Case: Ramnandan Prasad Narayan Singh Vs. Mahanth Kapildeo Ram Jee Andanother(And 3 Other Appeals)

(1) This is a defendants appeal in a suit for contribution brought by the son of a mortgagor against the co-mortgagors.(2) The parties are related as below:(3) The mortgagors were the plaintiffs father Tarak Lall and Taraks two brothers Kedar and Naku. The mortgage was executed on the 12/06/1936, in favour of one Mst. Gyarsi for a consideration of Rs. 80,000.00 . For convenience I will call this the suit mortgage though this is not a suit on the mortgage.(4) 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, 1989.(5) In execution the mortgagee proceeded against the property of the plaintiff alone (as Taraks 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.(6) 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. 1,50,000.00 . 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.(7) 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 lull 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.(8) In addition to this Rs. 97, 116-11-0, further sums of Rs. 14,400.00 and Rs. 8,100.00 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 plaintiffs property, 20 Round Tank Lane.(9) 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.(10) In addition to this the plaintiff had incurred costs amounting to Rs. 1,144-8-6 in resisting Mst. Gyarsis 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.(11) 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.(12) 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. 80,000.00 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 satisfaction of the defendants portion of these earlier liabilities was only Rs. 13,259-2-4. Therefore, the only benefit they got out of this Rs. 80,000.00 was to that extent. The plaintiffs father Tarak on the other hand benefited to the extent of Rs. 53,481-11-4. They therefore agreed at the date of the suit mortgage that their respective liabilities as between themselves should be proportionate to the benefit derived by each as above.(13) 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. 80,000.00 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 satisfaction of the defendants portion of these earlier liabilities was only Rs. 13,259-2-4. Therefore, the only benefit they got out of this Rs. 80,000.00 was to that extent. The plaintiffs father Tarak on the other hand benefited to the extent of Rs. 53,481-11-4. They therefore agreed at the date of the suit mortgage that their respective liabilities as between themselves should be proportionate to the benefit derived by each as above.

Reasoning: (45) Now we know that Tarak was in Calcutta about three months after the date of the alleged agreement. We also know that Kedar was most anxious to have such an agreement, for he tells us so. He tells us further that there was before them a rough draft of the terms. That document was produced in court. But the draft was neither signed nor initialed. The only inference I can draw from these facts is that Tarak either refused to agree or had not made up his mind. The figures put forward by the defendants were contested on behalf of the plaintiff and we were given an alternative set of figures which in turn were contested by the other side, but they were enough to show that the matter is not as straightforward or as simple as the defendants would have us believe. Therefore, Taraks inaction during the three months and the omission of either side to initial the draft point clearly, at the lowest, to hesitancy on Taraks part. It may be he wanted his lawyers to examine his position or it may be he refused to have anything to do with it. It is just possible that there were negotiations, but on those broad facts I am not prepared to believe the witness when he tells us, or rather suggests, that the parties reached finality. It would in any event be dangerous to believe a witness in circumstances like this. But when the defendants deliberately withheld from the court that assistance which is its due I can only conclude that their case was too shaky to stand further proving. On these broad grounds alone I would hold that the agreement is not proved.(46) Much was made in argument about the rule regarding the weight to be given to the estimate of the judge who saw and heard a witness. I do not doubt the soundness of the rule but it can be pushed too far as their Lordships of the Judicial Committee pointed out in Virappa v. Periakaruppan(1). In the present case, the learned Judge who tried the case believed Kedar not because of his demeanour but because the learned Judge considered that his story was inherently probable. That, however, is a matter which the learned appellate Judges were in as good a position to appreciate as the learned trial Judge. If probability is to be the test, then the conduct of Tarak suggests that it is very improbable that he could have agreed.(47) That leaves at large the nature of the relief to which the plaintiff is entitled. In the view I take, there being no contract to the contrary, the plaintiffs only remedy is under section 92 of the Transfer of Property Act read with section 82. The question is, has his suit been so framed ?(48) The plaintiff has claimed separate personal reliefs against the defendants. As there is no personal covenant as between the mortgagors or any contract to the contrary, that relief cannot be granted.(49) The plaintiff has also asked for a declaration of charge and for a decree under Order XXXIV, Civil Procedure Code. The declaration of charge standing by itself is superfluous although Order XXXIV, rule 2 (1) does require that the decree in a mortgage suit shall declare the amount so due at the date of the decree. But reading the two reliefs together, I am of opinion that though the claim is inartistically worded the plaintiff has in substance asked for a mortgage decree up to a limit of Rs. 40,253-11-10 with interest against each defendant. No other kind of decree could be given under Order XXXIV. Therefore, though he has not used the word subrogation he has asked in substance for the relief to which a subrogee would be entitled under the Transfer of Property Act.(50) I would be slow to throw out a claim on a mere technicality of pleading when the substance of the thing is there and no prejudice is caused to the other side, however clumsily or inartistically the plaint may be worded. In any event, it is always open to a court to give a plaintiff such general or other relief as it deems just to the same extent as if it had been asked for, provided that occasions no prejudice to the other side beyond what can be compensated for in costs.(51) In the circumstances, in the absence of agreement between the parties as to the figures, I would remand this case to the High court for (1) an enquiry regarding the sum paid by the plaintiffs father for satisfaction of the mortgage dated the 12/06/1936, (2) for the interest due on that sum at the contract rate in the mortgage from the date of payment to the date of decree, (a) lot the values of the various properties mortgaged at the date of the mortgage.(52) When the figures are ascertained, I would direct that the liability of each defendant be ascertained separately in the manner prescribed by section 82, Transfer of Property Act.(53) In. the event of this liability exceeding Rs. 40,253-11-10 with interest against either defendant, I would direct that his liability be reduced to Rs. 40,253-11-10 plus interest.(54) When these figures are ascertained, I would direct that a mortgage decree for sale be drawn up in the usual way affording either defendant the right to redeem the whole of the balance of the property (excluding the plaintiffs) for the aggregate sum due as above and, in default of payment, limiting the liabilities of each item of property to the sum rateably due on it under section 82.