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PETITIONER: KIDAR LALL SEAL AND ANOTHER

       Vs.

RESPONDENT: HARI LALL SEAL.

DATE OF JUDGMENT: 18/12/1951

BENCH: BOSE, VIVIAN BENCH: BOSE, VIVIAN FAZAL ALI, SAIYID

CITATION:  1952 AIR   47            1952 SCR  179  CITATOR INFO :  D          1971 SC2177  (7)  RF         1978 SC1329  (28)

ACT:  Transfer of Property Act (IV of 1882), ss. 82,  92--Indian Contract   Act (IX of 1872),  s.  43--Mortgage--Contribution between   co-mortgagors--Liability  to   contribute--Whether proportionate  to value of properties mortgaged, or  benefit derived by each mortgager- General and special  law--Equita- ble considerations.

HEADNOTE:     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 contribution 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  con- tribute proportionately to the value of the shares or  parts of  the mortgaged property owned by them and not in  propor- tion to the extent of the benefits derived by each of them. As ss. 82 and 92 of the Transfer. of Property Act  prescribe the  conditions  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  consid- erations.

JUDGMENT:    CIVIL  APPELLATE  JURISDICTION: Civil Appeal No.  101  of 1950.  Appeal by special leave from the Judgment and  Decree dated the 20th September, 1949, of the High Court of Judica- ture  at Calcutta (Hurries C.J.and Chatterice 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  Calcutta  High Court  in  Suit  No.  343  of  1943  instituted  under   the Original Jurisdiction of the High Court).

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 M.C.     Setalvad,     Attorney-General     for      India (B. Sen,with him) for the appellant.   S.C.   Isaac   (B.   Barterice,   with   him)   for    the respond- ent.      1951. December 18.  The leading judgment was  delivered by Bose J. Fazl Ali J. agreed, 180      Bose  J.--This  is a defendant’s appeal in a  suit  for contribution  brought by the son of a mortgagor against  the co-mortgagors.     The parties are related as below :--                   Balai Lall Seal                     (died1917)                         I                  Megharnala Dassi                     (died 1945)     I             I             I          I          I Bejoy Lall   Biswa Lall  Tarak Lall   Kedar Lall   NakuLall  (D. 23-5-33)         (D. Nov. 1936)  Deft 1       Deft. 2                                       (Born        (Born     I                        I  Jugal Lall             Hari Lall     22-11-1907)  7-2-1910)                         (Plff.)    The mortgagors were the plaintiff’s father Tarak Lall and Tarak’s  two brothers Kedar and Naku. The mortgage was  exe- cuted on the 12th June, 1936, in 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, 1989.     In execution the mortgagee proceeded against the proper- ty  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  execu- tion and on the 11th of March, 1943, the claim was satisfied in this way.     An order of the Court was obtained sanctioning 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 was directed that the consid- eration should first be applied in payment of the claim  and costs  and that the decreeholder should execute a  reconvey- ance  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. 181     This  was done and 20, Round Tank Lane, 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 lull  satisfaction  of the claim and costs then outstanding.  The Mills executed  a reconveyance of the rest of the properties to the mortgagors in release of the mortgage on the same day.     In  addition to this Rs. 97, 116-11-0, further  sums  of Rs. 14,400 and Rs. 8,100 had also been paid before the dates of  these transactions.  These sums were paid by a  Receiver who  had been appointed by the Court pendente  lite.   These sums came out of the rents which the Receiver obtained  from the plaintiff’s property, 20 Round Tank Lane.     The  plaintiff says that in this way he paid a total  of

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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 Rs. 79,744-7-4 from the  two  defendants and that each of them is liable  for  a half of that sum namely, Rs. 39,872-3-8.     In  addition  to this the plaintiff had  incurred  costs amounting to Rs. 1,144-8-6 in resisting Mst. Gyarsi’s  claim 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  accord- ingly  comes  to Rs. 40,253-11-10. In addition to  this  the plaintiff asked 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,    24 182    It  will be seen that the plaintiff claims on  the  basis that each of the three mortgagors is liable to contribute in equal shares towards payment of the mortgage  debt.   The defendants did not deny their liability to contribute. They only challenged the basis on which it was to be comput- ed.  They ,pleaded a special agreement between Tarak Lal and themselves  under which their liabilities were to be  calcu- lated 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. 53,481-11-4.  They therefore agreed  at the date of the suit mortgage that their  respec- tive liabilities as between themselves should be proportion- ate 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 necessary 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 principle;  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 originally  joint  family properties, but in the  year  1932 there  was  a partition which was compelled by reason  of  a suit filed by Tarak 183 against  his  brothers and mother. The upshot was  that  the properties were divided as follows: -     (1)  Bejoy,   Kedar,  Naku  and  the   mother  Meghamala obtained Chittaranj an Avenue.     (2)  Tarak (plaintiff’s father) obtained 16  Round  Tank Lane and 20 Round Tank Lane.

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   (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  joined 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  Chittaranjan, Strand,  Dum Dum and 20 Round Tank Lane for Rs.  5,000.  The mortgagee was Binode 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  property  for Rs. 7,000 to 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  died  on  the 23rd of May, 1933,  leaving  a  son Jugal.     On  the 12th of June, 1936, came what I have called  the suit  mortgage executed by the three  brothers,Tarak,  Kedar and Naku, for Rs. 80,000. The properties mortgaged were-    (1) 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 184 later  decretal charge; Rs. 11,519-11-0 in  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 Tarak.  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  de- tails but only giving an overall 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,   Blackman, 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 matters not  for  present  purposes whether  those debts are secured on these properties 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  in 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 ?

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   Three solutions readily suggest themselves.  One is that the  three contribute equally.  In that event B would pay  A Rs. 5,000 and C would pay Rs. 5,000. 185     A second solution is that they pay in proportion to  the extent  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. In that event  B  would have to pay 2/6 of Rs. 15,000, that is Rs. 5,000, and C  1/6 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  most equitable  solution is obviously the second. But the  matter is not as simple as that. There are certain statutory provi- sions which must first be examined.     The  learned  counsel for the plaintiff-respondent  con- tended  that  section  43 of the Contract  Act  applied.  He relied on the following provision :-     "Each  of two or more joint promisors may  compel  every other  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 joint promisors makes default  in such  contribution, the remaining joint promisors must  bear the loss arising from such default in equal shares."     The argument is that unless a contrary intention appears from "the contract" the. loss must be borne equally. It  was contended,  and with that I agree, that the words "the  con- tract"  can  only  refer to the main  contract  between  the promisors  on  the one side and the promisee on  the  other. That contract in this case is the suit mortgage. There is no contract to the contrary in the document, therefore, it  was contended, the section must apply.  That of course would  be the  clear, logical and simple conclusion ii there  were  no other  provision  of  law to consider.  But we  are  dealing here  with  a mortgage and so we have also to  look  to  the provisions of the Transfer of Property Act. 186     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  82 and 92. The first confers  a  right  of contribution.  The  second 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  owner- ship  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 Act,  section

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43  of the Contract Act and what I might term the  principle of beneficial, as opposed to proportionate or equal, distri- bution 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. 187 equitable estate has no application in India. So also refer- ring  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 Judge of the  Federal Court) ruled Court equitable considerations in the Allahabad High Court in matters of subrogation under sections 91,  92, 101 and 105, Transfer of Property Act, in Hira Singh v.  Jai Singh(2)  and  so did Stone C.J. and I in  the  Nagpur  High Court in Taibai v. Wasudeorao (3). In the ease of section 82 the Privy Council held in Ganesh Lal v. Charan Singh(4) 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 principle the  deci- sion 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 contracts  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  mort- gage,  is now statutory and is embodied in the  Transfer  of Property Act read with the Civil Procedure Code. I am  clear we cannot travel beyond these statutory provisions.     Now,  when parties enter into a mortgage they  know,  or must be taken to know, that the law of mortgage provides for this very question of contribution. It confers rights on the mortgagor who redeems and directs that, 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.I.R. 1937 All. 588, at 594.    (4) (1930) 57 I.A. 189. 188 shall  be reimbursed in a particular way out  of  particular properties.  The parties are at 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 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

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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 consider whether that is  the best possible solution but the rule at any rate obviates the necessity of roving enquiries into the objects of a  borrow- ing  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 shut 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  agree- ment  pleaded by the defendants.  The only evidence in  sup- port  of it is that of the first defendant Kedar.  According to him, the agreement was an oral one 189 though  the parties contemplated writing  and  registration. His  explanation  for lack of any writing is  this.  He  was asked  whether anything was put down in writing and  he  re- plied :-     "No, nothing was done then, but there was an understand- ing 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  in  connection with the adjustment ?"     and he replied’ ’Yes". He also tells us that the parties regarded  the matter as confidential and so only three  per- sons  were  present, Tarak, Naku and himself. It  is  to  be observed  that  Naku, 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  speaking  nearly thirteen years 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  writ- ing  is  in  contemplation is a difficult  and  complex  one involving  delicate considerations of much nicety even  when the preliminaries are all in writing.  The turn of a  phrase here,  the use of a word there, may make a world of  differ- ence.  The  law regarding this was examined by  me  at  some length  in  the  Nagpur High Court in  Shamjibhai  v.  Jagoo Hernchand  Shah (1).  How much greater are the  difficulties when  we  do not know the exact words the parties  used  and have  to delve into the mind of a dead man  (Tarak)  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  (1) I.L.R. 1949 Nag. 381 at 586-588, and 598         25 190

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witness is a hesitant and reluctant one, as his  examination discloses,  and even evasive on some points; also  when  the defendants have deliberately withheld from the Court assist- ance  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  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  regis- tration.       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 after 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 made 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. 191 It  is  just possible that there were negotiations,  but  on those  broad facts I am not prepared to believe the  witness when  he  tells  us, or rather suggests,  that  the  parties reached  finality.   It would in any event be  dangerous  to believe  a witness in circumstances like this. But when  the defendants deliberately withheld from the Court that assist- ance  which is its due I can only conclude that  their  case was  too  shaky  to stand further 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 the  rule but  it  can  be pushed too far as their  Lordships  of  the Judicial    Committee    pointed   out   in    Virappa    v. Periakaruppan(1).   In the present case, the  learned  Judge who tried the case believed Kedar not because of his  demea- nour but because the learned Judge considered that his story was  inherently probable.  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 have agreed.     That  leaves at large the nature of the relief to  which the plaintiff 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

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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 covenant 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. 192 "declare  the amount so due" at the date of the decree.  But reading  the  two  reliefs together, I am  of  opinion  that though the claim is inartistically worded the plaintiff  has in  substance asked 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  asked 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  techni- cality of pleading when the substance of the thing is  there and no prejudice is caused to the other side, however  clum- sily  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  be- tween  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, (a) lot the values of the  various properties mortgaged at the date of  the  mort- gage.     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  exceeding  Rs. 40,253-11-10 with interest against either defendant, I would direct  that his liability be reduced  to  Rs.  40,253-11-10 plus interest.      When 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 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

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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.