Claim cannot be thrown out only on the ground of technalities.

Bose, J.-This is a defendant’s appeal in a suit for contribution brought by son of a mortgagor against the co-mortgagors.

The parties are related as below:

The mortgagors were the plaintiff’s father Tarak Lall and Tarak’s two brothers Kedar and Naku. The mortgage was executed on the 12th June, 1936 in favour of one Mst. Gyarsi for a consideration of Rs. 80,000. For convenience I will call this the suit mortgage though this is not a suit on the mortgage.

The mortgagee sued in the year 1938 and obtained a preliminary decree for sale on the 17th of February, 1939, for a sum of Rs. 89,485-12-9 plus costs. The decree was made final on the 22nd of December, 1939.

In execution the mortgagee proceeded against the property of the plaintiff alone (as Tarak’s son) and, during the pendency of the execution, assigned her rights in the decree to the Hooghly Flour Mills. The Mills continued the execution and on the 11th of March, 1943, the claim was satisfied in this way.

An order of the Court was obtained sanctioning sale of a part of the mortgaged property, 20, Round Tank Lane (which belonged exclusively to the plaintiff), to the decree-holder for a sum of Rs. 1,50,000. It was directed that the consideration should first be applied in payment of the claim and costs and that the decree-holder should execute a reconveyance of the rest of the mortgaged properties in favour of the mortgagors. The sanction of the Court was necessary because the judgment-debtor Hari Lall (present plaintiff) was a minor.

This was done and 20, Round Tank Lane, was conveyed by the present plaintiff to the Hooghly Flour Mills on the 18th of March, 1943. Out of the consideration a sum of Rs. 97,116-11-0 was paid to the Mills in full satisfaction of the claim and costs then outstanding. The Mills executed a reconveyance of the rest of the properties to the mortgagors in release of the mortgage on the same day.

In addition to this Rs. 97,116-11-0, further sums of Rs. 14,400 and Rs. 8,100 had also been paid before the dates of these transactions. These sums were paid by a Receiver who had been appointed by the Court pendente lite. These sums came out of the rents which the Receiver obtained from the plaintiff’s property, 20, Round Tank Lane.

The plaintiff says that in this way he paid a total of Rs. 1,19,116-11-0 in satisfaction of the mortgage. His one-third share in this comes to Rs. 39,872-3-8. He claims that he is entitled to receive the balance of Rs. 79,744-7-4 from the two defendants and that each of them is liable for a half of that sum, namely, Rs. 39,872-3-8.

In addition to this the plaintiff had incurred costs amounting to Rs. 1,144-8 6 in resisting Mst. Gyarsi’s claim and in connection with the reconveyance. He also claims one-third of this sum, namely, Rs. 381-8-2, from each of the defendants. The total claim against each defendant accordingly comes to Rs. 40,253-11-10.

In addition to this the plaintiff asked for-

(1) “a declaration that the properties mentioned in Schedule ‘A’.......belonging to the defendants stand charged with the repayment of the sum of Rs. 80,507-7-8 being the aggregate amount due and payable by the two defendants,” and

(2) “Decree under Order XXXIV of the Civil Procedure Code in proper form.”

Schedule A contains a list of the rest of the mortgaged properties, which belong exclusively to the defendants.

It will be seen that the plaintiff claims on the basis that each of the three mortgagors is liable to contribute in equal shares towards payment of the mortgage debt.

The defendants did not deny their liability to contribute. They only challenged the basis on which it was to be computed. They pleaded a special agreement between Tarak Lal and themselves under which their liabilities were to be calculated in the following way. According to them, the bulk of the Rs. 80,000 was borrowed on what I have called the suit mortgage to pay off previous debts which had been incurred by the parties on earlier mortgages. The amount which went towards sa