Babu Bhekdhari Singh vs Rai Bahadur Baijnath Goenka

It is not necessary to set down in fall the facts of this case for it is, in our opinion, necessary that there should be a remand.

The grounds upon which the learned Judge has dismissed the plaintiffs'' suit are that in the original suit upon a mortgage it was decided that the properties should be sold in a certain order, and he takes that as a justification for the proposition that by that decision the liability of the various mortgagors was settled, the intention being that if the sale of the property of one of the mortgagors satisfied the decree, the property of the remaining mortgagors should be released from all liability whatsoever. It is by no means clear that there was in the decision of the Courts in the suit upon the original mortgage any such intention. It may be that the Courts trying a mortgage suit may think it equitable that if one property is sufficiently valuable to satisfy the mortgage, the sale of other properties should be avoided, but a direction to this effect is not necessarily a decision that all claims to contribution as between the various mortgagors will hereafter be barred. If the Transfer of Property Act be alone considered, the only circumstance justifying the release of properties covered by a mortgage from bearing each its share of the liability under the mortgage, is that as between the parties to the mortgage there has been a contract to the contrary. We doubt very much whether a Court trying the suit on the mortgage could enter into any Question of liability to contribution in the event of one of those properties being in the end called upon to bear the whole burden. The case cited by the learned Judge, Satya Kripal Bandopadhya and another, Executors to the Estate of Satya Doyal Bandopadhya Vs. Gopi Kishore Mandul and others , is based upon entirely different circumstances. The learned Judges were of opinion that in the litigation upon the mortgage itself the parties had by arrangement allowed the whole liability to rest on one property in the event of that property being able to bear the whole burden. There was certainly nothing in the nature of an agreement in the litigation upon the mortgage in the case before us. We must, therefore, remand this case for retrial. It has been dismissed on the preliminary issue, and we do not think that the reasons given for that dismissal were correct. At the same time we do not wish to fetter any Divisional Bench before whom this case may come hereafter, by any detailed expression of our views upon the law, and would say only that before it can be held that the properties have been released from all liability to contribute, there mast at least be in the previous proceedings an indication of an intention in the mind of the Court to release them from such liability. The Court of first instance will primarily be required to ascertain what was the value of each of the properties mortgaged at the time of the mortgage transaction. It will then ascertain what sum was paid by whom to satisfy the mortgage and will call upon the various properties to contribute in proportion to the values ascertained, unless it be found that there was an agreement to the contrary, or a clear decision in previous litigation to the contrary, or other equitable reasons for releasing them from liability.

The decree made by the District Court is set aside and the case remanded for retrial.

The appellants are entitled to a refund of the Court-fee paid on this appeal.