JUDGMENT

Bennet, J. - This is an appeal by the plaintiffs whose suit for contribution against defendants has been allowed by the lower Appellate Court to the extent only of one-ninth instead of one-half claimed by the plaintiffs of the sum of Rs. 7l9-11.0 which the plaintiffs admittetly paid to discharge a joint mortgage decree. The facts are that on 17th'May, 1920, a mortgage-deed was executed by Ram Charan Lal the pre-decessor-in-'interest of the plaintiffs and by his nephew defendant No. 1 Rashik Behari Lal on that mortgage-deed the mortgagee Chotey Lal brought a suit No. 321 of 1926 and obtained a decree on 28th August, 1926, and he put up for sale a house which belonged jointly to the mortgagors and the plaintiffs had to pay Rs. 719 11-0 in order to get the sale Set aside. The plaintiffs have brought this suit for contribution of one-half of that amount and interest against defendant No. 1 and defendant No. 2, who is a transferee of the property from defendant No. 1. The basis of the suit is that in the mortgage-deed the property pledged belonged to Ram Charan Lal to the extent of one-half and to his nephew Rashik Behari Lal to the extent of one-half. Accordingly the claim is that u/s 82 of the Transfer of Property Act the, property pledged by Rashik Behari Lal should contribute to the extent of its rateable value, that is one-half. The Gourt of first instance decreed the suit. The defendant Rashik Behari Lal appealed, and the lower Appellate Court has decreed the suit for only one ninth of the money paid to the decree holder Chotey Lal instead of one-half. The principle which has been adopted by the lower Appellate Court is that the joint mortgagors should only contribute in proportion to the amount of benefit which they received from the mortgage money. The lower Appellate Court held that out of the mortgage money the major portion was taken for the marriage of a son of Ram Charan Lal and that Rashik Behari Lal only benefited to the extent of his interest in the payment of revenue which was Rs. 42 for a payment required in May, 1920. It was not found by the lower Appellate Court that there was any contract contrary to the principle of contribution laid down in Section 82 of the Transfer of Property Act, nor was there any definite pleading in the written statement to that effect. What the written statement did say was that the mortgage money had been borrowed for the marriage of the son of Ram Charan Lal and that the defendant No 1 merely signed the mortgage-deed for the satisfaction of the mortgagee and at the instance of Ram Charan Lal. Now it would have been necessary for a clear pleading to nave been put forward that there was a contract between the parties to the effect that Ram Charan Lal was solely responsible for the payment of the mortgage money in whole or in part as between the mortgagors, and that Rashik Behari Lal was not liable for any part or only for a small part. No such contract was alleged. Secondly, any such contract would have had to be a contract to which the mortgagee would have assented. This principle has been laid down in Rama Bhadrachar v. Sriniwas Ayyangar 24 M. 85 and has been followed by two rulings of this Court in Charan Singh and Others Vs. Ganeshi Lal, AIR 1926 All 352 and Muhammad Inamullah Khan v. Aisha Bibi 96 Ind. Cas. 785 : 24 A.L.J. 714.

2. The learned Counsel for the respondents was not able to produce any authority for the proposition of law which has been adopted by the lower Appellate Court, that is, that mortgagors are only liable inter se to the extent of the benefit they have received from the mortgage money. Such a principle might, no doubt, have been adopted by the Legislature but in point of fact the Legislature has adopted a contrary principle in Section 82 of the Transfer of Property Act. That section lays down that inter se mortgagors are liable for contribution in proportion to the value of their property which has been included in the joint mortgage. In the present ca