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Issues Involved
1. Liability for Contribution 2. Basis for Computing Contribution 3. Applicability of Section 43 of the Contract Act 4. Applicability of Sections 82 and 92 of the Transfer of Property Act 5. Existence of Special Agreement 6. Relief and Remedies Detailed Analysis 1. Liability for Contribution The plaintiff, the son of a mortgagor, brought a suit for contribution against the co-mortgagors. The plaintiff claimed that he paid a total of Rs. 1,19,116-11-0 in satisfaction of the mortgage and sought to recover the balance from the defendants, asserting that each co-mortgagor should contribute equally. The defendants did not deny their liability to contribute but challenged the basis on which it was to be computed. 2. Basis for Computing Contribution The defendants argued that their liabilities should be calculated based on a special agreement, which stipulated that their respective liabilities should be proportionate to the benefit derived by each from the mortgage. The trial court initially held that this agreement was proved, but the appellate court disagreed. 3. Applicability of Section 43 of the Contract Act The plaintiff contended that Section 43 of the Contract Act applied, which states that joint promisors must contribute equally unless a contrary intention appears from the contract. The court noted that while this would be the clear conclusion if no other provisions of law were considered, the matter also involved the Transfer of Property Act, which has specific provisions regarding mortgages. 4. Applicability of Sections 82 and 92 of the Transfer of Property Act Section 82 of the Transfer of Property Act states that properties subject to a mortgage must contribute rateably to the debt secured by the mortgage in the absence of a contract to the contrary. Section 92 provides that any co-mortgagor redeeming the property has the same rights as the mortgagee against the other mortgagors. The court held that these sections must apply over Section 43 of the Contract Act, as they specifically deal with mortgages. 5. Existence of Special Agreement The court examined the evidence regarding the special agreement alleged by the defendants. The only evidence was the testimony of the first defendant, Kedar, who claimed the agreement was oral and had not been put in writing due to the death of Tarak. The court found this testimony unreliable, noting the absence of the second defendant, Naku, from the witness box and the fact that Tarak had previously sued his brothers for partition, indicating a lack of trust. The court concluded that the special agreement was not proved. 6. Relief and Remedies The plaintiff sought a declaration of charge and a decree under Order XXXIV of the Civil Procedure Code. The court interpreted this as a request for a mortgage decree up to a limit of Rs. 40,253-11-10 with interest against each defendant. The court decided to remand the case to the High Court for an enquiry regarding the sums paid by the plaintiff's father for satisfaction of the mortgage, the interest due, and the values of the various properties mortgaged at the date of the mortgage. The liability of each defendant would be ascertained separately according to Section 82 of the Transfer of Property Act. If the liability exceeded Rs. 40,253-11-10 with interest, it would be reduced to this amount. A mortgage decree for sale would then be drawn up, allowing either defendant to redeem the whole of the balance of the property. Costs The court directed each side to bear its own costs in the appeal, noting that the plaintiff had repudiated Section 82 and relied on Section 43 of the Contract Act, while the defendants' case had failed on the facts. The costs incurred in the lower courts and any further enquiry would be determined according to the final result of the litigation. Separate Judgment FAZL ALI J. concurred with the judgment.
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