Patna High Court
Mt. Rajo Kuer vs Brij Bihari Prasad And Ors. on 31 October, 1961
Equivalent citations: AIR1962PAT236, AIR 1962 PATNA 236
JUDGMENT Ramratna Singh, J.
1. This appeal by the plaintiffs arises out of a suit for contribution under section 82 of the Transfer of Property Act. One Madho Prasad Singh, husband of plaintiff No. 1 and father of plaintiff No. 2, executed three simple mortgage bonds in different years in respect of the same properties, which constituted the proprietary interest of the mortgagor in ten villages specified in Schedule A to the plaint. The bonds were executed on the 18th February, 1925, the 10th March, 1929 and the 14th December 1931 respectively for Rs. 8,000, Rs. 5,446 and Rs. 8,351, in all Rs. 21,797, in favour of Lakshmi Prasad Singh, Jagarnath Prasad Singh and Dhanukdhari Prasad Singh respectively. These mortgagees were members of a joint Mitakshara family. The mortgages were acquired on behalf of the family. On the 7th August 1936 the mortgagees instituted Mortgage Suit No. 23 of 1936 in the court of the Subordinate Judge at Arrah to enforce the three mortgage bonds; and on the 10th February, 1938, a preliminary decree was passed for a consolidated sum of Rs. 7,761/8/- besides costs and interest. The decree was made final on the 21st April 1939. In execution of the mortgage decree, the entire mortgaged property was sold and purchased by the decree-holders mortgagees on the 7th October 1939 for Rs. 38,165/3/5. In the meantime, Madho Prasad Singh preferred First Appeal No. 48 of 1939 in the High Court against the preliminary decree passed in the mortgage suit. This first appeal was allowed in part and thereafter Madho Prasad Singh filed an application under Section 144, Civil Procedure Code, in 1941 before the executing court for setting aside the auction sale. But the application was dismissed on the 10th June 1941. Madho Prasad Singh then went up in appeal to the High Court against this order of dismissal; and this appeal was disposed of in terms of compromise arrived at between the mortgagor and the mortgagees. In accordance with the terms of this compromise, on the 9th April 1943, Madho Prasad Singh deposited Rs. 38,165/3/9 in the court of the Subordinate Judge and the mortgage decree was satisfied. Madho Prasad Singh died on the 12th January 1945. In the meantime, defendants 1 to 5, who are members of a joint family with defendant No. 1 (Brij Bihar Prasad) as karta obtained an ex parte money decree in the Munsif's court at Gopalganj in the district of Saron against Madho Prasad Singh in Money Suit No. 26 of 1936, on the 16th July 1937 for Rs. 1,203/15/3; and in execution of this decree the decree-holders purchased on the 26th April 1938 item No. 5 of the mortgaged property and the sale was continued on the 26th May 1933.
2. The case of tho plaintiffs is that defendants 1 to 5 purchased the equity of redemption in item No. 5 of the mortgaged property and, therefore they are liable to contribute rateably towards the amount deposited by Madho Prasad Singh for satisfaction of the mortgage decree. But, as these defendants refused to make any contribution, this suit was instituted for recovery of Rs. 12,500 from them. There is a further prayer for recovery of Rs. 100 from defendants 6 to 8 and also a sum of Rs. 100 from defendants 1 to 16 as contribution in respect of items 6, 1 and 2 of the mortgaged properties.
3. A formal written statement was filed on behalf of minor defendants 11 to 16 by a pleader guardian-ad-litem. But there was no contest on their behalf at any stage. Of defendants 6 to 16, those who were majors, did not file any written statement. None of these defendants appeared in this Court either.
4. Defendants 1 to 5 filed a written statement contesting the claim. They contended, inter alia, that they did not purchase the equity of redemption in item No. 5 of Schedule A to the plaint, but that they were purchasers of the property tree from any encumbrance. They disputed the right of the plaintiffs to any contribution from them. They asserted that they were bona fide purchasers for value without notice. They also challenged the value of item No. 5 given by the plaintiffs and gave their own value instead. Thus, the amount of contribution claimed was disputed. There were other pleas also; but they need not be discussed as the findings thereon, which were against defendants 1 to 5, were not challenged.
5. The learned Subordinate Judge found that the plaintiffs were not entitled to any contribution from deleudants 1 to 5 and that there was no material for determination, of the value of the prematerial on the dates of execution of the mortgage bonds for the purpose or ascertaining the amount of contribution, if any, which could have been allowed against these defendants. As the plaintiffs did not adduce any evidence regarding their claims against defendants 6 to 16, the same was disallowed by the learned Subordinate Judge. Consequently, the suit was dismissed with costs against defendants 1 to 5. Hence this appeal by the plaintiffs.
6. In this Court also, the plaintiffs-appellants have not made any grievance against the order of dismissal in respect of their claims made against defendants 6 to 10. So, the only question for determination in this appeal is whether the appellants are entitled to get any decree for contribution against the contesting defendants-respondents, and, if so, to what amount.
7. Section 82 of the Transfer of Property Act embodies the principle of contribution which comes into play when a property is sold subject to a mortgage encumbrance. This section reads thus:
"Where properly 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 and, for the purpose of determining the rate at which each such share or part shall contribute the value thereof shall be deemed to be its value, at the date of the mortgage after deduction of the amount of any other mortgage or charge to which it may have been subject on that date. Where, of two properties belonging to the same owner, one is mortgaged to secure one debt and then both arc mortgaged to secure another debt, and the former debt is paid out of the former property, each property is, in the absence of a contract to the contrary, liable to contribute rateably to the latter debt after deducting the amount of the former debt from the value of the property out of which it has been paid.
Nothing in this section applies to a property liable under section 81 to the claim of the subsequent mortgagee."
It embodies the principle that a property which is equally liable with another property to pay a debt shall not escape because the creditor has been paid out of the other property alone. It is well settled that contribution is applicable where the property has been sold subject to the mortgage while marshalling arises under Section 56 of the Act where the property has been sold free from any incumbrance. It is also well settled that the principle underlying Section 56 can be invoked by an auction-purchaser of a property in execution of a decree, provided that he is a bona fide purchaser for value without notice, see: Lachhminarayan v. Janmaljai Mahton, AIR 1953 Pat 193.
In view of these principles, the contesting defendants will be liable to contribute rateably to the plaintiffs, unless they purchased item 5 of the mortgaged property free from incumbrance, that is, without any notice of the prior mortgages and unless there was any contract to the contrary between Madho Prasad Singh and these defendants.
8. The first question therefore, to be considered is whether defendants 1 to 5 were bona fide purchasers for value without notice. In Section 3 of the Transfer of Property Act, 'notice' is defined thus:
"a person is said to have notice of a fact when he actually knows that fact, or when but for wilful abstention from an enquiry or search which he ought to have made, or gross negligence, he would have known it."
In Explanation I to this definition it has been laid down that the registration of a document by itself amounts to notice. The same Explanation provides that, where a document has been registered under Section 30 (2) of the Indian Registration Act, 1908, any person acquiring such property shall be deemed to have notice of such document from the earliest date on which any memorandum of the registered document has been filed by the Sub-Registrar within whose sub-district any part of the property is situated. But there are three provisos to this Explanation of which the following two are relevant in the present case:-
'.(2) the instrument or memorandum has been duly entered or filed, as the case may be, in books kepi under Section 51 of that Act, and (3) the particulars regarding the transaction to Which the instrument relates have been correctly entered in the indexes kept under Section 55 of that Act.' Admittedly, the three mortgage bonds executed by Madho Prasad Singh were registered at Arrah in the district of Shahabad and item 5 of the mortgaged property which was purchased by defendants 1 to 5 is situated in the Subdivision of Gopalganj within the district of Saran. Section 65 of the Registration Act provides for transmission of copies to the offices of other district, in which any of the properties affected by registration of any document is situated; and it further lays down that the Registrar of the ether district on receiving the copy of document shall file in his Book No. 1 a Copy of the document and shall FORWARD A meMORANDUM OF THE SAME to each of the Sub-Registrars subordinate to him within whose sub-districts any part of such property is situate; and any Sub-Registrar on receiving such memorandum is required to file it in his book No. I. The Sub-Registrar of Arrah was competent to receive and register the mortgage bonds, though one of the mortgaged properties was situated in Saran district as all the Sub-Registrars of the head-quarters of districts are authorised by the State Government under Section 7 of the Indian Registration Act (vide Order No. 4 at page 77 in Chapter IV. Part I of the Bihar Registration Manual 1946) to reformal the duties of a Registrar and, under Section 30(2) of ,the Act, a Registrar is competent to receive and register such documents.
It was then contended by Mr. K. B. N. Singh that the Court should presume, under Section 114 of the Indian Evidence Act, tuat the District Registration of Saran. and the Sub-Registrar of Gopalganj received from, the Sub-Registrar of Arrah copies of the memoranda of the three mortgage bonds and filed the same in their respective Book No. I; and, therefore, defendants 1 to 6 shall be deemed to have notice of the mortgage bonds. But this presumption is not conclusive and it cannot over rule the express requirements of the aforesaid Explanation to the definition of 'notice' and the Provisos thereto in the Transfer of Property Act. According to the second part of the Explanation, the purchaser of the property is deemed to have notice from the earliest date on which the memorandum of she registered document has been filed by the Sub-Registrar within whose sub-district a part of the mortgaged property is situate, that is, the Sub-Registrar of Gopalganj in the present case. The language of the two provisos also makes it clear that the party relying on the Explanation has to prove that the memorandum has been duly filed and the particulars regarding the transaction have been correctly entered in the indexes, respectively, under Sections 51 and 55 of the Registration Act.
This view is supported by the decision in Benares Bank Ltd., Saharanpur v. Har Parshad, AIR 1936 Lah 482. In that case, a document relating to an immovable property at Delhi had been registered by the Registrar at Lahore under the provisions of Section 30(2), Registration Act, and it was held that it did not amount to a notice to a subsequent purchaser unless the memorandum of the document had been entered in the files by She Registrar's Office of Delhi under Section 51 of the Registration Act. As there was no evidence on the record that the document or memorandum thereof had been duly entered or filed under Section 51 of the Registration Act, the Lahore High Court held that it did not amount to a notice. In the present case also, there is no evidence that the document or its memorandum was filed anywhere in the district of Saran and, therefore, the registration of the mortgage bends did not amount to a notice to defendants 1 to 5 who purchased the property situated in the jurisdiction of the Sub-Registrar of Gopalganj. We have, therefore, to fall back on the definition of 'notice' ignoring the Explanation to the same.
9. The learned Subordinate Judges has, on the evidence of defendant No. 1 (Brij Bihari Prasad), found that the contesting defendants had no notice of the three mortgages. Defendant No. 1 (P.W. 1) has said that he had no notice of any of the mortgages before he received a copy of the plaint in the present suit. He has further stated that Shamnarain Lal, who was his karpardaz at the time be purchased item No. 5 of the mortgaged property in execution of a money decree, told him that the property was free from encumbrance. Shamnarain Lal is if course dead. But defendant No. 1 could not say if Shamnarain Lal had made an inquiry in regard to this matter and he did not ask Shamnarain about the source of information that the property was free from encumbrance. Admittedly, no encumbrance is mentioned in any of the documents relating to the execution case in which the contesting defendants purchased item No. 5. The evidence of the deposing plaintiff Rajballab Singh (P.W. 1) on the point is worthless, because he has not stated that the defendants had knowledge of the mortgage bonds before their auction purchase in the execution case. Relying on the evidence of D.W. 1 and in the absence of any note of any encumbrance in the documents relating to the execution case the learned Subordinate Judge has held that these defendants were bona fide purchasers for value without notice of the mortgage and that they did not purchase merely the equity of redemption in item No. 5. But, I am unable to agree with him.
The evidence of D.W. 1. referred to above shows that he did not act as a prudent person inasmuch as he had not asked Shamnarain even about his source of information and he cannot say if Shamnarain made any inquiry about the existence of any encumbrance. According to the definition of 'notice', the defendants will be deemed to have notice, if but for wilful abstention from an inquiry or search which they ought to have made, or gross negligence, they would have known the existence of the mortgage encumbrance. This definition is based on the English law. With reference to the duty of a purchaser, Lord Selborne said, in Agra Bank v. Barry, (1874) 7 HL 135 at p. 157 :
"It is merely the course which a man dealing bona fide in the proper and usual manner for his own interest, ought, by himself or his solicitor, to follow with a view to his own title and his own security. If he does not follow that course, the omission of it may be a thing requiring to be accounted for or explained. It may be evidence if it is not explained, of a design inconsistent with bona fide dealing, to avoid knowledge of the true state of the title."
In West v. Reid, (1843) 2 Hare 249 at pp. 257 to 258, Wigram, V. C. stated that there might be a degree of negligence so gross that a court of justice might treat it as evidence of fraud, although (morally speaking) the party charged might be perfectly innocent. Negligence is not fraud, but courts of equity got over the difficulty by assuming that the negligent person had wilfully shut his eyes to circumstance which called for inquiry. On this assumption gross negligence was evidence of a fraudulent design. In Oliver v. Hinton (1899) 2 Ch 164 at p. 274, Lindley, L.J. said :
''to deprive a purchaser for value without notice of a prior incumbrance of the protection of the legal estate it is not, in my opinion, essential that he should have been guilty of fraud; it is sufficient that he has been guilty of such gross negligence as would render it unjust to deprive the prior encumbrancer of his priority."
This case was followed by the Calcutta High Court in Lloyds Bank Ltd v. P.E. Guzdar and Co., ILR 56 Cal 868 : (AIR 1930 Cal 22).
10. The learned advocate for the respondents has, however, relied on a decision in Kausalai Ammal v. Sankaramuthiah Pillai, AIR 1941 Mad 707, wherein was held that the Omission 10 make inquiries is not sufficient to constitute constructive notice. Their Lordships of the Madras High. Court accepted the view of the Calcutta High Court in Joshua v. Alliance Bank of Simla, ILR 22 Cal 185, that "wilful abstention from an enquiry or search must be taken to mean such abstention from inquiry or search as it would show want of bona fides." A perusal of the report shows that the Calcutta High Court assigned this meaning to the expression "wilful abstention from an inquiry or search' following the observation of Lord Selborne in the case of Agra Bank, (1874) 7 HL 135. In the circumstances of the case before them, their Lordships of the Madras High Court held that the omission to make inquiries did not constitute constructive notice. In that case, in a suit for maintenance, a lady had obtained a decree by which the amount allowed to her as maintenance was made a charge on a certain immovable property. Thereafter the person liable to pay the decree had mortgaged the property to a third person and the suit to enforce the mortgage bond went up in appeal to the Madras High Court. The parties in that suit admitted that the mortgage was a genuine transaction and that the consideration passed. There was no suggestion that the mortgage was created in order to defeat the appellant and in fact it was assumed that the mortgage was created for the purpose which would be necessary from the point of view of the members of the joint Hindu family who were represented by the mortgagor. In such circumstances, the omission to make inquiry might not constitute constructive nonce. But in the present case the contesting respondents were decree-holders in the money execution case and it was their ordinary duty to make inquiries regarding prior encumbrances in Order to comply with the provisions of Order 21, Rule 66 of the Code of Civil Procedure, and they did not perform this ordinary duty.
11. Judged in the light of the principles enunciated in the aforesaid decisions, the evidence of defendant No. 1 regarding inquiries justified the inference that there was a design inconsistent with bona fide dealing on the part of the contesting respondents to avoid knowledge of the true state of affairs and that there was gross negligence on their part in this respect. It must be held, therefore, that they had constructive notice of the prior mortgages created by Madho Prasad Singh, their judgment-debtor.
12. In view of the foregoing discussions, I am of the opinion that the contesting defendants had constructive notice of the mortgage encumbrance before they purchased item No. 5 of the mortgaged properties in execution of their decree for money against Madho Prasad Singh and, therefore, they were not bona fide purchasers for value without notice. Consequently, the plaintiffs appellants would be entitled to claim contribution from these defendants unless there was any contract to the contrary between them and Madho Prasad Singh.
13. No express contact to this effect was lifted on behalf of the contesting defendants. But with reference to the sale proclamation and some other documents of the money execution case, it was contended that by his conduct Madho Prasad Singh entered into a contract with these defendants that he would pay the entice mortgage dues and the purchase of the defendants at the money sale was free from encumbrance. As stated earlier, no encumbrance was mentioned in the sale proclamation. It appears that Madho Prasad Singh filed a petition under Order 21, Rule 90 of the Code of Civil Procedure in the money execution case at Gopalganj. This petition was registered as Miscellaneous Case No. 223 of 1938 and there was a compromise between the decree-holders, that is, the contesting defendants and the petitioner on the 15th April 1939. It" was agreed that the applicant judgment-debtor should pay Rs. 1318 to the auction-purchaser in certain instalments by the 15th October 1939 at the latest, and on payment of the same the auction sale would stand cancelled; but otherwise, the same would be confirmed, Madho Prasad Singh did not pay the amount and the sale, as stated earlier, was confirmed. But this fact by itself taken along with the omission to note any encumbrance in the sale proclamation cannot amount to an implied contract, between Madho Prasad Singh and the auction-purchasers by which the former agreed to pay the entire mortgage dues. The compromise cannot also amount/ to estoppel against Madho Prasad Singly because the auction-purchasers were not misled by this compromise to believe that the property purchased by them was free from any encumbrance, The learned advocate for the respondents cited three decisions in support of their contention, but none of them is applicable to the present case. In Kali Dayal v. Umesh Prasad, AIR 1922 Pat 63 it was held that the auction-purchaser is the representative of the judgment-debtor and that the general rule applicable to sales in execution of decrees in that no man can transfer to another a better title than he himself possesses. This apparently goes against the respondents. It was further observed that estoppel is a rule of evidence precluding a person from denying the truth of that thing which he had induced another person to believe it to be true. But in the present case there was nothing in the conduct of Madho Prasad Singh to induce these respondents to believe that the property purchased by them in court was free from any encumbrance.
In Kishen Lal v. Peary Lal AIR 1930 All 865, it was held that, if the property had been sold under the description adopted by the Court, it cannot be open to one or more of the judgment-debtors, who had an opportunity to appear before the Court and contest the description to come in after the sale either by way of an application under Section 47 of the Civil Procedure Code or by a suit to contest that description. This decision cannot apply to the present case, because the auction sale or the description of the property sold at that sale has not been challenged in the present suit by the plaintiffs as was done in the Allahabad case.
14. On the plain language of Section 82 of the Transfer of Property Act, the plaintiff who are the heirs and legal representatives of Madho Prasad Singh, are entitled to a decree for contribution against the contesting respondents. In Ganeshi Lal v. Charan Singh, 57 Ind App 189 : (AIR 1930 PC 183), it was held by the Privy Council that where two properties mortgaged together to secureone debt afterwards became vested in different owners, who purchased subject to mortgage, if one of them discharges the mortgage he is entitled under Section 82 of the Transfer of Property Act 1882, to rateable contribution from the other, although under an earlier contract of purchase made with the mortgagor (the other not being a party) he retained part of the then agreed price for the express purpose of discharging the mortgage. This decision was followed in the case of Gopi Nath v. Raghubans Kumar, AIR 1949 Pat 522, and their Lordships observed :
"The remedies granted by Section 82 and Section 95 are independent and not mutually exclusive; and a co-mortgagor who pays the mortgage-money has right of contribution and acquires a charge under Sections 82 and 100 in addition to his right to subrogation under Sections 92 and 95. There is no difference in principle between a case where the payment in respect of which contribution is claimed was to avert a legal process and a case where payment has been enforced by sale of the property of the claimant for contribution. The reason is that the right to claim contribution is based upon the broad principle that where two or more persons are equally bound and equally relieved, it is only just that they should all contribute in proportion to a common benefit."
15. I am, therefore, of the opinion that, as Madho Prasad Singh paid the entire decretal dues of the mortgagees, and thereby saved the mortgaged properties including item No. 5, which had been purchased earlier by the contesting respondents, in the execution sale at Gopalganj, the plaintiffs, who are the heirs and legal representatives of Madho Prasad Singh, are entitled to rateable contribution by the respondents in terms of Section 82 of the Transfer of Property Act.
16. In order to ascertain the amount for which the respondents are liable, it is necessary to find out the value of each item of the mortgaged properties. As stated by the learned Subordinate Judge, there is no evidence on behalf of the plaintiffs on this point. They have not also produced any evidence to show what was the amount of the revenue payable on the date or dates of the mortgage bonds in question in support of the different items of the properties included in the bonds. Reliance was placed on their behalf on the report of a pleader commissioner (Ext. 14) and the order of the executing court assessing the value of the mortgaged properties in Mortgage Execution Case No. 35 of 1939 between the mortgagees decrec-holders and Madho Prasad Singh Judgment-debtor (Ext. 1/a). The report of the pleader commissioner is not admissible in evidence, as he was not examined in the present suit. In Exhibit 1/a the executing court assessed the value of the properties included in the mortgage bonds at fifteen times of the annual profit on the basis of a chart supplied by the decree-holder. In the property purchased by defendants 1 to 5, there was also an orchard at the time of the mortgage execution and the executing Court assessed its value on the basis ot the report of the pleader commissioner.
The value assessed by the executing Court on these materials in 1939 is absolutely irrelevant, because we have to find out the value of the properties on the date or dates of the three mortgage bonds. The learned advocate for the plaintiffs appellants relied, however, on the chart given by the decree-holders which forms a schedule to the order of the executing Court. This chart shows the revenue, cess and Jamabandi of the properties and the learned advocate wanted us to assess the value on the basis of these materials. But this chart also does not necessarily show the revenue and cess payable on the date or dates of the mortgage bonds. Moreover, the order of the executing Court, so far as it relates to the valuation of the properties, is not admissibles as defendants 1 to 5 were not parties to the same. The learned advocate agreed that the order could not be admissible under Sections 40 to 42 of the Indian Evidence Act. But he contended that it is admissible under Section 43 read with Section 13 of that Act. Some decisions were also cited; but none of them supports this contention.
In Ram Ranjan Chackerbatty v. Rani Narain Singh, 22 Ind App. 60 (PC), certain decrees of 1817 and 1845 which sustained defendants' claim to hold a Mokarrari tenure were admissible in evidence "as showing ancient possession and assertion of title many years ago". Similarly in Purnima Debya v. Nand Lal, AIR 1932 Pat 105, it was held that the judgment other than the judgment referred to in Sections 40 to 42, may be admissible to prove that a right was asserted or denied under Section 13, or to explain or introduce facts in issue or to explain the history of the case, in Kesho Prasad Singh v. Bhagjogna Kuer AIR 1937 PC 69 it was held that a judgment is not admissible in evidence against one who is stranger to the suit. It was further held that a judgment in a prior suit together with the plaint which preceded it and steps in execution which followed it, is evidence of an assertion by the holder of the judgment of the right which he claims to have acquired and they are admissible in respect of that right even against third parties. This decision was followed in Ramji Lachmanji and Jankiji Asthal Pokhrauni v. Mathura Prasad, AIR 1941 Pat 354. The order of the executing Court in Exhibit 1/a in respect of valuation of the properties cannot, however, be used to show the assertion or denial of a right or to explain the history of the case or to introduce facts in issue. Thus, the valuation contained in exhibit 1/a or the materials contained in the schedule thereto is not admissible against defendants I to 5. Hence, we have to act on the admission, if any, of defendants 1 to 5 regarding the valuation of the properties on the date or dates of the mortgage bonds and the oral evidence on the point.
17. In the schedules to the written statements of the contesting defendants the value of all the ten properties included in the mortgage bonds are given separately. It was contended on behalf of these defendants that the value given in the schedule was the value of the properties on the dales when the written statements were filed. But this contention cannot be accepted, because the value has been given with reference to paragraph 19 of the plaint which speaks of the value at the date of the mortgage. Paragraph 13 of the written statement of defendant Birendra Prasad deals with paragraph 19 of the plaint, and it is said therein that the valuation given, by the plaintiffs in Schedules B and C, which are referred to in paragraph 19 of the plaint, is wrong and the correct valuation is given in Schedule 1 to the written statement. Hence, the valuation contained in the schedules to the written statements must be deemed to be the valuation of the properties on the date or dates of the mortgage bonds.
According to this schedule, the value of items 3, 4, 7, 8, 9 and 10 together is Rs. 19,000/- that of items 1 and 2, Rs. 15,100, that of item no. 6 is Rs. 13,950, and two different values of item No. 5, which defendants 1 to 5 had purchased, are given. There is, at present, an orchard also in possession of these defendants. The value of item No. 5 without the orchard is given as Rs. 2700 while the value of this property including the orchard is given us Rs. 4695/- the case of the contesting defendants, however, is that the orchard did hot exist. The mortgage bonds (Exts. 7 to 7/b) do not show any orchard on the relevant plots. The deposing plaintiff (P.W. 1) said at first that he went to village Hamidpur, which is item No. 5, for the first time in 1924 and saw the orchard but it 19 not possible to believe this statement for several reasons. According to his own statement, he was only about ten years old in 1924 and in cross-examination he stated that he saw the mortgaged properties for the first time after the death of his father who admittedly died in 1945. P.W. 2 a former employee of Madho Prasad Singh has said that the planting of trees of thig orchard began during the collectorate batwara. Admittedly Madho Prasad Singh was formerly a cosharer proprietor of village Hamidpur pur, and the collectorate batwara proceedings went on from 1925 to 1926.
In the batwara barabarda (Ext. K series) the two plots on which the orchard stands were recorded as parti kadim. P.W. 1 has said that the trees were planted when his father became the sole proprietor of these two plots after the batwara. It appears from Exhibit C, an extract from the order sheet of the batwara case, that after reallotment by the commissioner there was redelivery of possession in April May of 1928. No document has been filed to show that Madho Prasad Singh got delivery of possession over these two plots, before 1928. Hence, even according to the plaintiffs, trees were planted after May 1928, but the first mortgage bond is dated the 18th August 1925. On the other hand D.Ws. 1, 2, 3, 4 and 5 have said that the trees were planted in or about the year 1934. The evidence of the deposing defendant D.W. 1, and his employee D.W. 2, may be said to be interested. But there is no reason why D. Ws. 3 to 5, who have got lands near the orchard, would make a false statement for the defendants. In the circumstances, it must be held that the orchard came into existence in 1933 or 1934, that is, after the execution of the three mortgage bonds and the value of the orchard is irrelevant for the purpose of calculating the amount to be contributed by defendants 1 to 5. The value of item 5 on the date or dates of the mortgage bonds must, therefore, be taken as Rs. 2700 only.
18. Thus, the total value of the ten items of the mortgaged properties comes to Rs. 50,540. Admittedly, Madho Prasad Singh deposited Rs. 38,165, towards the satisfaction of the decretal dues of the mortgagees decree-holders. After taking into consideration these sums and the value of item 5 which was Rs. 2700 on the dates of the mortgage bonds, the amount which defendants 1 to 5 are liable to contribute comes to Rs. 2003.50 naiye paise. The plaintiffs are, therefore, entitled to get this sum with interest at six per cent, per annum from the date of the institution of this suit from defendants 1 to 5, and this amount shall be a charge on item 5 of the property until it is paid to the plaintiffs. In the result, the appeal is allowed in part and the judgment and the decree of the lower Court are set aside. The suit is consequently decreed in part against defendants 1 to 5 for the said amount with corresponding costs of both the courts and furture interest at six per cent, per annum.
Kanhaiya Singh, J.
19. I agree.