Judgement

Appeal (No. 133 of 1931) by special leave from a decree of the High Court (January 14, 1929) affirming a decree of the Subordinate Judge of Monghyr (November 30, 1924).

The appellants having paid Rs. 14,000 to discharge a mortgage on land bought by them in 1916 at a sale for revenue instituted a suit claiming from respondents Nos. 1 to 43 (defendants first party) contribution on the principle enacted by s. 82 of the Transfer of Property Act, 1882.

The facts appear from the judgment of the Judicial Committee.

The High Court, affirming the Subordinate Judge, dismissed the suit.

The learned judges (Ross and Chatterji JJ.) by separate judgments agreed with the finding of the trial judge, that the appellants had purchased as benamidars for the pro forma respondents Nos. 53 to 61 (referred to in the judgment of the Board as Harbans), who on December 2, 1915, had bought from the mortgagors 61 acres included in the revenue sale to the appellants. The learned judges, by separate judgments, held in effect that, as on that sale Rs. 14,000 out of the purchase price had been left with Harbans to discharge the mortgage, and as the defendants first party (respondents Nos. 1 to 43) had purchased free from incumbrances, the plaintiff-appellants were not entitled to contribution against them. The appeal is reported at I. L. R. 8 Pat. 585.

1934. Jan. 15, 16, 18. Upjohn K.C. and Wallach for the appellants.

De Gruyther K.C. and Pringle for respondents Nos. 1 to 10 and 33 to 38.

[Reference was made to Ganeshi Lal v. Charan Singh (( 1930) L. R. 57 1. A. 189.) ; Muhammad Abbas v. Muhammad Hamid (( 1912) 9 All. L. J. 499.) ; Transfer of Property Act, 1882, ss. 56, 59, 82 ; Indian Evidence Act, 1872, ss. 58, 92.]

Feb. 2. The judgment of their Lordships was delivered by

LORD TOMLIN. This is an appeal in a suit in which the purchasers of part of the lands comprised in a mortgage having bought subject to the mortgage and having paid off the mortgage debt, claim contribution from persons owning other parts of the lands subject to such mortgage.

The appellants before their Lordships are the plaintiffs in the suit seeking contribution, while such of the respondents as are represented before their Lordships (hereafter referred to as the respondents) are the persons from whom contribution is claimed.

The suit was begun in the Court of the Subordinate Judge of Monghyr and was taken on appeal to the High Court of Judicature at Patna. In both Courts below the appellants failed.

The history of the case begins with a mortgage dated December 6, 1905, made by or on behalf of a joint Hindu family of part of the raiyati holding of such family containing about 454 acres, and also of shares in certain proprietary lands.

The mortgage deed was expressed to be for an advance of Rs.35,000, and was framed so as to consist of (1.) an usufructuary mortgage in lieu of interest for a term of nine years of 175 acres described in the first schedule to the mortgage, being part of the raiyati holding of the family, and (2.) a mortgage of the 175 acres described in the first schedule, and also of shares in certain proprietary lands described in the second schedule as security for all the moneys, principal and otherwise, owing under the mortgage.

The mortgage deed was duly registered within a day or two of its execution, but full effect was never given to it. It is admitted by both parties that as the result of a verbal agreement entered into between the mortgagors and mortgagees about the time at which the deed was registered, the mortgagees advanced Rs. 14,000 only of the Rs.35,000 mentioned in the deed, and were put into usufructuary possession of 70 acres only out of the 175 acres mentioned in the deed. There is a conflict between them as to whether as the result of the verbal agreement the remainder of the 175 acres of which usufructuary possession in lieu of interest was not given were excluded wholly from the mortgage so as to cease to be any part of the security.

Betw