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TMI Blog1951 (12) TMI 13X X X X Extracts X X X X X X X X Extracts X X X X ..... ee for sale on the 17th of February, 1939, for a sum of ₹ 89,485-12-9 plus costs. The decree was made final on the 22nd of December, 1989. In execution the mortgagee proceeded against the property of the plaintiff alone (as Tarak's 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. 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 ₹ 1,50,000. It was directed that the consideration should first be applied in payment of the claim and costs and that the decreeholder 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. 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 ₹ 97,116-11-0 was paid to the Mil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of these earlier liabilities was only ₹ 13,259-2-4. Therefore, the only benefit they got out of this ₹ 80,000 was to that extent. The plaintiff's father Tarak on the other hand benefitted to the extent of ₹ 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. 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 join ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ately own properties of unequal value, Blackman, Whiteacre and Greenacre. Let us assume that their values at the material date are ₹ 30,000, ₹ 20,000 and ₹ 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 ₹ 2,000, B's to ₹ 3,000 and C's to ₹ 5,000. In order to clear off these debts, A, B and C jointly mortgage their three estates for ₹ 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 ₹ 10,000. At the date of redemption the mortgage debt has swollen to ₹ 15,000. A alone redeems by selling Blackacre, which is his separate estate, to the mortgagee for ₹ 35,000 that being the value of Blackacre at the date of redemption. ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reement 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 ownership 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 benefi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... siderations 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 difference. The law regarding this was examined by me at some length in the Nagpur High Court in Shamjibhai v. Jagoo Hernchand Shah (I.L.R. 1949 Nag. 381 at 586-588, and 598). 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 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 assistance 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 sui ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 35 at 37.). 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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