Ram Rangini Chanda Chowdhurani And Another vs Chandra Benode Pal And Others

The Appellants contend that the Subordinate Judge is wrong in law in directing them to pay to the Plaintiffs the sum of Rs. 713-4-6 pie by way of contribution towards a mortgage debt. The suit was brought to set aside as fraudulent a howla pottah granted by Defendant No. 11 to the Appellants Defendants Nos. 4 and 10, or in the alternative to recover the money claimed by way of contribution, as representing the share of the mortgage debt paid off by the Plaintiffs and proportionately chargeable upon the property which is the subject of the howla.

The Subordinate Judge reversing the decree of the Munsif which set aside the howla pottah as fraudulent, has found that the pottah is a good and genuine document, that the transaction was completed before the Plaintiffs'' kobala was executed, and that the howla could not, therefore,, be set aside. But, without giving any, reasons; he has held that the Plaintiffs are entitled to recover the sum claimed from the lands of the howla, by way of contribution towards the mortgage debt. It is clear from the deed of conveyance to the Plaintiffs that the mortgage debt was to be paid off by them with the money which was the consideration for it. It is a mistake to suppose that the Plaintiffs purchased the equity of redemption as the Court seems to find. What they purchased was the property free of the mortgage debt, which was to be discharged by them out of the price of the property which in ordinary course would have gone to the vendors. At the time of the purchase, there was no mortgage outstanding, and consequently no equity of redemption to purchase. Under these circumstances, it is clear that the Plantiffs had no claim to recover from the Appellants anything by way of contribution.

The Respondents have peferred a cross-appeal against that part of the judgment of the Subordinate Judge which reverses the Munsif''s decision as regards the genuineness of the howla grant, and the ground taken is that no proper judgment on this point has been recorded. The Munsif, after going very fully into the transaction, found that the document had been antedated and was fraudulent. The Subordinate Judge has, in a few words, reversed the decision. Although it cannot be said that he has given no reasons for doing so, we must say that his judgment, reversing the decree of the first Court on the substantial issue in the case, is not a satisfactory judgment, and that the contentions of the parties have not been dealt with as fully as they ought to have been. It is clearly the duty of an Appellate Court, reversing the judgment of the first Court, to state clearly and fully the grounds on which it does so, and the more especially when the first Court has gone so fully into the facts and the reasons for the conclusion arrived at.

We are not, however, in a position to interfere or to express any opinion on the facts. The appeal must succeed, and the decision as regards the howla being in favour of the Appellants the Plaintiffs'' whole suit fails, and must be dismissed with costs. The cross-appeal is also dismissed.