1. This appeal arises out of a suit for the recovery of possession of the property in dispute on a declaration that the defendant No. 1 has not acquired any title to it by purchase at a sale held in execution of a decree against the defendant No. 2, and in the alternative for a decree declaring that the plaintiffs would be entitled to possession of the property on the death of the defendant No. 2. There was also a claim for contribution on account of certain payments made by the plaintiff to save the property from being sold in execution of a mortgage decree, and for satisfaction of other debts. The property in dispute, Lot Chauratta, along with other properties belonged to one Gobind Nath Ray Chowdhury who died in 1873, leaving his widow Drobamoyi (the defendant No. 2) and a son Gopendra Nath. The son died in 1882, and the defendant No. 2 adopted a son Sree Nath who died in 1884. Thereupon Drobamoyi adopted the plaintiff No. 1 Tarak Nath in 1884, but subsequently ignoring his adoption, set up one Jogendra Nath as the adopted son in 1886. In 1891, Tarak Nath brought a suit against Drobamoyi and Jogendra Nath in respect of all the properties left by Gobinda Nath, which was compromised. By the compromise Tarak Nath was admitted to be the adopted son, he was to get a 6 annas share of the estate, and Jogendra Nath was to get the remaining 10 annas share, that in the event of Jogendra Nath dying unmarried his 10 annas share would devolve upon Tarak Nath and similarly on the latter dying unmarried his 6 annas share would devolve upon Jogendra Nath, but Drobamoyi was to remain in possession of the estate for her life, subject to the payment of certain debts, a certain sum of money to Tarak Nath as costs of litigation, and for building a house and an annuity to him for his life. It was agreed that Drobamoyi would execute mortgage-bonds jointly with Tarak Nath for raising money to pay off debts. It was further agreed that if Drobamoyi failed to pay any debt, and in consequence thereof the properties were put up to sale, it would be considered as a case of waste by Drobamoyi, and in such a case, Tarak Nath would in her life time get possession of the 6 annas share. On the 29th March, 1892, a decree was passed on the petition of compromise after it had been sanctioned on behalf of the minor Jogendra Nath by the Court. Jogendra Nath having subsequently died, the decree was amended by stating that Tarak Nath would be entitled to the 10-annas in the event of Jogendra Nath dying unmarried, and that the latter would be entitled to the 6-annas of Tarak Nath if he died unmarried—these terms having been omitted from the decree. On the 6th June, 1892, a mortgage-bond was executed in accordance with the terms of the compromise by Drobamoyi jointly with Tarak Nath in favour of Rai Dhanpat Singh Bahadur for Rs. 24,800, whereby 5 zemindaris including Lot Chauratta were mortgaged.
2. On the 6th April, 1896, Rani Mina Koer (the widcfw of Rai Dhanpat) obtained a preliminary decree upon the mortgage-bond against Drobamoyi and Tarak Nath. On the 29th September, 1896, Drobamoyi granted an ijara pattah for 20 years in favour of Rani Mina Koer in respect of the 5 zemindaris including Lot Chauratta.
3. It appears that before the litigation referred to above Drobamoyi took a mokarari lease of 10 bighas of land within the zemindari of the defendant No. 1, Syama Charan Ray Chowdhury, at an annual rent of Rs. 100. Syama Charan sued Drobamoyi and Tarak Nath for rent of the mokarari, and on the nth February, 1897 obtained a decree for Rs. 519-10-0 against Drobamoyi alone. In execution of that decree Lot Chauratta, the value of which is about a lac of rupees, was sold and purchased by Syama Charan for Rs. 100 only on the 15th July, 1897, and the sale was confirmed on the 24th August, 1897.
4. Rani Mina Koer took out execution of her mortgage-decree and the sale in execution of the said decree was fixed for the 4th April, 1898 but was postponed to the 9th May. Thereupon Drobamoyi and Tarak Nath executed three mortgage bonds on the 18th April, 1898 in favour of Aziz Mahomed Saha and others for the total sum of Rs. 54,000. Each of the bonds was for Rs. 18,000, and one-third share of the 5 zemindaris was mortgaged in each of the bonds. On the 19th April, 1898, Rs. 44,109 was paid in full satisfaction of the mortgage-decree obtained by Rani Mina Koer.
5. Drobamoyi brought a suit for setting aside the sale of Lot Chauratta but the suit was dismissed on the 3rd May, 1900, on the ground that it was barred by the provisions of Section 244 of the CPC. She then made an application on the 18th August, 1900 for setting aside the sale. That application, which was made more than three years after the sale, was dismissed, first, on the ground that it was barred by limitation, and secondly, on the ground that although there were grave irregularities in publishing the sale, there was no substantial injury inasmuch as Lot Chauratta was subject to an usufructuary mortgage for Rs. 60,000 and the sale was merely of a life-interest, and the value of the interest purchased was, therefore, nil.
6. On the 16th September, 1903, Drobamoyi in consideration of Rs. 10,000 conveyed her interest in all the properties including Lot Chauratta to the plaintiff No. 1, and the plaintiff No. 1 sold a moiety of Lot Chauratta to the plaintiff No. 2 on the 13th July, 1906.
7. The present suit was instituted by the plaintiffs Nos. 1 and, 2 on the 16th March 1908. The Court below dismissed the suit, and the plaintiffs have appealed to this Court.
8. It is contended on behalf of the appellants, first, that the interest which Drobamoyi had in the property was not, having regard to the terms of the solenama decree, a life-interest, secondly, that even if it was life-interest and could be sold, the sale held in 1897, at which the defendant No. 1, Syama Charan, purchased, was a nullity and nothing, therefore, passed to him by the sale, thirdly, that the plaintiff No. 1's right to present possession accrued during the lifetime of Drobamoye, under the forfeiture clause contained in the solenama decree; fourthly, that even if the plaintiffs were not entitled to possession of the property during the lifetime of Drobamoyi, they were entitled to a declaration that the sale would not be binding upon them after her death, and lastly, that the plaintiff No. 1 was entitled to a decree for the amount paid by him to discharge the encumbrances for which Lot Chauratta was proportionately liable.
9. As regards the first contention, viz., that under the compromise Drobamoyi did not take a life-estate but held the properties as a trustee, we think there is no force in it. In the suit brought by Tarak Nath, Drobamoyi in her written statement pleaded that she had at any rate a life-interest in the properties. In the petition of compromise it was stated that she shall remain in possession as she had been, of the 16-annas of the properties for her life as heir of her deceased son Gopendra Nath, and the decree passed upon the compromise expressly states that during her lifetime she shall remain in possession of the 16-annas properties as holder of a life-estate.
10. In subsequent transactions also the fact that she had a life-estate is distinctly admitted. In the mortgage-bond executed by Drobamoyi and Tarak Nath jointly in favour of Rai Dhanpat it is stated that Drobamoyi had a life-interest, and the same statement appears in the three mortgage-bonds executed by them jointly in favour of Aziz Mahomed Saha and others. Lastly, in the very conveyance taken by Tarak Nath himself from Drobamoyi it is stated that she had a life-interest. There can be no doubt, therefore, that she had a life-estate in the properties. The first contention must, therefore, be overruled.
11. The second contention is that it is competent to the plaintiffs to treat the sale which took place in 1897 as a nullity, in view of the finding in the execution case that no processes of attachment were levied upon the property. It appears from the judgment upon the application to set aside the sale that no process of attachment or sale was served, on or adjacent to the property sold, at all, that the value of Lot Chauratta was nearly one lac of rupees and was sold for only one hundred rupees. It was, however, held that Drobamoyi had mortgaged her entire interest in that estate for 20 years, of which only 3 or 4 years had passed, for a debt of Rs. 60,000 and as she had only a limited interest extending up to the time of her death the value of her interest may be said to be nil, and that, therefore, there was no substantial injury, and the application was accordingly dismissed. There was an appeal against the said order, and the Appellate Court confirmed it on the grounds that the application was barred by limitation, and that Drobamoyi's life-interest was mortgaged for Rs. 60,000.
12. It is contended that the Courts were mistaken in holding that there was a mortgage of Rs. 60,000 upon the property, whereas there was in fact no such mortgage at all. But the dismissal of the application is binding upon Drobamoyi and the plaintiff as purchaser of Drobamoyi's interest is concluded by the said order of dismissal.
13. It is contended, however, that the sale was a nullity because no process of attachment was served at all. We have been referred to the case of Mahadeo Dubey v. Bhola Nath Dichit . 1883 5 All. 86., in which it was held that a regular attachment is an essential preliminary to a sale in execution, but the case was considered by this Court in the case of Kishory Mohun Roy v. Mahomed Mujaffar Hossein . 1891 18 Cal. 188. and was not followed, and the Allahabad Court itself did not follow it in a later case. See Sheodhyan v. Bholanath . 1899 21 All. 311.. In the case of Kishory Mohun Roy v. Mahomed Mujaffar Hossein, this Court held that although the absence of attachment is a material irregularity a sale, after it has been duly confirmed and a sale certificate granted to the purchaser, is not to be considered as a nullity merely by reason of the absence of any attachment. We were also referred to the case of Sorabji Coovarji v. Kala Ragkunath . 1912 36 Bom. 156, but there the sale was attacked in the execution proceeding itself, and if the sale was void there was no necessity for taking such proceedings.
14. Having regard to the case of Kishory Mohun Roy v. Mahomed Mujaffar Hussein referred to above and the principle of the decision of their Lordships of the Privy Council in Tasadduk Rasul Khan v. Ahmad Husain . 1894 20 I.A 176, it must be held that the absence of an attachment, though an irregularity, does not render the sale absolutely void.
15. The third contention is that there was a forfeiture of Drobamoyi's life-estate because she allowed the property to be attached under Rai Dhanpat's decree and there was an order for sale of the properties on the 16th February, 1898. But apart from the question whether the forfeiture clause could be enforced, it appears that it was waived. After the properties were proclaimed for sale and the forfeiture had been incurred, Tarak Nath waived it by joining with Drobamoyi in executing the mortgages to Aziz Mohamed Saha and others and later on more clearly by taking the conveyance from Drobamoyi herself, which conclusively show that the forfeiture was waived and she was treated as having a subsisting interest.
16. The next question is whether the plaintiffs are entitled to a decree declaring that the sale passed only the life-interest of Drobamoyi and that the plaintiffs would be entitled to possession of the property on the death of Drobamoyi.
17. The plaintiff stated in the 21st paragraph of the plaint that, as the defendant No. 1, Syama Charan, had after his purchase of the Chauratta got his name registered in the Collectorate under the Land Registration Act as the proprietor thereof and not as owner of the life-interest of Drobamoyi, he has acted to the prejudice of the plaintiff's reversionary right, and that there should be a declaratory decree to the effect that the defendant will have no right to possess the said property Lot Chauratta on the death of Drobamoyi.
18. Now the name of the defendant No. 1 was registered in the Collectorate on the 9th February, 1899, and the present suit was instituted on the 16th March, 1908, i.e, more than 6 years after. There is no Article of the Limitation Act specifically applicable to a suit for declaration of title to immovable property, but the current of recent decisions is in favour of the applicability of Article 120 to declaratory suits in respect of title to immovable property. The authorities on the point were discussed in the case of Mohabharat Saha v. Abdul Hamid . 1905 1 C.L.J 73. and we agree with the view taken in that case.
19. If, however, there is a fresh invasion of the plaintiff's right, as in the foot-note case in Robert Skinner v. Shanker Lal . 1909 31 All. 10 N or in the case of a continuing wrong as in the case of Brojendra Kishore Roy Chowdhury v. Bharat Chandra Roy (Brojendra Kishore Rai Chaudhuri v. Abdul Razac Chowdhuri)8, there is a fresh cause of action. The learned Pleader for the appellant contends that there was a fresh cause of action in this case. It is pointed out that the defendant No. 1, Syama Charan, has from the very first been attempting to make out a case that the mokarari lease for the rent of which Lot Chauratta was sold, (although it was granted to Drobamoyi alone) was a lease taken on behalf of the estate and the sale, therefore, was binding upon the estate. In 1896 Syama Charan brought a suit for rent against Drobamoyi as well as against Tarak Nath, though the suit was decreed against Drobamoyi alone. A similar suit was brought in 1906 against both of them, though it was dismissed against Tarak Nath.
20. It is accordingly contended that this attempt on the part of the defendant No. 1 to establish that the mokarari lease was taken for the estate, and that the decree in execution of which Lot Chauratta was sold was binding upon the estate (rent suit of 1906 being within 6 years of the present suit) constitutes a fresh cause of action. These suits, however, relate to the mokarari and there has been no fresh assertion of hostile title in respect of Lot Chauratta.
21. The plaintiffs did not in the plaint set up any fresh cause of action. The only cause of action set up was the registration of the name of Syama Charan in the Collectorate, which took place in 1899 about 9 years before this suit, and in the 24th paragraph of the plaint the cause of action is stated to have arisen on the 6th September, 1903 when Drobamoyi relinquished her life-interest to Tarak Nath. Under the circumstances we are unable to hold that there was a fresh cause of action for the suit.
22. Then it is pointed out on behalf of the respondents that there has been undue delay in bringing the suit and the Court should not grant a declaratory decree if there has been undue delay. The sale took place in 1897, the plaintiff No. 1 obtained the conveyance from Drobamoyi in 1903, and the suit was not instituted until 1903 and the delay has not been accounted for.
23. Then again although after the death of Jogendra Nath the compromise decree was amended by bringing it into conformity with the judgment by stating that if Jogendra Nath died unmarried, Tarak Nath shall get his 10-annas share, this Court in making the Rule absolute (for amending the decree) observed that it would have been desirable if the amendment could be made in the presence of the legal heirs of the deceased Jogendra Nath (in his natural family) and stated that it must be distinctly understood that such rectification of the decree would not affect the rights of the legal heirs of Jogendra Nath, if he has left any heirs.
24. It is contended that although Jogendra Nath's heirs, if any, may not be necessary parttes they are proper parties. The object of a declaratory decree is to quiet title, and the Court should not make such a decree when it would not be conclusive.
25. In the circumstances it is unnecessary to remand the case to the Court below for decision of the question whether only the life-interest of Drobamoyi or the entire interest in Lot Chauratta passed by the sale which was left undecided by the Court below; as it held that the suit for a declaratory decree is barred by limitation and that all the proper parties are not before the Court.
26. The last question is whether the plaintiff No. 1, Tarak Nath, can claim contribution in respect of the sum paid by him by which Chauratta was freed from the mortgage.
27. As already stated Tarak Nath and Drobamoyi executed a mortgage for Rs. 24,800 (at 12 per cent interest) in favour of Rai Dhanpat Singh on the 12th June, 1892, by which the five zemindaris including Lot Chauratta were mortgaged. A decree was obtained on the mortgage by Rani Mina Koer the widow of Rai Dhanpat, on the 4th April, 1896 for Rs. 39,234-0-6. In order to pay off the said decree by Tarak Nath and Drobamoyi on the 18th April, 1898 raised Rs. 54,000 by three mortgages executed in favour of three persons Aziz Mahomed, Abdur Rahim and Hajjutallah respectively, each of the mortgages being for Rs. 18,000, and a one-third share of the five zemindaris was given as security in each. Exhibit 13 (Extract of Register of Suits) shows that Rs. 44,109-9-0 was paid into Court by Tarak Nath and Drobamoyi and the decree-holder certified payment of the decretal amount, as appears from the order dated the 19th April, 1898. Lot Chauratta along with the other 4 zemindaris was thus released from the mortgage of Rai Dhanpat.
28. Tarak Nath obtained a conveyance from Drobamoyi in respect of her life-interest in the zemindaris, including Lot Chauratta on the 16th September, 1903 and it appears that in order to pay off the debts contracted by him along with Drobamoyi, he raised money by executing a conveyance in respect of an 8 annas share of 4 zemindaris (not including Lot Chauratta) on the 24th September, 1903 in favour of Raja Janki Ballav Sen for Rs. 77,000 and a mortgage in respect of the remaining shares for Rs. 80,000 on the 4th October, 1903. The three mortgage-bonds in favour of Aziz Mahomed and others dated the 19th April, 1898 were paid off by Tarak Nath with the money so raised, and the endorsements on the back of the bonds show payment by Tarak Nath alone.
29. Lot Chauratta when it was purchased by the defendant No. 1 on the 19th July, 1897, was jointly liable along with the other 4 zemindaris under the mortgage executed by Drobamoyi and Tarak Nath in favour of Rai Dhanpat on the 12th June, 1892, and there is no doubt that it was freed from that liability by the payment of Rs. 44,109-9-0 on the 19th April, 1898 by Tarak Nath and Drobamoyi.
30. That being so, it is contended on behalf of the appellant that Lot Chauratta is liable to contribute rateably to the debt secured by Dhanpat's mortgage under Section 82 of the Transfer of Property Act and the plaintiff No. 1 having redeemed that mortgage, he has, under Section 95 of the Transfer of Property Act, a charge on Lot Chauratta in proportion to the amount paid in redeeming the mortgage. On the other hand, it is contended on behalf of the respondent that Dhanpat's mortgage was paid not by Tarak Nath alone, but by him and Drobamoyi by executing three mortgages in favour of Aziz Mahomed and others, and it is only the latter mortgages that were paid off by Tarak Nath. It is further argued that Aziz Mahomed and others could not be created as assignees of Dhanpat's mortgage and there could be no subrogation through those mortgagees, first, because that mortgage had merged in a decree, secondly, there could be no subrogation in respect of portions of the properties piecemeal, there being three mortgages in each of which a one-third share of the properties was mortgaged and lastly, there was no agreement by them, either with the creditor or the debtor, that they would get the benefit of the payment and stand in the position of Dhanpat it is unnecessary to consider whether having regard to the fact that Dhanpat's mortgage was fully deemed, the three mortgagees Aziz Mahomed and others could not jointly claim subrogation, and whether an agreement could not be implied under the circumstances that they would be subrogated to the rights of Dhanpat. The plaintiff does not put his case on that basis. There is no question that Lot Chauratta along with 4 other zemindaris were jointly liable for Dhanpat's mortgage, and the defendant No. 1, Syama Charan, purchased the life-interest of Drabamoyi (it must for the present purpose be taken that he purchased only the life-interest) in Lott Chauratta at the auction-sale held in July 1897 subject to that liability. Tarakj Nath and Drobamoyi raised money by, mortgaging the five properties to Aziz Mahomed and others, but as the life-interest of Drobamoyi in Lot Chauratta had then passed to Syama Charan at the auction-sale, that life-interest could not be mortgaged. However, Tarak Nath and Drobamoyi did raise the money and paid off Dhanpat's mortgage and there was a right of contribution against Syama Charan in respect of the life-interest in Lot Chauratta purchased by him. That payment was made within twelve years of the suit. It is true that Dhanpat's mortgage was paid off by Tarak Nath jointly with Drobamoyi by raising money on mortgages in favour of Aziz Mahomed and others. But Tarak Nath, who subsequently acquired the interest of Drobamoyi, alone paid off the mortgage of Aziz Mahomed and others. Drobamoyi is a party to this suit. In these circumstances, we think that Tarak Nath is entitled to claim rateable contribution of the mortgage debt from Lot Chauratta.
31. Under Section 93 of the Transfer of Property Act as interpreted by the Judicial Committee in the case of Ahmad Wali Khan v. Shamsh-ul-Johan Begam . 1906 28 All. 482 P.C], Tarak Nath has charge on Lot Chauratta, which can be enforced under Section 100 of the Transfer of Property Act.
32. It is contended on behalf of the respondents that the prayers in the plaint do not show the precise nature of the claim in respect of the contribution, and secondly, that there is no prayer for any charge. So far as the first contention is concerned, it appears that in the 19th paragraph of the plaint the payment of Dhanpat's mortgage and the liability of the defendant No. 1 to pay the debt was set up, and in the (gha) and (cha) prayers the plaintiff claimed a decree in respect of the moneys rateably payable by the defendant No. 1. There is no express prayer for a charge, but there is the general prayer in the plaint and we think that relief can be granted upon the general prayer.
33. The Court below holds that there are no materials, first, for apportioning the mortgage-debt between Lot Chauratta and the other four zemindaris and secondly, for apportioning the liability between the life-interest of Drobamoyi and the interest which Tarak Nath would take after her death. It appears, however, that before the purchase of Lot Chauratta by Syama Charan, Drobamoyi had given an ijara of all the zemindaris to Rani Mina Koer at a certain lump sum rental and Syama Charan after his purchase has been suing for the proportionate amount of rent in respect of Lot Chauratta and realising the proportionate rent for the last 18 years. That we think is some material for apportioning the liability between Lot Chauratta and the four zemindaris. The apportionment of liability between a tenant for life and a remainderman or the reversioner is rather a difficult matter. There being no case in our Courts in which the question has been raised, we think the principle upon which calculation is made in such cases in England and America should be adopted. As pointed out in the Tagore Lectures, 1876, page 370,
“Both in England and America the standard life tables have been adopted as the basis of calculation in such cases and the rule is settled that the present worth of an annuity equal to the annual interest running during the number of years which constitutes his expected life represents the sum which A (the tenant for life) liable to pay B (the remainderman or the reversioner), being liable for the balance after subtracting this sum from the mortgage-debt paid by A (tenant for life) to the mortgagee,”
and that,
“If the reversioner or remainderman redeems the mortgage, the rule would be the exact converse of what is stated here.”
34. We think that for the ends of justice the case should be remanded to the Court below in order to allow the parties to adduce evidence on the question of valuation of Lot Chauratta and the other four zemindaris respectively, and also on the question of valuation of the life-interest of Drobamoyi and the interest which Tarak Nath would take after her death.
35. The Court below will apportion the mortgage-debt between Lot Chauratta and the other four zemindaris, and also apportion the liability between the life-interest of Drobamoyi payable by the defendant No. 1 and the interest which the plaintiff No. 1 would take after her death and pass a decree for the amount which the defendant No. 1 may be found liable to pay as purchaser of the life-interest of Drobamoyi in respect of Lot Chauratta, the amount being made a charge upon Lot Chauratta. It is to be distinctly understood, however, that the interest purchased by Syama Charan at the sale held on the 15th July, 1897, is taken to be the life-interest of Drobamoyi 1 in Lot Chauratta only for the purpose of reteable contribution of the mortgage-debt in the present suit, and is not to be taken as in any way deciding the question whether the sale passed only the life-interest of Drobamoyi or the entire interest in Lot Chauratta, a question which has not been decided by the Court below or by us. That question is expressly left open.
36. Under the circumstances of the case, we direct each party to pay its costs in both Courts up to this stage. Costs with respect to the claim for contribution will abide the result.
V.B/R.K
37. Appeal allowed;
38. Case remanded.