Judgement

Appeal (No. 28 of 1929) from a decree of the High Court (February 11, 1927), reversing a decree of the Subordinate Judge at Aligarh (May 1, 1922).

The respondents, as representatives of one Sher Singh, sued the appellants for rateable contribution under s. 82 of the Transfer of Property Act, 1882, in respect of the sum paid by Sher Singh to discharge a mortgage upon certain villages.

The facts appear from the judgment of the Judicial Committee.

The High Court, reversing the decision of the trial judge, held that the plaintiffs were entitled to contribution. The learned judges (Mears C.J. and Lindsay J.) found that the purchase by Ganeshi Lal was not, as he contended, free from incumbrances, and held that he could not claim the benefit of the

Law. Rep. 57 Ind. App. 189 ( 1929- 1930)

Ganeshi Lal V. C haran Singh 48

contract of 1914 between Sher Singh and the mortgagor as he was not a party to it. For these reasons they held that Muhammad Abbas v. Muhammad Hamid (9 All. L. J. 499.) was distinguishable. [Reference was made also to Jamna Das v. Ram Autar Pande. (( 1916) I. L. R. 38 A. 209.)]

1930. March 13. Dube for the appellants contended that upon equitable principles the appellants were not liable to contribution in the circumstances of the case. [He referred to Transfer of Property Act, 1882, s. 55, sub-s. 5 (b) ; Jones on Mortgages, 6th ed., s. 743, cited in Seshagiri Aiyar v. Vythilinga Pillai (( 1909) I. L. R. 33 M. 211, 212.); and Muhammad Abbas v. Muhammad Hamid, (9 All. L. J. 499.)]

Subba Row for the respondents was not called upon.

The judgment of their Lordships was delivered by

LORD TOMLIN. This is an appeal from a judgment of the High Court of Judicature of Allahabad which reversed a judgment and decree of the Subordinate Judge of Aligarh.

In the suit the respondents, before their Lordships Board, being the representatives of the purchaser of one property (which may be called " K ") sued for contribution from the appellants, the purchasers of a second property (which may be called "M"), on the ground that the purchaser of K. had paid off a mortgage which covered both properties.

Now the section of the Transfer of Property Act which deals with the right of contribution is s. 82, and it is in these terms " Where several properties, whether of one or of several owners, are mortgaged to secure one debt, such properties are, in the absence of a contract to the contrary, liable to contribute rateably to the debt secured by the mortgage after deducting from the value of each property the amount of any other encumbrance to which it is subject at the date of the mortgage."

That is the statutory provision by which contribution as between owners of equities of redemption subject to a common mortgage is regulated.

The facts of this case are as follows. On November 8, 1906, the original owner of both properties created a mortgage for 8000 rupees in favour of one Mangal. On May 19, 1914, he purported to sell property K to Sher Singh, the ancestor of the respondents, for 33,000 rupees, and a sum of 32,000 rupees out of the purchase price was left with Sher Singh to enable him to discharge the mortgage of November 8, 1906, and other debts of the vendor, including certain debts for which creditors had already obtained decrees and had attached the properties. On May 21, 1914, property K was sold under a decree obtained by another creditor of the mortgagor before May 19, 1914. This sale was subject to Mangals mortgage and was for 1450 rupees. In July, 1914, the other property M was sold to the first appellant on behalf of himself and the second appellant in execution of a decree obtained by Kishin Singh, a creditor of the mortgagor before May 19, 1914. It was sold for 2900 rupees subject to Mangals mortgage. That sale constituted the title of the appellants to property M. The purchaser later on, on April 16, 1915, conveyed property K to Sher Singh. These sales, of course, overrode the sale to Sher Singh purported to have been m