1. This is an appeal by defendant 2 in a suit for contribution under para. 1 of Section 82 of the Transfer of Property Act. The facts essential for the determination of the questions raised before us are not in controversy and may be briefly recited. On 25th March 1897, Khaja Obedullah executed a mortgage of a third share in each of two properties, Attapur and Paharpur, to Mahomed Sidiq to secure a loan of Rs. 25,000, which carried interest at 18 par cent, per annum. The mortgagee sued to enforce his security, obtained a decree on 20th November 1905 and in execution thereof had the mortgaged properties advertised for sale. Meanwhile, the interest of the mortgagor in Attapur, which for the sake of brevity we shall call A, had been sold in execution of a decree on a pusing mortgage dated 9th June 1897 and had passed on 21st September 1904 into the hands of one Jobraj Lal, now represented by the plaintiff. The interest of the mortgagor in Paharpur, which we may call B, had also passed out of his hands, and had, by successive transfers dated 18th May 1898, 29th September 1902 and 7th November 1902, vested in defendant 2. Consequently, when the mortgagee-decree-holder took steps for the sale of the mortgaged properties, the purchaser of A satisfied the decree on 23rd October 1906 by payment of Rs. 7,456. He then instituted this suit on 30th September 1909 for recovery of a proportionate amount from defendant 1, namely rupees 5,964, together with interest thereon at 18 per cent per annum; he also prayed that this sum might be declared a charge upon B. The suit was originally brought against defendant 1, on the assumption that she had purchased B but when it subsequently transpired that B belonged not to defendant 1, but to her son, defendant 2, the latter was joined as a party on 17th December 1909, that is, more than three years after the satisfaction of the mortgage-decree. Three questions, consequently, arose for consideration in the Court, namely, first, was the suit barred by limitation, secondly, was the plaintiff entitled to a charge upon B, and thirdly what was the amount recoverable by the plaintiff? The Sub-ordinate Judge has held that the suit is not barred by limitation, as the plaintiff is entitled to a charge on B, enforceable within 12 years from the date when the money sued for became due (Article 132, Sch. 2, Lim. Act). The Sub-ordinate Judge has also found that the plaintiff was entitled to receive Rs. 5,026, with interest thereon at 12 par cent, per annum from date of deposit to date of suit, to be realised by sale of B. Defendant 2 has appealed to this Court, and has contended, first, that the suit is barred by limitation as the plaintiff has no charge for the realisation of the sum due to him, and secondly, that the sum decreed has been ascertained on erroneous principles. In support of the first ground, reliance has been placed upon the decision in Nawab Jahan Ara Begum v. Mirza Shuja-ud-din . 1905 9 CWN 865.. In that case, a mortgagee had obtained a decree on his mortages, which was satisfied by one of several representatives of the deceasad mortgagor. It was held that Sections 82 and 95 of the Transfer of Property Act, were inapplicable, that the representative who paid up the decretal amount did not thereby acquire a charge on the mortgaged property, and that consequently, to a suit for contribution brought by him the three years' rule of limitation contained in Article 61 or Article 99 Sch. 2, Lim. Act, was applicable. It need not be disputed that the principle, which underlies the decision in Nawab Jahan Ara Begum v. Mirza Shuja-ud-din, assists the contention of the appellant; but it is worthy of note that a contrary rule was adopted in Raushan Ali v. Kali Mohan . 1906 4 CLJ 79., where Ghose, J., held, with the concurrence of Gaspersz, J., who was a party to the decision in Nawab Jahan Ara Begum v. Mirza Shuja-ud din, that where one of two co-mortgagors pays off the entire mortgage-debt, he occupies the position of the mortgagee when he seeks contribution from his co-mortgagor. This view is in accord with the decisions in Umrunnissa v. Muhammad Yar Khan . 1881 3 All 24.; Pancham Singh…(Defendant); v. Ali Ahmad…(Plaintiff).* . 1882 4 All 58.; Ashfaq Ahmad v. Wazir Ali . 1889 11 All 423; Nura Bibi v. Jagat Narain . 1886 8 All 295.; Bhagwan Das v. Har Dei . 1904 26 All 227.; Ibn Hasan v. Brij Bhuksan . 1904 26 All 407 FB.; Bhagwan Das v. Karam Husain . 1911 33 All 708; Har Prasad v. Raghunandan Prasad . 1909 31 All 166; Danappa v. Yamnappa . 1902 26 Bom 379.; Asansat v. Yamana . 1878-80 2 Mad 223.; Moidin v. Cothumanganni . 1888 11 Mad 416.; Ghulam Maula Khan v. Banno Khanam . 1901 4 OC 273.. We may further observe that the view taken in Nawab Jahan Ara Begum v. Mirza Shuja-ud-din is contrary to the rule adopted in Magniran v. Mehdi Hossein Khan . 1904 31 Cal 95., to which the attention of the Court was apparently not invited. An examination of the cases shows that Nawab Jahan Ara Begum v. Mirza Shuja-ud-din stands alone, and it is really inconsistent with the decision of the Judicial Committee in Ahmad Wali Khan v. Shamsh-ul-Jahan Begum . 1906 28 All 482. In this case the Judicial Committee construed Section 95 of the Transfer of Property Act, which is in these terms:
“Where one of several mortgagors redeems the mortgaged property and obtains possession thereof, he has a charge on the share of each of the other co-mortgagors in the property incurred in so redeeming and obtaining possession.”
2. It was ruled that the section should not be limited in its operation to mortgages under which possession passes, and that it was more reasonable to construe the section distributively, to make the condition of obtaining possession apply only to the cases in which its fulfilment is from the nature of the mortgage possible, and in other cases to make the charge follow upon redemption. It is plain that if this principle be applied to the case before us, the objection of the appellant must be held entirely groundless. It cannot also be disputed that this conclusion, as is clear from the case of Digambar Das v. Hemendra Narain . 1910 5 IC 165., is in harmony with what is widely recognised as the rule of justice, equity and good conscience. The principle which underlies the rule is thus formulated by Pomeroy in his work on Equity Jurisprudence, Vol. 3, Articles 1221, 1222:
“Where a party interested in the premises, who is not personally and primarily liable as the principal debtor for the whole mortgage debt; pays the mortgage to the holder thereof, he is entitled to regard the transaction, as an equitable assignment of the mortgage to himself, and to keep it alive as security of his own rights against others, who are owners of or interested in the land. Any such person who redeems, no matter how small a portion of the premises he may own, or how partial may be his interest, must redeem the entire mortgage by paying the whole mortgage debt. The doctrine of contribution among all those who are interested in having the mortgage redeemed, in order to refund the redemetor the excess of his payment over and above his own proportionate share, and the doctrine of equitable assignment in order to secure such contribution, are the efficient means by which Equity completely and most beautifully works out perfect justice and equality of burden.”
3. To the same effect is the exposition by Sheldon in his work on Subrogation (Article 169):
“One of several joint debtors will, as against his co-debtors, ordinarily be subrogated to the securities and means of payment of the common creditor whom he has satisfied, so as to enable him to recover from his co-debtors, by means thereof, their proportional share of the indebtedness which he has discharged; and this, as in other cases of subrogation, arises rather from natural justice than from contract. Each joint debtor is regarded as the principal debtor for that part of the debt which he ought to pay, and as a surety for his co-debtors as to that part of the debt which ought to be discharged by them.”
4. A similar reason for the rule is assigned by Harris in his work on Subrogation (S. 424):
“The payment (by one of two joint debtors) would not surely so absolutely extinguish the debt as to deprive the paying debtor of his right to contribution, to obtain which he must be subrogated, or he must take the position of a simple creditor and sue his co-debtor in assumpsit. The former course would serve to prevent a multiplicity of suits. The rule to be applied between them should be the same as between principal and surety. This rule applies as well to joint mortgagors, they being joint debtors or even if they be joint co-sureties.”
5. Jones on his treatise on Mortgages (Vol. 1, Article 877) defends the rule on a similar ground:
“When a mortgage is paid by one entitled to redeem, who is under no obligation to pay it although he does not take a formal assignment of it, he is subrogated to the rights of the mortgagee in the mortgaged property, and holds the title so acquired as against subsequent encumbrances, although he had also acquited the equity of redemption. In such case, no proof of intention on his part to keep the mortgage alive is necessary to give him the benefit of if his payment of the mortgage and his relation to the estate are in aid of his title to strengthen and uphold it.”
6. The injustice which might result if this rule were not adopted is forcibly described by Shepley, C.J in Watkins v. Eaton . 1849 30 Maine 529:
“If one, who may be obliged to redeem the share of a co-tenant to relieve his own share from incumbrance, could have no right to retain the share of such co-tenant as security and to obtain a reimbursement of the amount equitably chargeable to it, he might utterly fall to obtain compensation: and yet his co-tenant, without making any payment might be entitled to the full possession and benefit of his share of the land discharged from the incumbrance. The law cannot be justly chargeable with such results, as produced by conformity to its provisions. The principle is well established and is of frequent application in the redemption of mortgages, that one having a legal interest in an estate under incumbrances, may redeem the whole estate, when necessary, to enable him to redeem his own share or to relieve his own title from incumbrance, even against the pleasure of a co-tenant or other owner, and may be regarded as the assignee of the iucumbrance upon the other shares or interests, and may retain possession of them to secure a reimbursement of the amount equitably chargeable to them.”
7. It is consequently plain that the decision in Nawb Jahan Ara Begum v. Mirza Shuja-ud-din not only stands by itself, but is also not well-founded on principle. On the other hand, the view adopted in Raushan Ali v. Kali Mohan is consistent with the rules of justice, equity and good conscience: but we may observe parenthetically that we must not be taken to approve of another proposition enunciated in the same case, namely, that an assignee of a leasehold interest created by one of the co-mortgagors, though entitled to claim contribution, cannot claim a charge against the shares of the co-mortgagors of the lessor. We hold accordingly that when one of several mortgagors redeems the whole mortgage, he acquires a charge on the share of each of his co-mortgagors for his proportion of the expenses properly incurred in the redemption of the property. This principle is obviously applicable to the case before us although the mortgage debt was satisfied by a purchaser of a portion of the mortgage property after a decree had been obtained on the mortgage. The purchaser who redeemad the mortgage was, for the purposes of the rale, in the same position as if he were one of two joint mortgagors: Mohan v. Kashinath . 1907 3 NLR 92.. The fact that a decree had been obtained on the mortgage was also immaterial, because a decree obtained on a mortgage does not extinguish the security, though the security may be merged in the decree, and the judgment recovered in any form of action is still but a security for the original cause of action, until it be made productive in satisfaction to the judgment-creditor: Bibi Jan v. Sachi Bewail . 1904 31 Cal 863 FB.; Purnamal v. Venkata . 1897 20 Mad 486.; Surjiram v. Barhamdeo . 1905 2 CLJ 202.; Drake v. Mitchell . 1803 3 East 251; Lowry v. Williams . 1895 1 IR 274.; Economic Life Assurance Society v. Usborne . 1902 AC 147. Indeed, it has been held that the right to claim contribution is the same, whether the mortgage is redeemed in the usual way or whether the debt is realised by a forced sale of the property of one of several owners of the equity of redemption: Rajah of Vizianagaram v. Rajah of Setrucherla . 1903 26 Mad 686., Ibn Hasan v. Brij Bhukhan.
8. Wo hold accordingly that the plaintiff is entitled to a charge for such sum as the defendant may be called upon to contribute, and in his view no question of limitation arises. The first ground urged by the appellant consequently fails. In support of the second ground, it has been argued that the values of A and B and the date of the mortgage of 25th March 1897 have not been correctly determined. This contention is well-founded only in respect of A. As regards B, the plaintiff stated in the plaint that the value was Rs. 20,000; this was not specifically or by necessary implication denied in the written statement; consequently under R. 5, O. 8 of the CPC, the allegation of the plaintiff must be taken to have been admitted by the defendant. As regards A, the plaintiff stated, in his plaint, that its value was Rs. 10,000, but that it was subject to a prior charge for Rs. 5,000 under a usufructuary mortgage, dated 14th December 1885. The defendant, in his written statement, disputed this valuation of A. The Sub-ordinate Judge has found that the prior charge was real, but that the value of A, when unencumbered, was two-thirds of Rs. 22,000, as shown by a conveyance dated 28th September 1899. This conclusion is erroneous, because A is not proved to be identical with the property mentioned in the conveyance. We have, however, other materials on the record from which the value of A may be determined. On 21st September 1904, was Sold in execution of a decree on a puisne mortgage for Rs. 10,540. This sum represents the value of A when not encumbered, reduced by the value of the prior encumbrance, Rs. 5,000, and amount chargeable on A in 1904 on tbs foot of the mortgage on 25th March 1897. From these data, the value of A, when not subject to encumbrances, turns out to be Rs. 17,450. The value of A, when the mortgage of 25th March 1897 was granted, was thus Re. 12,450. Consequently, on the principle explained in Bhagwan Singh v. Muhammad Mazhar Ali Khan . AIR 1914 All 330, the defendant who held property B worth Rs. 20,000, is bound to contribute Rs. 4,596 out of the aggregate sum of Rs. 7,456 paid by the plaintiff to satisfy the whole mortgaged debt, although he held property A worth only Rs. 12,540. The finding of the Sub-ordinate Judge on the question of the sum payable by the defendant must accordingly be varied by the substitution of Rs. 4,596 in place of Rs. 5,026, in the judgment. On this basis, the decree must be varied by the substitution of Rs. 6,530-4-0 in place of Rs. 7,037-14-0. The second ground must accordingly prevail to this extent. The result is that this appeal is allowed in part and the decree of the Sub-ordinate Judge varied by the substitution of Rs. 6,530-4-0 in place of Rs. 7,037-14. Subject to this variation, the decree will stand confirmed. The defendant-appellant must may the plaintiff-respondent his costs in this Court.
V.B/R.K
9. Appeal partly allowed.