Case: Sri Sankari Prasad Singh Deo Vs. Union Of India And State Of Bihar(And Other Cases)

1. The plaintiffs, Joti Prasad and Sat Narain, sued for partition and possession of their two-fifths share in the suit properties alleging that the first defendant was alone in possession of the same, having redeemed a mortgage executed by the joint family of which the plaintiffs and defendants were member, in favour of one Raghumal in the year 1896 on paying Rs. 5,800. Defendants 2 to 5 were impleaded as co-sharers. Out of them, defendants 2 and 3 admitted the claims of the plaintiffs. Defendant 4 died pending suit, and her name was struck5 supported theOn the date of the trial Courts decree, the two plaintiff were held entitled to one-sixth share each.2. The defendant 1, resisted the plaintiffs claim. He contended that the redemption by him in 1920 was not on behalf of the joint family as alleged by the plaintiffs but on his own account as there had been a disruption of the joint family status much earlier, and that before the plaintiffs could get any relief, they were bound to pay him not merely a proportionate share in the sum of RS. 5,800 which he paid to the mortgagee for redemption but their share in the original mortgage debt of Rs. 11,200. He also denied that the original mortgage was executed on behalf of the joint family.3. The Subordinate Judge, and on appeal, the High Court found that the original mortgage was a mortgage transaction of the joint family, and that the defendant 1, Ganeshi Lal, redeemed the mortgage on his own account and for his own benefit at a time when there was no longer any joint family in existence. It was further held by the trial Court that the plaintiffs and other co-sharers were bound to pay their proportionate share of the amount paid by the defendant 1 to redeem the mortgage, namely, Rs. 5,800. But from this a sum of Rs. 1,200 which he had already received by way of redemption of certain mortgage rights had to be deducted. The District Judge enhanced this sum of Rs. 4,600 to Rs. 5,000, as the defendant 1, had paid taxes due on the property up to 1940, but he confirmed the main findings of the Subordinate Judge. A second appeal preferred by defendant 1was dismissed by the High Court at Simla (Mehr Chand Mahajan and Teja Singh JJ.). They repelled the contention of defendant 1, that a suit for partition and possession was not maintainable without bringing a suit for redemption. They also negatived his right to get a proportionate share in the amount of Rs. 11,200 due on the mortgage. Two other learned Judges gave leave to appeal under S. 109 (c) of the Civil Procedure Code, as a substantial question of law was involved.

Reasoning:
5. Points Nos. 1 and 3 have no force whatever. The registered deed of redemption does not contain any words of assignment. To say that Ganesh Lal shall be the owner of the entire amount due from the mortgaged property is something different from stating that the security has been assigned in his favour. On the other hand, the endorsement of receipt of payment on the back of the mortgage deed itself and the statement of the mortgagee that he has released the mortgaged property from his mortgage go to show that there was no assignment.6. The non-maintainability of the suit does not seem to have been in issue either before the trial Court or before the District Judge, and it appears to have been raised for the first time before the High Court. It was pointed out by the learned Judges, and quite rightly, that so long as no question of limitation was involved, there was no objection to a claim for redemption and one for possession and partition being joined together in the same suit.The original Ss. 74 and 75 conferred the right to redeem in express terms only on second or other subsequent mortgagees though the co-mortgagors right to subrogation on redemption was recognised even before the Act. As the Transfer of Property Act has not been extended to the State of East Punjab, it is unnecessary to decide whether S. 92 is retrospective in its operation, on which point there has been a conflict of opinion between the several High Courts. Section 95 of the Act which removed the confusion caused by the old section which conferring on the co-mortgagor what was called a charge, and thus seeming to negative the application of the doctrine of subrogation, is also inapplicable to the present case. We therefore steer clear of Ss. 74 and 75 of the old Act and Ss. 92 and 95 of the present Act, and we are free to decide the question on principles of justice, equity and good conscience.There is a definite expression of opinion by the Madras High Court on the point in the decision reported in Suryanarayana v. Sriramulu, 25 M. L. J. 16. In that case, a purchaser of a half share of the equity of redemption claimed to recover half of the amount of the mortgage on the security of the other share in the hands of the defendant, and it was held that as his purchase of the decree on the mortgage was prior to his purchase of the equity of redemption he was entitled to the full amount claimed by him. The learned Judges, distinguish the case from one where one of two mortgagors discharges an encumbrance binding on both and say that in such a case the mortgagor doing so could not recover from his co-mortgagors more than a proportionate share of the amount actually paid by him.17. After, this father lengthy discussion of the subject, we consider it unnecessary to notice and comment on the several decisions cited for the appellant. It may be said generally that they only lay down that in cases where the Transfer of property Act, as it stood originally or as amended in 1929, is not applicable, we are governed by the principles of equity, justice and good conscience, and that Ss. 92 and 95 embody such principles. None of the cases deals with the extent or degree of subrogation, and there is nothing in them which runs counter to the view that the doctrine must be applied along with other rules of equity, so that the person who discharges the mortgage is amply protected, and at the same time there is no injustice done to the other joint debtors. He who seeks equity must do equity, and we shall be violating this rule if we give effect to the appellants contention. The High Court, in our opinion, reached the correct conclusion.The parties are not agreed on the shares to which the plaintiffs are entitled and this is because after the date of the final decree some of the branches have become extinct by the deaths of their representatives. Whether under customary law in the Punjab, uncles exclude nephews or they take jointly, and whether succession is per stirpes or per capita, was the subject of disagreement at the Bar before us. This question must therefore be left over for determination by the trial Court, and, the case will have to go back to that Court for effecting partition and delivery of possession according to the shares to which the plaintiffs may be found entitled.