dedol-hf/india-case-legal-rag huggingface dataset:
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  accord-
ingly  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,
   24
182
   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 comput-
ed.  They ,pleaded a special agreement between Tarak Lal and
themselves  under which their liabilities were to be  calcu-
lated 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  satisfaction  of the defendant's portion  of  these
earlier liabilities was only Rs. 13,259-2-4. Therefore,  the
only  benefit they got out  of  this Rs. 80,000 was to  that
extent.   The  plaintiff's father Tarak on  the  other  hand
benefitted to the extent of Rs. 53,481-11-4.  They therefore
agreed  at the date of the suit mortgage that their  respec-
tive liabilities as between themselves should be proportion-
ate to the benefit derived by each as above.
     Sinha  J., who tried the suit on the Original  Side  of
the Calcutta High Court, held that the agreement was proved.
On  appeal the learned Chief Justice of the High  Court  and
Chatterjee  J.  disagreed and held that it was  not.   As  I
agree with the  learned appellate Judges for reasons which I
shall  give hereafter, it will be necessary to set  out  the
further  facts.  But I need not do so in any detail as  they
are given in full in the two judgments of the High Court. We
are  only concerned here with the question of principle;  so
it  will  be more convenient to reduce the  problem  to  its
simplest terms.
We are concerned here with four items of property  which
I shall term Chittaranjan Avenue, Strand Road, No. 16  Round
Tank  Lane  and 20 Round Tank Lane.  These  properties  were
originally  joint  family properties, but in the  year  1932
there  was  a partition which was compelled by reason  of  a
suit filed by Tarak
183
against  his  brothers and mother. The upshot was  that  the
properties were divided as follows: -
    (1)  Bejoy,   Kedar,  Naku  and  the   mother  Meghamala
obtained Chittaranj an Avenue.
    (2)  Tarak (plaintiff's father) obtained 16  Round  Tank
Lane and 20 Round Tank Lane.
(3) Kedar, Naku and Biswa Lall obtained Strand Road.
    Before  this partition there were three  mortgages:  The
first  of these was executed on the 16th of June, 1925.  All
five  brothers  joined in it and they mortgaged  the  Strand
Road  property for Rs. 10,000. This was in favour of  Bhuvan
Chandra Bhur.
    The  second  was on the 11th of October, 1926.  In  this
Bejoy  and Tarak mortgaged their 2/5 share in  Chittaranjan,
Strand,  Dum Dum and 20 Round Tank Lane for Rs.  5,000.  The
mortgagee was Binode Behari Sen.
    The third was on the 28th January, 1927.  In this  Bejoy
and Tarak again mortgaged their 2/5 share in the same  items
of  property  for Rs. 7,000 to Binode Behari Sen  and  Kunja
Behari Sen.
    All three sets of mortgagees, or their  representatives,
instituted suits on their respective mortgages and  obtained
final decrees-
    Bejoy  died  on  the 23rd of May, 1933,  leaving  a  son
Jugal.
On  the 12th of June, 1936, came what I have called  the
suit  mortgage executed by the three  brothers,Tarak,  Kedar
and Naku, for Rs. 80,000. The properties mortgaged were-
   (1) the shares of Kedar and Naku in   Chittaranjan
Avenue and 16 Round Tank Lane;
    (2) 20 Round Tank Lane which had been allotted to Tarak;
    (3) the reversionary interest of all three in the  share
allotted to the mother.
    The   consideration  of  Rs.  80,000  was  expended   as
follows:Rs. 29,667-10-0 was paid by Tarak, Kedar and Naku in
satisfaction of the first mortgage and the
184
later  decretal charge; Rs. 11,519-11-0 in  satisfaction  of
the second and Rs. 13,502-14-0 in satisfaction of the third.
The  balance of Rs. 25,310 is alleged by the  appellants  to
have  been  retained by Tarak.  I have taken  these  figures
from the judgments of the High Court.  I understand some  of
the  details are disputed, so I make it clear that I am  not
setting  out the decision of this Court  regarding  the  de-
tails but only giving an overall picture.
    Shorn  of overburdening detail the problem,  reduced  to
its simplest terms, comes to this. Three persons A, B and  C
separately  own  properties  of  unequal  value,   Blackman,
Whiteacre and Greenacre. Let us assume that their values  at
the material date are Rs. 30,000, Rs. 20,000 and Rs.  10,000
respectively.
    A, B and C, acting in various combinations from time  to
time,  incur  debts.  It matters not  for  present  purposes
whether  those debts are secured on these properties or  not
because a time must come when their separate liabilities  as
amongst  themselves have to be ascertained and  apportioned.
Let  us  assume that when that is done,  A's  responsibility
extends to Rs. 2,000, B's to Rs. 3,000 and C's to Rs. 5,000.
    In  order to clear off these debts, A, B and  C  jointly
mortgage  their  three  estates for Rs.  10,000,  the  total
aggregate sum due at the date of the mortgage from the three
of  them. There is no contract between them, either  in  the
mortgage  deed  or  otherwise,  regarding  their  respective
shares  of  responsibility  in the Rs. 10,000.
    At the date of redemption the mortgage debt has  swollen
to Rs. 15,000.  A alone redeems by selling Blackacre,  which
is his separate estate, to the mortgagee for Rs. 35,000 that
being the value of Blackacre at the date of redemption.  Rs.
15,000  of this is applied in satisfaction of  the  mortgage
debt  and the balance of Rs. 20,000 is retained by A.   What
are A's rights as against B and C ?
Three solutions readily suggest themselves.  One is that
the  three contribute equally.  In that event B would pay  A
Rs. 5,000 and C would pay Rs. 5,000.
185
    A second solution is that they pay in proportion to  the
extent  of  the benefits derived.  In that event  B's  share
would be 3/10 of Rs. 15,000, that is to say, Rs. 4,500.  and
C's would be 5/10 of Rs. 15,000, that is Rs. 7,500.
A third solution is that they pay proportionately to the
values  of the properties mortgaged. In that event  B  would
have to pay 2/6 of Rs. 15,000, that is Rs. 5,000, and C  1/6
of Rs. 15,000' which come to Rs, 2,500.
    The problem is to know which of these three solutions to
apply.  In  the absence of other  considerations,  the  most
equitable  solution is obviously the second. But the  matter
is not as simple as that. There are certain statutory provi-
sions which must first be examined.
The  learned  counsel for the plaintiff-respondent  con-
tended  that  section  43 of the Contract  Act  applied.  He
relied on the following provision :-
    "Each  of two or more joint promisors may  compel  every
other  joint promisor to contribute equally with himself  to
the performance of the promise, unless a contrary  intention
appears from the contract.
If  any one of two or more joint promisors makes default  in
such  contribution, the remaining joint promisors must  bear
the loss arising from such default in equal shares."
    The argument is that unless a contrary intention appears
from "the contract" the. loss must be borne equally. It  was
contended,  and with that I agree, that the words "the  con-
tract"  can  only  refer to the main  contract  between  the
promisors  on  the one side and the promisee on  the  other.
That contract in this case is the suit mortgage. There is no
contract to the contrary in the document, therefore, it  was
contended, the section must apply.  That of course would  be
the  clear, logical and simple conclusion ii there  were  no
other  provision  of  law to consider.  But we  are  dealing
here  with  a mortgage and so we have also to  look  to  the
provisions of the Transfer of Property Act.
186
    Incidentally, if this argument is pushed to its  logical
conclusion  it  would exclude any collateral  or  subsequent
agreement  between  the promisors inter se  which  does  not
appear  in  the main contract.  But we need not  enter  into
that here.
    The  sections  of  the Transfer of  Property  Act  which
concern  us  are  82 and 92. The first confers  a  right  of
contribution.  The  second a right of  subrogation.  I  will
consider section 82 first. It runs :--
    "Where property subject to a mortgage belongs to two  or
more  persons having distinct and separate rights of  owner-
ship  therein,  the  different shares in or  parts  of  such
property  owned  by such persons are, in the  absence  of  a
contract to the contrary, liable to contribute rateably   to
the  debt  secured by the mortgage  .........  "
That is the position here.
Next I turn to section 92. That runs--
    "  ......  any co-mortgagor shall, on redeeming property
subject to the mortgage, have, so far as regards redemption,
foreclosure or sale of such property, the same rights as the
mortgagee whose mortgage he
redeems may have against the mortgagor  ......  "
That also applies.
    Now these provisions at once raise a competition between
sections 82 and 92 of the Transfer of Property Act,  section
43  of the Contract Act and what I might term the  principle
of beneficial, as opposed to proportionate or equal, distri-
bution of liability.
    I  am  of opinion that the  second  solution  adumbrated
earlier  in this judgment, based on equities, must be  ruled
out  at once. These matters have been dealt with by  statute
and  we  are now only concerned with  statutory  rights  and
cannot in the face of the statutory provisions have recourse
to  equitable principles however fair they may appear to  be
at first sight.
    The Privy Council pointed out in Rani Chhatra Kumari  v.
Mohan Bikram (1) that the doctrine of the
(1) (1931) I.L.R. 10 Pat. 851 at 869.
187
equitable estate has no application in India. So also refer-
ring  to  the right of redemption their  Lordships  held  in
Mohammad Sher Khan v. Seth Swami Dayal(1) that the right  is
now  governed  by statute, namely section  60,  Transfer  of
Property  Act.  Sulaiman c.J. (later a Judge of the  Federal
Court) ruled Court equitable considerations in the Allahabad
High Court in matters of subrogation under sections 91,  92,
101 and 105, Transfer of Property Act, in Hira Singh v.  Jai
Singh(2)  and  so did Stone C.J. and I in  the  Nagpur  High
Court in Taibai v. Wasudeorao (3). In the ease of section 82
the Privy Council held in Ganesh Lal v. Charan Singh(4) that
that section prescribes the conditions in which contribution
is  payable and that it is not proper to introduce into  the
matter  any  extrinsic  principle to  modify  the  statutory
provisions.   So, both on authority and principle the  deci-
sion must rest solely on whatever section is held to apply.
    So far as section 43 is concerned, I am not prepared  to
apply  it  unless sections 82 and 92 can be  excluded.  Both
sections  43 and 82 deal with the question of  contribution.
Section 43 is a provision of the Contract Act  dealing  with
contracts  generally.  Section 82 applies to mortgages.   As
the  right to contribution here arises out of a mortgage,  I
am  clear  that section 82 must exclude section  43  because
when there is a general law and a special law dealing with a
particular matter, the special excludes the general.  In  my
opinion,  the whole law of mortgage in India, including  the
law  of contribution arising out of a transaction  of  mort-
gage,  is now statutory and is embodied in the  Transfer  of
Property Act read with the Civil Procedure Code. I am  clear
we cannot travel beyond these statutory provisions.
    Now,  when parties enter into a mortgage they  know,  or
must be taken to know, that the law of mortgage provides for
this very question of contribution. It confers rights on the
mortgagor who redeems and directs that, in the absence of  a
contract to the contrary, he
(1) (1922) 49 I.A. 60 at 65.       (3) I.L.R. 1938 Nag.  206
at  216.
(2) A.I.R. 1937 All. 588, at 594.    (4) (1930) 57 I.A. 189.
188
shall  be reimbursed in a particular way out  of  particular
properties.  The parties are at liberty to vary these rights
and  liabilities by special contract to the contrary but  if
they do not do so, I can see no reason why these  provisions
should  be abrogated in favour of a section in the  Contract
Act  which does not deal with mortgages.  Slightly  to  vary
the  language of the Judicial Committee it is the terms  and
nature of the transaction viewed in the light of the law  of
mortgage  in India which exclude the personal liability  and
therefore  section 43, except where there is a  contract  to
the contrary.
    It  was suggested that the rule is inequitable and  will
operate  harshly in cases like the present.  But the  remedy
lies in the parties' own hands.  It is open to them to  make
a  contract to the contrary.  If they do not, then  the  law
steps  in and makes statutory rules to which effect must  be
given. It is not for judges to consider whether that is  the
best possible solution but the rule at any rate obviates the
necessity of roving enquiries into the objects of a  borrow-
ing  and the application of the funds.  On an overall  basis
it is perhaps as good as any other. But that hardly matters.
   The rule is there and full effect must be given to it.
    The learned counsel for  the  plaintiff-respondent urged
that the defendants are shut out from relying on section  82
because  that was not their case and the question was  never
raised by them in the High Court. Such reference as there is
to  the section was with reference to an argument  urged  on
behalf  of  the  plaintiff.  I am not  impressed  with  this
objection.,  On  the facts set out by the  plaintiff  it  is
evident that he is entitled to contribution.  The method  of
computation  is a matter of law and it is for the judges  to
apply  the  law to the facts stated and give  the  plaintiff
such relief as is appropriate to the case.
    I  turn now to the question of fact, the special  agree-
ment  pleaded by the defendants.  The only evidence in  sup-
port  of it is that of the first defendant Kedar.  According
to him, the agreement was an oral one
189
though  the parties contemplated writing  and  registration.
His  explanation  for lack of any writing is  this.  He  was
asked  whether anything was put down in writing and  he  re-
plied :-
    "No, nothing was done then, but there was an understand-
ing that it would be done but Tarak went away to  Darjeeling
and  when he came back he died soon after he came  back  and
nothing could be done in writing."
Later, he was asked-
    "Therefore,  you,  contemplated that there  would  be  a
document  which  would have to be registered  in  connection
with the adjustment ?"
    and he replied' 'Yes". He also tells us that the parties
regarded  the matter as confidential and so only three  per-
sons  were  present, Tarak, Naku and himself. It  is  to  be
observed  that  Naku, who is the second defendant,  has  not
entered the box.
Stopping  there, it is evident that we have to  rely  on
the  memory  of  a very interested  person  speaking  nearly
thirteen years after the event about a transaction affecting
some Rs. 80,000.  Nor is it the memory of some simple  event
which might well have fixed itself in his mind. The question
whether and at what stage parties reach finality when  writ-
ing  is  in  contemplation is a difficult  and  complex  one
involving  delicate considerations of much nicety even  when
the preliminaries are all in writing.  The turn of a  phrase
here,  the use of a word there, may make a world of  differ-
ence.  The  law regarding this was examined by  me  at  some
length  in  the  Nagpur High Court in  Shamjibhai  v.  Jagoo
Hernchand  Shah (1).  How much greater are the  difficulties
when  we  do not know the exact words the parties  used  and
have  to delve into the mind of a dead man  (Tarak)  through
the impressions of an interested witness given some thirteen
years after the event.
I find it difficult to accept this version and  consider
it would be dangerous to do so, particularly when the
 (1) I.L.R. 1949 Nag. 381 at 586-588, and 598
        25
190
witness is a hesitant and reluctant one, as his  examination
discloses,  and even evasive on some points; also  when  the
defendants have deliberately withheld from the Court assist-
ance  which it was in their power to render--I refer to  the
absence  of  Naku, the only other person present,  from  the
box.  I am unable to accept this testimony.
    Nor  is this the only point. Despite the  insistence  of
the witness that the parties were on good terms and  trusted
each  other, the fact remains that Tarak found it  necessary
to  institute a suit for partition against his brothers  and
fight it to a finish.  They were not able to arrange matters
amicably.  it  was suggested in argument that  was  probably
because of creditors who could not be persuaded to agree and
it  was pointed out that creditors were joined in the  suit,
but  that is not wholly convincing particularly when  it  is
admitted  that  Tarak was insisting on  writing  and  regis-
tration.
      It  is evident that he, at any rate, was not  prepared
to leave matters as they were and trust to the good faith of
his brothers.
     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  initialled.
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,  Tarak's  inaction  during  the  three
months and the omission of either side to initial the  draft
point clearly, at the lowest, to hesitancy on Tarak's  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.
191
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 assist-
ance  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.
    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  demea-
nour 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.
    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 plaintiff's 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 ?
    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.
    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
(1) A.I.R. 1945 P.C. 35 at 37.
192
"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.
    I  would be slow to throw out a claim on a mere  techni-
cality of pleading when the substance of the thing is  there
and no prejudice is caused to the other side, however  clum-
sily  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.
    In  the circumstances, in the absence of  agreement  be-
tween  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  plaintiff's father for  satisfaction  of  the
mortgage dated the 12th June, 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  mort-
gage.
    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.
     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.
     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
193
(excluding  the  plaintiff's) 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.
    On  the  question of costs.   The  plaintiff  repudiated
section  82  in the course of the arguments  before  us  and
rested  his case on section 43 of the Contract Act, nor  did
he  clearly and unmistakably plead a case of subrogation  in
his plaint even in the alternative.  The defendants, on  the
other hand, set up a case which has failed on the facts.   I
would, therefore, direct each side to bear its own costs  in
this appeal.
    As  regards the costs incurred in the Courts  below  and