of a co - mortgagor who satisfies a prior mortgage. Both classes of persons relieve another and his property of the liability which attaches to them, and the same principles of justice and equity which apply to the one class equally apply to the other. The rule of subrogation is founded on equitable principles and if a subsequent mortgagee or purchaser is subrogated to the prior mortgagee whose debt, he discharges, a co-mortgagor is equally subrogated.' Now the co sharer redeeming a mortgage can be entitled to priority over a subsequent mortgagee, only if be steps into the shoes of the original mortgagee, and not if be has merely a charge on the property which comes into existence for the first time on the day he redeems the original mortgage.
8. In Digambar Das v. Harendra Narain 5 Ind. Cas. 165 : 14 C.W.N. 617 : 11 C.L.J. 226 Mookerji and Teunon, JJ., also held that if one of several joint mortgagors in order to pretest his interest pays the joint debt, he is placed in the position of the mortgagee in relation to his co mortgagors, to the extent of their shares of the debt; although they held that the substitution of the new creditor in place of the original one does not place the former precisely in the position of the latter for all purposes and that the extent to which subrogation would be carried in any particular case must be governed by equitable considerations. The question now before us, viz , that of limitation had not to be considered in that case.
9. On the other hand in the case of Basudev Bhikaji v. Baluji Krishna 26 B. 500 : 4 Bom. L.R. 178. Jenkins, C.J., in considering the question whether a suit by ore of the mortgagors to recover his share against his co-mortgagor, who had redeemed the mortgage from the mortgagee, comes within Article 148 of the Limitation Act, observed: 'Were the Transfer of Property Act applicable, his position would be defined by Section 95 of that Act, under which a redeeming co-mortgagor has a charge on the share of each of the other co mortgagors. Then in Section 100 it is provided that 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. We see, therefore, from this that in the Transfer of Property Act a distinction is drawn between a charge and a mortgage, and that what a redeeming co-mortgagor has is a charge and not a mortgage. From this it would follow that he would not be a mortgagee within the meaning of Article 148. No doubt this reasoning proceeds on the provisions of the Transfer of Property Act which does not govern this case; but, in our opinion, the Act merely gives legislative expression to what was the law apart from it, so that even without the Act our conclusion would be the same.'
10. No doubt Section 95 of the Transfer of Property Act speaks of a charge, and Section 100 says that '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.' But if the co mortgagor who redeems stands in the shoes of the mortgagee, and is vested with all the rights and liabilities of the mortgagee in relation to his mortgagors, the transaction (although by fiction of law) may be treated as amounting to a mortgage. If it is a mere 'charge' as distinguished from a mortgage, it would not be enforceable against a bona fide purchaser for value. which could hardly have been intended by the Legislature. It might be, as pointed out in Ghose's Law of Mortgage, 4th Edition, Volume II at page 831, that 'the draftsman found the word 'charge' in the old Sadar Dewani judgment to which the Law Commissioners refer where it was probably used as meaning the came as a mortgage. This also seems to be a probable explanation of the use of the word 'expenses' which ordinarily would not include the mortgage debt itself.'
11. In Ghose's Law of Mortgage, Volume I at page 3l8, it is stated: 'Strictly speaking, therefore, when one of several mortgagors redeems a mortgage, he is entitled to be treated as an assignee of the security which he may enforce in the usual way for the purpose of reimbursing himself. It is true Section 95 of the Transfer of Property Act allows only a charge on the interests of the co mortgagors. But whatever may be the true construction of this unskilfully drawn and clumsily worded section, I venture to think it does not impose any new burden, and the charge would have the same priority as the security which has been redeemed, on the principle that the benefit of subrogation may be claimed by any person who redeems a mortgage on an estate in which he is only partially interested.' And again at page 372 the learned author says: 'This brings me straight to a question which has hardly received the attention it deserves, namely, the period within which such charge may be enforced under the Limitation Act. it has, however, been elaborately debated in a number of cases in America, and though they betray a singular divergence of views, the better opinion seems to be that a person who is bound only to pay a part of the mortgage-debt, acquires on redemption two distinct rights. He may sue simply for reimbursement, if the defendant is personally liable, within the period prescribed for such suits by the Statute of Limitations. He may also sue to enforce the right of the mortgagee to follow the mortgaged property, but in such case he would occupy the same position as the mortgagee, supposing he had not been redeemed, and was the plaintiff in the suit. The period of limitation will not be either longer or shorter.'
12. It may in some cases be hard upon the mortgagor redeeming a mortgage and seeking contribution against his co-mortgagor, if the suit is to be brought within the period within which the mortgagee could have brought a suit to enforce his mortgage. The mortgagee may bring the suit on his mortgage on the last day of the period of limitation, and in any case the payment of the mortgage decree may have to be made at a tine when the period within which the suit on the mortgage could have been brought had already expired But if a contrary view were adopted, it would be equally hard in cases coming under Article 143 of the Limitation Act, where the period for redemption by the co-mortgagor would be out down to 12 years from the date of the payment instead of 60 years from the date when the original mortgage money became due.
13. The question is not free from difficulty, but we think on principle and having regard to the weight of authority that the position of the co mortgagor redeeming a mortgage is that of an assignee of the original security and that the period of limitation is the same as that within which the original mortgagee could have brought his suit on his mortgage had he not been redeemed.
14. In the present case the date of the mortgage was the 13th September 1891 and the suit on the mortgage itself was brought in 1903, The payments were made on the 22nd February l904 and the 23rd March 1909. The present suit was brought on the 7th October 1915, i.e, more than 6 years after the dates of the payments and 12 years after the due date of the original mortgage. It is, therefore, barred by limitation. If is unnecessary, therefore, to consider the other questions in the case. The appeal must accordingly be allowed and the suit dismissed: but we direct that each party do bear its own costs in all Courts.