# Dec. 18. • Kidar I.All Seal •nd Another v. H ari I.All SeJd Bose /

- **Citation:** [1952] 1 S.C.R. 179
- **Court:** Supreme Court of India
- **Decided:** 1949-09-20
- **Case number:** CIVIL APPELLATE JURismcnoN: Civil Appeal No. 101 of 1950
- **Bench:** SAI~ID F AZL Au, V !VIAN BosE
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/dec-18-kidar-i-all-seal-nd-another-v-h-ari-i-all-sejd-bose-229
- **Pages:** 15

## Headnote

Transfer of Property Act (IV of 1882)1, -ss. 82, 92-lndian Conaract Act (IX of 1872), s. 43-Mortgage-Contribution between comortgagors-Liability to contribute-Whether proportionate to value
.of properties mortgaged, or benefit derived by each mortgagorGeneral and special law-Equitable considerations. •
The right to contribution as between co-mortgagors is governed
!by ss. 82 and 92 of' the Transfer of Property Act and not by
·s. 43 of the Indian Contract Act, inasmuch as s. 43 of the. Contract
Act deals with contracts generally, while ss. 82 and 92 of the Transfer of Property Act specifically deal with the right of contribu-
'tion between co-mortgagors. It is an established principle
that
when there is a general law, and a special dealing with a particular matter, the special excludes the general.
Consequently, in
the absence a contract to the contrary, co-mortgagors are bound
:to contribute proportionately to the value of· the shares or parts
.of the mortgag~d propert¥ owned by them and not in proportion
.to the extent of the benefits derived by each of them.
~s ss. 82 and 92 of the Transfer of Property Act prescribe the
.:onditions in which contribution is payable in India when there
is · a mortgage, it is not proper to. introduce into the matter
.extrinisic principles based on equitable considerations.
CIVIL
APPELLATE
JURismcnoN:
Civil Appeal No.
101 of 1950.
Appeal by special leave from the Judgement and Decree dated the 20th September, 1949, of
the High Court of Judicature at Calcl;ltta (Harries C. J.
and Chatterjee J.) in Appeal No. 46 of 1949 arising
·out of Decree dated the 31st
August,
1948, of
the
Hon'ble S. B. Sinha J. of the Calcut.ta High Coul\ in
Suit No. 343 of 1943 instituted
under
the
Original
Jurisdiction of the High Court).
M. C. SetalrAad, Attorney-General for India (B. Sen,
with him) for the appellant.
S. C. Isaac (B. Banerjee, with him) for the respond-
(:nt.
·
1951. December 18.
The leading judgment
was
delievered by Bose J.
Fazl Ali l· agreed.
·-
1951
Dec. 18.
•
Kidar I.All Seal
•nd Another
v.
H ari I.All SeJd
Bose /,
180
SUPREME COURT REPORTS
(1952]'
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
BeJoy Lall
(D.23-5-33)
I
Jugal Lall
I
.
Meghamala Dass•
(died 1945)
I
. I
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 mortgagors were the plaintiff's father Tarak
Lall and Tarak's two brothers Kedar and Naku. The
mortgage was executed on the 12th
June,
1936, · m
favour of one
Mst.
Gyarsi for
a
consideration
of
Rs. 80,000.
For convenience I will call this the suit
mortgage though this is not a suit on the mortgage.
The mortgagee sued in the year 1938 and obtained
a preliminary decree for sale on the 17th of February,.
1939, for a sum of Rs. 89,485-12-9 plus costs. · The
decree was made final on the 22nd of December, 1939.
In executing 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 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 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.
• .
>
SUPREME COURT REPORTS
181
This was done and 20, Round Tank Line, was conveyed. by the present - plaintiff to the Hooghly

## Text

.
. .
• -
5.C.R.
SUPREME COURT REPORTS
179
KIDAR LALL SEAL AND ANOTHER
ti.
HARI LALL SEAL
[ SAI~ID F AZL Au and V !VIAN BosE JJ.]
Transfer of Property Act (IV of 1882)1, -ss. 82, 92-lndian Conaract Act (IX of 1872), s. 43-Mortgage-Contribution between comortgagors-Liability to contribute-Whether proportionate to value
.of properties mortgaged, or benefit derived by each mortgagorGeneral and special law-Equitable considerations. •
The right to contribution as between co-mortgagors is governed
!by ss. 82 and 92 of' the Transfer of Property Act and not by
·s. 43 of the Indian Contract Act, inasmuch as s. 43 of the. Contract
Act deals with contracts generally, while ss. 82 and 92 of the Transfer of Property Act specifically deal with the right of contribu-
'tion between co-mortgagors. It is an established principle
that
when there is a general law, and a special dealing with a particular matter, the special excludes the general.
Consequently, in
the absence a contract to the contrary, co-mortgagors are bound
:to contribute proportionately to the value of· the shares or parts
.of the mortgag~d propert¥ owned by them and not in proportion
.to the extent of the benefits derived by each of them.
~s ss. 82 and 92 of the Transfer of Property Act prescribe the
.:onditions in which contribution is payable in India when there
is · a mortgage, it is not proper to. introduce into the matter
.extrinisic principles based on equitable considerations.
CIVIL
APPELLATE
JURismcnoN:
Civil Appeal No.
101 of 1950.
Appeal by special leave from the Judgement and Decree dated the 20th September, 1949, of
the High Court of Judicature at Calcl;ltta (Harries C. J.
and Chatterjee J.) in Appeal No. 46 of 1949 arising
·out of Decree dated the 31st
August,
1948, of
the
Hon'ble S. B. Sinha J. of the Calcut.ta High Coul\ in
Suit No. 343 of 1943 instituted
under
the
Original
Jurisdiction of the High Court).
M. C. SetalrAad, Attorney-General for India (B. Sen,
with him) for the appellant.
S. C. Isaac (B. Banerjee, with him) for the respond-
(:nt.
·
1951. December 18.
The leading judgment
was
delievered by Bose J.
Fazl Ali l· agreed.
·-
1951
Dec. 18.
•
Kidar I.All Seal
•nd Another
v.
H ari I.All SeJd
Bose /,
180
SUPREME COURT REPORTS
(1952]'
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
BeJoy Lall
(D.23-5-33)
I
Jugal Lall
I
.
Meghamala Dass•
(died 1945)
I
. I
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 mortgagors were the plaintiff's father Tarak
Lall and Tarak's two brothers Kedar and Naku. The
mortgage was executed on the 12th
June,
1936, · m
favour of one
Mst.
Gyarsi for
a
consideration
of
Rs. 80,000.
For convenience I will call this the suit
mortgage though this is not a suit on the mortgage.
The mortgagee sued in the year 1938 and obtained
a preliminary decree for sale on the 17th of February,.
1939, for a sum of Rs. 89,485-12-9 plus costs. · The
decree was made final on the 22nd of December, 1939.
In executing 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 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 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.
• .
>
SUPREME COURT REPORTS
181
This was done and 20, Round Tank Line, was conveyed. by the present - plaintiff to the Hooghly Flour
Mills on the 18th of March, 1943. Out of the consideration a sum of Rs. 97,116~11-0 was paid to the Mills in
full satisfaction of the claim ·and costs then
outstanding. The Mills executed a reconveyance of the rest of
· the properties to the -mortgagors in ;elease of the mortgage 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
of Rs. 1,19,116-11-0 in satisfaction
of
the
mortgage.
His one-third share in this comes
to
Rs. 39,872-3-8.
He claims that he is entitled to receive the balance of
R~: 79,744-7-4 from the two defendants and that each
of them is liable for a half
of
that
sum namely,
Rs. 39,872.J-8 .
...;.
In addition to _this t11e plaintiff had incurred
costs
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~
(1) "a declaration that the properties mentioned in
Schedule - 'A' . . . . belonging to the defendants stand
charged
with the repayment of the sum of Rs.
80,507-7-8 -being the aggregate amount due and payable
by the two defendants," and
(2) "Decree under Order XXXIV of the Civil Procedure Code in proper 'form."
Schedule A contains a list of the rest of the mortgaged properties
which
belong
exclusively
to
the
defendants,
1951
Kidar Lall Seal
and Another
v.
Hari Lal? Sea~
Bose f.
182
SUPREME COURT REPORTS
[1952]
!9'1
It will be seen that the plaintiff claims on the basis
that each of the three mortgagors is liable to contriKidar Lall Selli b
h ·
and Another ·· ute in equal s ares towards payment of the mortgage
v.
debt.
Hari Lall Seal
Bose/.
The defendants did not deny their liability to contribute. They only challenged the basis on which
it
was to be computed.
They pleaded a special agreement 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
of these earlier liabilities
was
only Rs.
13,259-2-4.
Therefore, the only benefit
they
got out
of
this
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
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 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 concerned 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
family
properties, but in the year 1932 there was a partition which
was compelled by reason of a suit filed by Tarak
-
!''--•
....
•
.•
S.C.R.
SUPREME coURr REPORTS \
183
against his brothers and mother.
The upshot was
1951
that the properties were divided as follows :-
Kidar Lall Seal
(1) Bejoy,
Kedar,
Naku
and
the
mother
and Another
Meghamala obtained Chittaranjan Avenue.
v.
(2) Tarak (plaintiff's father) obtained 16 Round Hari Lall Seal
Tank Lane and 20 Round Tank Lane.
(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 ·mortgaged 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.
The third was on the 28th January, 1927.
In this
Bejoy and Tarak again mortgaged their 2/5 share in
the same items of propert.y for
R~. 7,000
tQ
Binode
Behari Sen and Kunja Behari Sen.
All three sets of mortgagees, or their representatives,
instituted
suits
on their
respective
mortgages
and
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
the suit mortgage executed
by the
three
brothers,
Tarak Kedar and Naku, for Rs. 80,000.
The properties 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
three in
the
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
Bo"/.
1951
Kidar Lall Seal
and Another
v.
R rn·i Lall Seal
Bose /.
184
SUPREME COURT REPORTS
[19521
later decretal charge ;
Rs.
11,519-11-0
m
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
Court.
I understand some of the details are disputed,
so I make it clear that I am not setting out the decision of this
Court
regarding
the details but only
giving an oyerall picture.
Shorn of overburdening detail the. problem, reduced
to its simplest terms, comes to this.
Three persons
A, B and C separately own
properties
of
unequal
value, Blackacre, Whiteacre and
Greenacre.
Let
us
assume that their values
at the
material
date
are
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
these
propertks 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
Rs. 2,000, B's to Rs. 3,000 and C's to Rs. 5,000.
In order to clear off these debts, A, B and C jointly
mortgage their three estates for Rs. 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
m
the -
Rs. 10,000.
At the date of redemption the mortgage debt
has
swollen to Rs. 15,000.
A alone redeems by
selling
Blackacre, which is his separate estate, to
the mortgagee 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 the three contribute equally.
In
that
event B
would pay A Rs. 5,000 and C would pay Rs. 5,000.
'r
•
•
...
'-{
•
.....
: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, that is 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
:the values of the properties mortgaged.
Iri that event
B would have to
pay 2/6 of
Rs. 15,000,
that
is
Rs. 5,000, and C 1/() of Rs. 15,000 which
come
to
.Rs. 2,500 .
. The problem is to know which of these three solutions to apply. In the absence of other considerations,
the inost equitable solution is obviously
the
second.
But the matter is not as simple as that.· There are i::er~
· tain statufory provisions which must first be examined.
The learned counsel f0r
the. plaintiff-respondent
contended that section 43 of the Contract Act applied.
He relied on the following provision :-
"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."
•
The argument is that Unless i
contrary 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
C!'.>fltiatt between the prdfnis(>fs on the one side and
the promisee on the otller.
That contract in this ca8e
is the suit mortgage. There is no contract to the contrary in the document, therefore, it was
contended,
· the· section intist apply. That of course would be the
dear, logical · and simple conclusion if there were no
. -Other provision of law
to
consider.
But
we
ate
· dealing here with !1 mortgage . and so we . have also i:o
look to the provisions of the Transfer of Property Act.
1951
Kidizr I.All Seal
11ntl A not her
Y,
Hii'ri Llll Seal
Be>s# /.
1951
Kidar Lall Seal
and Another
v.
H ari Lall Seal
Bose/,
186
SUPREME: COURT REPORTS
[1952}
Incidentally, if this argument is
pushed to
its
logical conclusion it would exclude any collateral
or
subsequent agreement 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 !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
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
AcJ:., section 43 of the Contract Act and what I might
term the principle 9f beneficial, as opposed to proportionate or equal, distribution of liability.
I am of opinion that the second solution adumbrated 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 recourse to equitable principles however fair they may appear to be at first sight.
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.
•
-
•
•
-
"
I
S.C.R.
· SUPREME COURT REPORTS
- 187
1951
equitable estate has no application
in India.
So also
referring to the "right of redemption· their Lordships
held in Mohammad Sher Khan v. Seth Swami Dayal(1)
·that the right is now governed by statute, namely section 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
Kidar Lall :red
and A.nother
• v.
Hari Lall Seal
of subrogation under sections 91, 92, 101
and
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
authority and prin,.:iple the decision
must
rest solely on
whatever section is held to apply.
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.
Section ' 82
applies to mortgages.
As the right to
'contribution
here- arises out of a mortgage, I am clear that section 82 must exclude section 43 because when there is
a general law and a special law dealing with
a
particular 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, is now statutory and is embodied in
the
.'.fransfer of Property Act read
with the Civil Pro- •
cedure Code.
I am clear we cannot travel beyond these
statutory provisions.
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 confers 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.
(3) I.L.R. 1938 Nag. 206 at 216.~
(2) A.LR. 1937 All. 588 at 594.
( 4) (1930) 57 I.A. 189.
6-3 s.c. fndfa/71
Bose /.
188
SUPREME COURT REPORTS
[1952]
\951
J(idar 1"11 Seal
and Another
shall be reimbursed in a particular way out of particular properties.
The parties are at the 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
v.
Hari 1"11 Seal
Bou f.
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 to
cousider whether that is the best possible solution but
the rule at any rate obviates the necessity of roving
enquiries into the objects
of a borrowing and the
application of the funds.
On an overall basis
it
is
perhaps as good as any other. But that hardly matters.
The rule is there and full effect must be given to it.
The learned counsel
for
the
plaintiff-respondent
urged 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
the
plaintiff.
I am not impressed with this objection.
On
the facts set out by the plaintiff it is evident that
he
is entitled to contribution.
The method of computation is a matter of law and it is for the judges to
apply the law to the facts stated and give the plaintiff
such relief. as is appropriate to the case.
I turn now to the question of fact, the special agreement pleaded by the defendants.
The only evidence
in support of it is that of the first defendant Kedar.
According to him, the agreement was an oral one
'r
•
-
S.C.R.
SUPREME COURT REPORTS
189
though the parties contemplated writing and
registration. · 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
an
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 registered m
-connection with the adjustment ?"
and he replied "Yes". He also tells us. that the parties
regarded the matter as confidential and so only three
·persons were present, Tarak, Naku and himself.
It is
to be observed that Nak\1.1, who is the second defendant,
has not entered the box.
Stopping there, it is evident that we have to rely on
the memory · of a very interested person speakin-g nearly
thirteen ye<irs . after
the event
about a
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 difficulties when we do JlOt know the exact words
the
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.
1951
Kidar Lall Selll
and Another
v.
Hari Lall Seal
Bose].
/
1951
Kidar Lall Se•/
and Another
v.
Hari Lall Seo/
Bose /.
190
SUPREME COURT REPORTS
[19521
witness is a hesitant and reluctant one,
as
his exairunation 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 suit for partition against his
brothers and fight it to a finish. They were not able
to arrange matters amicably.
It was suggested in argument 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.
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 so.
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 inference I can draw from these facts is that Tarak
either refused to agree or had not make up his mind.
The figures put forward by the defendants were contested 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
show
that
the matter is not as straightforward or as simple
as
the defendants would
have
us
believe.
Therefore,
Tarak's inaction during
the three months
and
the
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.
'r
-
-
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
the
witness · wheri he tells us, or rather suggests, that the
parties reached finality.
It would in
any
event
be
oangerous ' to believe a witness
in
circumstances like
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
hold that
the agreement is not proved.
Much was made in argument about the· rule regarding the weight to be given to the estimate of the judge
who saw and heard a witness.
I do not doubt the
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
Judge 'considered that his story · was
inherently prob-
-able.
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 hav_e agreed.
That leaves at large the nature of the relief fo which
the p\laintiff 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_ convenant 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 mortgage suit shall
. (1) A.I.R. 1945 P.C. 35 at 37.
1951
Kidtrr Lall Seal
1tt1,i Another
v.
Han' Lall Seal
Bose/.
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 plaintiff 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.
I would be slow to throw out a claim on a mere
technicality of pleading when the substance of the
thing is there and no prejudice is caused to the other
side, however clumsily or inartistically the plaint
may
be worded.
In any event, it is always open to a court
to give a plaintiff such general or other relief as it
deems just to the same extent as if it had been asked
for, provided that occasions no prejudice
to
the other
side beyond what can be compensated for in costs.
In the circumstances, in the absence of agreement
between the parties as to the figures, I would remand
this case to the High Court for ( 1) an enquiry regarding the sum paid by the plaintiff's father for satisfaction 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 that
the liability of each defendant be ascertained separately
in the manner prescribed by section 82, Transfer of
Property Act.
In the
event
of
this
liability
would direct that
his liability
be
40,253-11-10 plus interest.
exceeding
reduced
to
Rs.
Rs.
\Vhen these figures are ascertained, I would direct
that a mortgage decree for sale be drawn up in the
usual way
affording
either
defendant
the right to
redeem the whole of
the balance
of
the
property
40,253-11-10 with interest against either defendant, l
'r
..
S.C.R.
SUPREME COURT REPORTS
193
(excluding the plaintiff's) for the aggregate sum due
as above and, in default of ·payment, limiting the
liabilities of each item of property to the sum rateably
due on it under section 82.
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 subrogation in his plaint even in the alternative.
The
defendants, on the other hand, set up a case which ·has
failed on the facts.
I would, therefore,
direct
each
side to bear its own costs in this appeal.
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
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 the
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 •
..
1951
K1d'ar Lall !it!tlt
11t1ti Another
v.
Hari Lall Si!al
Bose I
19$1
Dec. 2(,,