BosE J.-This is a v. Hari Lal? Sea~

BosE J.-This is a defendant's contribution brought by the son the co-mortgagors. appeal m a suit for of a mortgag<?r againsr The parties are related as below :- Balai Lall Seal (died 1917) . I Meghamala Dass• (died 1945) I I . I BeJoy Lall (D.23-5-33) I Jugal Lall . I B1swa Lall Tarak Lall (D. Nov. 1936) .1 Han Lall (Plff.) I Kedar Lall Deft I (Born 22-11-1907) • . I Naku Lalf Deft. 2 (Born 7-2-1910} the plaintiff's The mortgagors were father Tarak Lall and Tarak's two brothers Kedar and Naku. The 1936, · m mortgage was executed on the 12th a consideration of favour of one Mst. Gyarsi for Rs. 80,000. For convenience I will call the suit mortgage though this is not a suit on the mortgage. June, In executing The mortgagee sued in the year 1938 and obtained the 17th of February,. for sale on a preliminary decree 1939, for a sum of Rs. 89,485-12-9 plus costs. · The decree was made final on the 22nd of December, 1939. (as Tarak's son) and, property of the execution, assigned her during rights in the decree to the Hooghly Flour Mills. The Mills continued the 'and on the 11th of March, 1943, the claim was satisfied in this way. the mortgagee proceeded against the plaintiff alone the pendency of execution An order of the Court was obtained sanctiol}ing 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 Rs. 1,50, 000. It wa• directed that the consideration should first be applied in payment of the claim and costs and that the decree- holder 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 judg- ment debtor Hari Lall (present plaintiff) was a minor. > ...;. SUPREME COURT REPORTS 181 This was done and 20, Round Tank Line, was con- the present - plaintiff to the Hooghly Flour veyed. by Mills on the 18th of March, 1943. Out of the considera- tion a sum of Rs. 97,116~11-0 was paid to the Mills full satisfaction of the claim ·and costs then outstand- ing. The Mills executed a reconveyance of the rest of · the properties to the -mortgagors in ;elease of the mort- 1951 Kidar Lall Seal and Another v. Hari Lal? Sea~ Bose f. gage on the same day. In addition to this Rs. 97,116-11-0, further sums of Rs. -i4,400 and Rs. 8,100 had ·also been paid before - the dates of these transactions. These sums were paid by a· Rei; eiver who had been appointed by the Court penqente lite. These sums came out of the rents which 1 t!J.e Receiver obtained from t~e plaintiff's property, 2() Round Tank Lane. . The plaintiff says that· in this way he paid a total the mortgage. to Rs. 39,872-3-8. the balance of the two defendants and that each sum namely, of Rs. 1,19,116-11-0 in satisfaction of His one-third share in this comes He claims that he is entitled to receive R~: 79,744-7-4 from of them is liable for a half of Rs. 39,872.J-8 . In addition to _this t11e plaintiff had incurred amounting to Rs. 1,144-8-6 in resisting Mst. Gyarsi's clai_m 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 accordingly comes to Rs. 40,253-11-10. In addition to this the plaintiff as~ed for~ that the properties mentioned in (1) "a declaration . . . . belonging to the defendants stand Schedule - 'A' the sum of Rs. charged with repayment of 80,507-7-8 -being the aggregate amount due and payable by the two defendants," and (2) "Decree under Order XXXIV of the Civil Pro- cedure Code in proper 'form." Schedule A contains a list of the rest of the mort- exclusively gaged properties which belong defendants, 182 SUPREME COURT REPORTS [1952] !9'1 the basis to contri- and Another ·· ute in equal s ares towards payment of the mortgage It will be seen that the plaintiff claims on liable that each of the three mortgagors h · Kidar Lall Selli b v. debt. Hari Lall Seal Bose/. - !''-- • .... • The defendants did not deny their liability to con- tribute. They only challenged the basis on which to be computed. They pleaded a special agree- ment between Tarak Lal and themselves under which their liabilities were to be calculated 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 liabilities was only Rs. 13,259-2-4. Therefore, Rs. 80,000 was to that extent. The plaintiff's father Tarak on the other hand benefitted to the extent of Rs. 53,481-ll-4. They therefore the date of the suit mortgage that their respective liabilities as between themselves should be proportionate benefit derived by each as above. the only benefit these earlier got out of agreed Sinha J., who tried the suit on the Original Side of the Calcutta High Court, held that the agreement was proved. On appeal learned Chief Justice of the High Court and Chatterjee J. disagreed and held that it was not. As I agree with learned appellate Judges for reasons which I shall give hereafter, it will be necessat y 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 concern- ed here with the question of principles ; 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 orginally joint proper- ties, but in the year 1932 there was a partition which reason of a suit filed by Tarak was compelled by family S.C.R. SUPREME coURr REPORTS \ 183 against his brothers and mother. The upshot was that the properties were divided as follows :- (1) Bejoy, Kedar, Naku the mother Meghamala obtained Chittaranjan Avenue. 1951 Kidar Lall Seal and Another v. (2) Tarak (plaintiff's father) obtained 16 Round Hari Lall Seal Tank Lane and 20 Round Tank Lane. Bo"/. (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 jained in it and they ·mort- gaged 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 . Chitta.., ranjan, Strand, Dum Dum and 20 Round Tank Lane for Rs. 5,000. The n;iortgagee was Binod Behari Sen. In this tQ Binode Bejoy and Tarak again mortgaged their 2/5 share the same items of propert.y for Behari Sen and Kunja Behari Sen. The third was on the 28th January, 1927. R~. 7,000 All three sets of mortgagees, or their representatives, respective mortgages and suits on their instituted obtained final decrees. Bejoy aied on the 23rd of May, 1933, leaving a . son Jugal. · On the 12th of June, 1936, came whatJ have called three brothers, the suit mortgage executed by the Tarak Kedar and Naku, for Rs. 80,000. The proper- ties mortgaged were- ( l) 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 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 I 1951 Kidar Lall Seal and Another v. R rn·i Lall Seal Bose /. 184 SUPREME COURT REPORTS [19521 11,519-11-0 m later decretal charge ; Rs. 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 Tarak1. I have taken these figures from the judgments of the High I understand some of the details are disputed, Court. so I make it clear that I am not setting out the deci- sion of this Court the details but only regarding giving an oyerall picture. terms, comes Shorn of overburdening detail the. problem, reduced to this. Three persons its simplest A, B and C separately own properties of unequal value, Blackacre, Whiteacre and Greenacre. Let us at the material date are assume that their values 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 mailers not for present purposes whether those debts are secured on propertks or not because a time must come when their separate liabilities as amongst 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. themselves In order to clear off these debts, A, B and C jointly mortgage their three estates for Rs. 10,000, the 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 Rs. 10,000. responsibility m respective shares the - to Rs. 15,000. A alone redeems by At the date of redemption the mortgage debt has swollen selling Blackacre, which is his separate estate, the mort- gagee 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 1s that event B that the three contribute equally. would pay A Rs. 5,000 and C would pay Rs. 5,000. In 'r • • ... 1951 Kidizr I.All Seal 11ntl A not her Y, Hii'ri Llll Seal Be>s# /. . '-{ :S.C.R. SUPREME COURT REPORTS 185 A second solution is that they pay in proportion to. ·the ex'ent of the benefits derived. In that event B's . · share would be 3/10 of Rs. 15,000, 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 Iri that event :the values of the properties mortgaged. B would have to pay 2/6 of Rs. 15,000, Rs. 5,000, and C 1/() of Rs. 15,000 which .Rs. 2,500 . . The problem is to know which of these three solu- In the absence of other considerations, tions to apply. the inost equitable solution is obviously second. But the matter is not as simple as that.· There are i::er~ · tain statufory provisions which must first be examined. the. plaintiff-respondent f0r contended that section 43 of the Contract Act applied. He relied on the following provision :- learned counsel The - ..... "Each of two or more joint promisors may compel .every otlrer· 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 joilit pfoinisors makes .default in such contribution, the 'remaining joinf pro. misors must bear the loss arising from such default in equal shares." • contrary The argument is that Unless i intention .appears from "the contract" the loss hiilst be oorne equally. It was cohfehded, imi:l with that I agree, that the words "tlie contract'' can only refer to the main the prdfnis(>fs on the one side and C!'.>fltiatt between the promisee on the otller. That contract in this ca8e is the suit mortgage. There is no contract the con- it was contended, trary in the document, therefore, · the· section intist apply. That of course would be the dear, logical · and simple conclusion if there were no . -Other provision of law · dealing here with !1 mortgage . and so we . have also i:o look to the provisions of the Transfer of Property Act. to consider. But we 1951 Kidar Lall Seal and Another v. H ari Lall Seal Bose/, 186 SUPREME: COURT REPORTS [1952} Incidentally, if this argument logical conclusion it would exclude any collateral or subsequent agreement between the promisors inter which does not appear in the main contract. But we need not enter into that here. is pushed The sections of the Transfer of Property Act which concern us are !J2 and 92. The first confers a right of contribution. The seco!J.d 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 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, contribute rateably mortgage .......... " secured by the debt liable That is the position here. Next I turn to section 92. That runs- " ...... any co-mortgagor shall, on redeeming pro- perty 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 AcJ:., section 43 of the Contract Act and what I might term the principle 9f beneficial, as opposed to propor- tionate or equal, distribution of liability. I am of opinion that the second solution adumbrat- ed 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 to equitable principles how- ever fair they may appear to be at first sight. recourse 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. - • • S.C.R. · SUPREME COURT REPORTS - 187 in India. So also equitable estate has no application the "right of redemption· their Lordships referring held in Mohammad Sher Khan v. Seth Swami Dayal(1) ·that the right is now governed by statute, namely sec- tion 60, Transfer of Property Act. Sulaiman C.J. (later a Jgdge of the Federa~ Court) ruled out equitable considerations in the Allahabad High Court in matters of subrogation under sections 91, 92, 101 105, Transfer of Property Act, in Hira Singh v. fai Singh(2) and so did· Stone C.J. and I in the Nagpur High Court in Taibai v. Wasudeorao (3). In the case of section 82 the Privy Council held in Ganes.h Lal v. Charan SinghC) 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 autho- rity and prin,.:iple the decision must rest solely on whatever section is held to apply. " I - 1951 Kidar Lall :red and A.nother • v. Hari Lall Seal Bose /. to mortgages. As 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 ~ontracts generally. ' 82 Section 'contribution applies the right to here- arises out of a mortgage, I am clear that sec- tion 82 must exclude section 43 because when there is a general law and a special law dealing with a parti- cular 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 mortgage, .'.fransfer of Property Act read with the Civil Pro- • cedure Code. statutory provisions. I am clear we cannot travel beyond these is now statutory and is embodied in Now, when parties enter into a mortgage they know, or must be takien to know, that the law of mortgage provides for this very question of contribution. It con- fers rights on the mortgagor who redeems and directs th~t, in the absence of a contract to the contrary, he (1) (1922) 49 I.A. 60 at 65. (2) A.LR. 1937 All. 588 at 594. 6-3 s.c. fndfa/71 (3) I.L.R. 1938 Nag. 206 at 216.~ ( 4) (1930) 57 I.A. 189. \951 J(idar 1"11 Seal and Another v. Hari 1"11 Seal Bou f. 188 SUPREME COURT REPORTS [1952] these provisions should be abrogated shall be reimbursed in a particular way out of parti- cular properties. The parties are at the liberty to vary these rights and liabilities by special contract to contrary but if they do. not do so, I can see no reason 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 therefore section 43, except where there is a contract to the contrary. personal liability It was suggested that the rule is inequitable and will operate harshly in cases like the present. But the It is open to remedy lies in the parties' own hands. If they do them to make a contract to the contrary. not, then the law steps in and makes statutory It is not for judges to to which effect must be given. cousider whether that the best possible solution but the rule at any rate obviates the necessity of roving enquiries into the objects of a borrowing and application of the funds. On an overall basis perhaps as good as any other. But that hardly matters. The rule is there and full effect must be given to it. 'r • - The learned counsel the plaintiff-respondent that the defendants are sh1,1t 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 I am not impressed with this objection. On plaintiff. the facts set out by the plaintiff it is evident that he is entitled to contribution. The method of computa- tion is a matter of law and it apply the law to the facts stated and give the plaintiff such relief. as is appropriate to the case. is for judges I turn now to the question of fact, the special agree- the defendants. The only evidence ment pleaded by in support of it is that of the first defendant Kedar. the agreement was an oral one According to him, 1951 Kidar Lall Selll and Another v. Hari Lall Seal Bose]. S.C.R. SUPREME COURT REPORTS 189 registra- though the parties contemplated writing and tion. · His explanation for lack of any writing is· this. He was asked whether any thing was put down in writing and he replied :- "No, nothing was done then, but there was understanding 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 -connection with the adjustment ?" registered m and he replied "Yes". He also tells us. that the parties regarded the matter as confidential and so only three It is ·persons were present, Tarak, Naku and himself. to be observed that Nak\1.1, who is the second defendant, has not entered the box. . after the event about a Stopping there, it is evident that we have to rely on the memory · of a very interested person speakin-g nearly thirteen ye<irs 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 writing · is in contemplation is a difficult and complex · one involving delicate con~ -siderations of much nicety even when the preliminaries .a.re 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 Hemchand Shah(1). How much greater are the diffi- culties when we do JlOt know the exact words parties used and have to delve into the mind of a dead man (T arak) 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 (I) I:L.R. 1949 Nag. 381 ·at 586-588, and ar 598. / 190 SUPREME COURT REPORTS [19521 1951 Kidar Lall Se•/ and Another v. Hari Lall Seo/ Bose /. witness is a hesitant and reluctant one, as his exairu- some points ~ nation discloses, and even evasive 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. 'r 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 argu- ment that 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 registration. 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. - facts is tells us so. He I can draw from Now we know that Tarak was in Calcutta about three months :tfter the date of the alleged agreement. We also know that Kedar was most anxious to have such an agreement, for 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 in- ference that Tarak either refused to agree or had not make up his mind. The figures put forward by the defendants were con- tested 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 the matter is not as straightforward or as simple Therefore, the defendants would have us believe. Tarak's inaction during 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. the three months -i- S.C.R. SUPREME COURT REPORTS 191 It is just possible that there were negotiations, but on those broad facts I am not prepared to believe witness · wheri he tells us, or rather suggests, that the event be parties reached finality. in circumstances like oangerous ' to believe a witness this. But when the defendants deliberately withheld from the Court that .assistance which 'is its due I can -0nly conclude that their case was loo shaky to stand fillther proving. On these broad grounds alone I would the agreement is not proved. hold that It would in 1951 Kidtrr Lall Seal 1tt1,i Another v. Han' Lall Seal Bose/. I do not doubt Much was made in argument about the· rule regard- ing the weight to be given to the estimate of the judge who saw and heard a witness. soundness of th~ rule but it can be pushed too far as their Lordships of the Judicial Committee pointed ou~ in Virappa v. Periakaruppan(1). In the present -case, the learned Judge who tried the case believed Kedar not because of his demeanour but because the learned inherently prob- Judge 'considered that his story · was -able. That, however, is a matter which the learned ·appellate Judges were in as good a position to appreciate If probability is . to be the as the learned trial Judge. ·test, then the conduct of Tarak suggests that it is very improbable that he could hav_e agreed. '( ' is entitled. That leaves at large the nature of the relief fo which the p\laintiff 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 ? In the view I ' . The plaintiff has claimed separate personal reliefs against the defendants. As there is no personal_ conven- ant 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 Pro- cedure 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. 1951 Kitlar Lal}. Seal anti Another v. Hari Lall Seal Bose /. 192 SUPREME COURT REPORTS [1952} "declare the amount so due" at the date of the decree. But reading th, two reliefs together, I am of opinion that though- the claim is inartistically worded the plain- tiff has in substance askea 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 askied in substance for the relief to which a subrogee would be entitled under the Transfer of Property Act. 'r substance of I would be slow to throw out a claim on a mere technicality of pleading when thing is there and no prejudice is caused to the other side, however clumsily or inartistically the plaint may In any event, it is always open to a court be worded. to give a plaintiff such general or other relief as deems just to the same extent as if it had been asked for, provided that occasions no prejudice the other side beyond what can be compensated for in costs. In the circumstances, in the absence of agreement I would remand between the parties as to the figures, this case to the High Court for ( 1) an enquiry regard- ing the sum paid by the plaintiff's father for satisfac- tion 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, (3) for the values of the various properties mortgaged at the date ef the mortgage. When the figures are ascertained, I would direct liability of each defendant be ascertained separately in the manner prescribed by section 82, Transfer of Property Act. In event of would direct that his liability be 40,253-11-10 plus interest. liability exceeding reduced Rs. Rs. \Vhen these figures are ascertained, I would direct the right to the property l that a mortgage decree for sale be drawn up usual way affording redeem the whole of 40,253-11-10 with interest against either defendant, either the balance of defendant S.C.R. SUPREME COURT REPORTS 193 (excluding the plaintiff's) for as above and, liabilities of each item of property to the sum due on it under section 82. the aggregate sum due in default of ·payment, limiting the rateably 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 sub- rogation in his plaint even in the alternative. The defendants, on the other hand, set up a case which ·has I would, therefore, direct each failed on the facts. side to bear its own costs in this appeal. 1951 K1d'ar Lall !it!tlt 11t1ti Another v. Hari Lall Si!al Bose I As regards the costs incurred in the Courts below and any costs which may be necessitated by a further enquiry, they will be determined according to the final result of the litigation and with due regard to all matters bearing on the question of costs. ' FAZL ALI J.-I agree. Case remanded. Agent for the appellant : M. S. K. Sastri Agent for the respondent: Ganpat Rai. .. SURAJPAL SINGH AND OTHERS ti. THE STATE [SAIYID FAZL ALI and VMAN BosE JJ.J 19$1 Dec. 2(,, Criminal Procedure Code (Act V of 1898), s. 417-Appeal again.rt acquittal-lnterfert:nce-Guiding principle. It is well' settled that in an appeal under s. 417 of the Criminal Procedure Code, the High Court has full power to review ·the evidence upon which the order of· acquittal was foonded. But it is equally well settled that the presumption of innocence of accused is further reinforced by his acquittal by the trial Court and' the findings of the trial 'Court which had the aqvantagc of seeing the witnesses and hearing their evidence can be reversed only foc very substantial and compelling reasons • ..