JUDGMENT

Dalal, J C - These six appeals are filed from decrees in two suits of contribution Nos. 258 and 259 of 1922. The suits were brought by one Munney Mirza for contribution. Two persons, Babban Lal and Muhammad Asghar, obtained two decrees for arrears of guzara charged upon immovable property. Munney Mirza was one of the defendants and paid off the decretal amounts thereby saving the immovable property from sale. He came to Court on the allegation that such payment gave him a charge on the property to recover proportionately their shares from the other defendants. There were several defendants and a separate decree was desired against every one of them by sale of the property in his possession.

2. Appeals Nos. 3, 4 and 7 relate to suit No. 258. Appeal No. 2 is filed by two of the defendants, Qamar Jahan Begam and Rashan Jahan Begam. Appeal No. 4 is filed by one of the defendants, Dwarka Nath, while Appeal No. 7 is filed by the plaintiff Munney Mirza against one of the defendants Abida Begam, against whom his suit was dismissed by the trial Court. Appeals Nos. 5 and 6 are corresponding appeals relating to suit No. 259.

3. In the appeals by the two ladies and Dwarka Nath the common grounds are: (1) that the suit was barred by limitation; and (2) that interest on the money due was recoverable only for three years prior to the institution of the suit and not for six years prior to that date as has been held by the lower Court.

4. There is an additional ground in the appeal by the ladies that in appeal No. 3 there is a miscalculation which resulted in each of the ladies being made to pay Rs. 111-12-3 in excess of what was due from her.

5. The plea of limitation cannot in my opinion be sustained. Section 95 of the Transfer of Property Act lays down that where one of several mortgagors redeems the mortgaged property and obtains possession thereof, he has a charge on the share of each of the other co-mortgagors in the property for his proportion of the expense properly incurred in so redeeming and obtaining possession. There is no question that Munney Mirza did redeem the mortgaged property by paying off the decretal amounts in both the decrees. The Privy Council has finally settled that the provisions of this section are not confined to a usufructuary mortgage where the mortgagee obtains possession, but the words as to possession are to be read as applying to cases where it is possible from the nature of the mortgage to obtain possession. Yacub Ali Khan v. Kishan Lal [1906] 28 All. 743: It is interesting to note that the section was so interpreted first of all by a single Judge of this Court in 1901: Ghulam Maula Khan v. Must. Banno Khanam [1901] 4 O.C. 273. Subsequently in 1903 this view was adopted by a Bench of the Allahabad High Court in Bhagwan Das v. Hardei [1904] 26 All. 227.. The judgment of their Lordships of the Privy Council was delivered in 1905 in Ibn Hasan v. Brijbhukhan Saran [1904] 26 All. 407. Mr. Justice Banerji pointed out that, even apart from the provisions of Section 95, such a payment by one of the judgment debtors raises a charge on the property. There can thus be no doubt as to the creation of a charge.

6. The next question is whether the charge is created from the date of payment or whether the judgment-debtor who makes the payment is subrogated to the rights of the decree-holder and his period of limitation runs from the date of the decree-holder's mortgage. A Bench of the Calcutta High Court has held in favour of the view of subrogation which appears to be supported by observations in Ghose's Law of Mortgage: Sreemati Raj Kumari Debi v. Mukunda Lal Bandopadhaya A.I.R. 1921 Cal. 166. The learned commentator deals with the subject at page 397 of the Law of Mortgage, Vol. 1, 5th Ed. He details the remedies open to the person acquiring the charge and says: "He may sue simply for reimbursement, if the defendant is personally liable, within the period prescribed for such suits by the statute of limitation"