Sir John Edge, C.J:— These two Second Appeals arise out of the same suit, and are brought by Seth Chitor Mal, a defendant in the suit. The respondent in each appeal is Shib Lal, who was the plaintiff in the suit. The suit was brought in the Court of the Haveli Munsif of Aligarh. From the decree of the Munsif there were two appeals to the Court below, and in each appeal a decree was passed. Seth Chitor Mal was dissatisfied with each of the decrees of the Subordinate Judge, and accordingly has brought these appeals.
The facts necessary for understanding the questions which arise in these appeals are shortly as follows:—
At the time of the making of the mortgages, to which I shall presently refer, Mukha, Lekha, Fatteb, Bhagwan, and Radha were co-sharers in a mahal in which they owned plots numbered in the khewat 49 and 50 as their share.
Plot numbered 49 contained 54 bigbas, 8 biswas, and plot numbered 50 contained 29 bigbas, 5 biswas.
On the 24th of June 1873 Mukbal Lekha, Fatten, and Bhagwan executed a simple mortgage, as a simple mortgage is defined in section 58 of the Transfer of Property Act, 1882, in favour of the Seth Chitor Mal, by which they purported to mortgage 44 bighas, 10½ biswas of the 54 bighas, 8 biswas. On the 1st of July 1873, Mukha, Lekha, and Fatteh executed a simple mortgage in favour of Seth Chitor Mal, by which they purported to mortgage 28 bighas, 3 biswas in the mahal.
On the 28th of March 1884 Seth Chitor Mal, in a suit in which he was the plaintiff, and Sri Earn, adopted son of Lekha, [276] deceased, Mukha and Fatteh were defendants, obtained, apparently under section 88 of the Transfer of Property Act, 1882, a decree on his simple mortgage of the 1st of July 1873 for sale of 28 bighas, 3 biswas of land. On the 31st of March 1884 Seth Chitor Mal, in a suit in which he was the plaintiff, and Sri Ram, adopted son of Lakha, deceased, Mukha, Tewan and Kanhaiya, minor sons, and Musammat Hira, widow of Bhagwan, deceased, and Fatteh were defendants, obtained, apparently under section 88 of the Transfer of Property Act, 1882, a decree on his simple mortgage of the 24th of June 1873 for sale of 44 bighas, 14 biswas of land. What were the proceedings which took place under those decrees between the dates of those decrees and the dates of the auction sales held in execution of them do not appear on the record of this suit, except that 54 bighas, 8 biswas and 14 bighas, 12½ biswas were advertised for sale under those decrees.
On the 23rd of February 1887, at an auction sale under those decrees Seth Chitor Mal purchased 14 bighas, 12½ biswas of land out of 29 bighas, 5 biswas. The sale certificate is dated the 25th of April 1887, and that sale was duly confirmed. On the 21st of October 1887, at a further auction sale under those decrees, Seth Chitor Mal purchased 54 bighas and 8 biswas of land. The sale certificate is dated the 24th of December 1887, and that sale was duly confirmed.
Shib Lal, the plaintiff, respondent here, who was a lambardar and a co-sharer in the mahal in which the lands in question were, having paid certain arrears of land revenue for the years 1289, 1290, and part of 1291 Fasli, corresponding roughly with the years 1882, 1883, and part of 1884 of the Christian era, brought a suit in a Court of Revenue, under clause (g) of section 93 of Act No. XII of 1881, against Mukha, Sri Run, Musammat Hira, widow, and Jiwan and Bhodar (sic) sons of Bhagwan, deceased, Fatten and Radha to recover Rs. 402-5-1, principal and interest, and Rs. 23-12 costs, and obtained on the 7th of April 1885 a decree for Rs. 426-1-1. The Rs. 402-5-1 included the arrears of land revenue paid by Shib Lal. [277] Seth Chitor Mal was not a defendant to that suit. Shih Lal endeavored to execute that decree under section 177 of Act No. XII of 1881 by sale of the 54 bighas, 8 biswas and the 14 bighas, 12½ biswas which had been purchased, as already mentioned, by Seth Chitor Mal. Seth Chitor Mal before the day fixed for the sale, appeared under section 178 of Act No. XII of 1881, claimed a right and interest under his mortgage decrees and sale certificates in those lands, and objected to their being sold in execution of Shib Lal's Court of Revenue decree. On that claim the Collector of the district finally made an order under sections 179 and 180 against Setii Chitor Mal. Thereupon, and within one year from the date of that order, Seth Chitor Mal brought his suit as authorised by section 181 of Act No. XII of 1881 in a Civil Court of competent jurisdiction against Shib Lal, Sri Ram, adopted son of Lekha, deceased, Mukha, and Jewan Lal and Kanhaiya, sons, and Musammat Hira, widow, of Bhagwan, deceased, to establish his right to the 54 biswas, 8 biswas and the 14 bighas, 12½ biswas and to have them protected from sale in execution of Shib Lal's Court of Revenue decree, and on the 4th of September 1888 obtained the decree which he asked for in his suit, namely, a decree establishing his title to the 54 bighas, 8 biswas and the 14 bighas, 12½ biswas, and protecting them from sale in execution of Shib Lal's Court of Revenue decree. That decree was appealable, but no appeal was brought against it, and whether it was justified by the facts or in law is now immaterial, as the decree long since became final as between Seth Chitor Mal and Shib Lal.
On the 18th of January 1889, and after Seth Chitor Mal's decree of the 4th of September 1888 had become, by reason of the Indian Limitation Act, 1877, non-appealable, Shib Lal brought the suit out of which these two appeals have arisen. The object of this suit is to get behind Seth Chitor Mal's decree of the 4th of September 1888, and to get from a Civil Court a decree for sale of the 54 bigbas, 8 biswas and the 14 bighas, 12½ biswas which would confer on a purchaser at an auction-sale held in execution of it, priority of title over such title and interest as Seth Chitor Mal has in the lands.
[278] The reliefs which Shib Lal claims in this suit are, as translated, as follows:—
“(a) A decree be passed in plaintiff's favour for enforcement of the hypothecation lien on account of Rs. 426-1-1 paid as Government revenue and recorded in the decree, together with costs and future interest, and for the auction sale of the zamindari property, in extent 54 bighas, assessed at Rs. 128-4-6 and 14 bighas, 10 biswas, for which revenue has been paid, and plaintiff's hypothecation lien, which is on account of Government, be declared superior and preferential to the hypothecation lien in favour of defendant, the second party, and the aforesaid property be sold by auction without any regard to other demands, liabilities or liens.
“(b) The costs of this suit, together with future interest, be caused to be paid.
“(c) Any other reliefs or directions which the Court may consider necessary be likewise given to the plaintiff,”
The defendant described in that prayer for relief as the “defendant second party” is Seth Chitor Mal and the decree in which it is stated that the Rs. 426-1-1 was recorded is Shib Lal's Court of Revenue decree of the 7th of April 1885.
It may be noticed that Shib Lal in relief (a) is claiming a lien or charge more extensive than that which the Government had for the arrears of land revenue, for he claims a lien not only in respect of the arrears of land revenue which were actually paid, but also in respect of future interest, whereas section 148 of Act No. XIX of 1873 enacts that “no interest shall be demanded on any arrear of land revenue.” He is also seeking to have the charge, which he claims to be entitled to, enforced by the Civil Court, which is not the tribunal by the aid of which the Government can enforce the charge which it has for arrears of land revenue.
Having regard to the relief which Shib Lal claims, it is necessary not only to consider whether by the payment of the arrears of land revenue Shib Lal obtained the charge which the Government had, which was a charge enforceable by sale and having a priority over all [279] mortgages and incumbrance upon the land, but whether Shib Lal has by such payment obtained any other charge in enforcement of which be is entitled to bring the lands to sale by the aid of the Civil Court in this suit. It will also be necessary to consider whether a Civil Court had any jurisdiction to entertain this suit.
In considering the questions arising in this case it is necessary to bear in mind that when the air rears of the land-revenue, in respect of the payment of which Shib Lal claims a charge upon the lands in suit were accruing, accrued, and were paid, Shib Lal had no interest of any kind in these lands, and that his interest was in other lands in the mahal which might in certain events have been sold as part of the Mahal by the Collector of the District in satisfaction of the arrears of the land-revenue, for which the entire mahal and the proprietors, as that word is used in section 146 of Act No. XIX of 1873 (the North-Western Provinces Land-Revenue Act, 1873), as amended by Act No. VIII of 1879, were jointly and severally responsible to the Government. Even if it were a true proposition that there is a general principle of equity that whoever, having an interest in an estate, makes a payment in order to save the estate, thereby obtains a charge upon the estate, and if Shib Lal could be said to have had, when he paid the arrears of land-revenue, an interest in the lands in suit, in which in fact he had no interest whatsoever, it would be necessary to consider whether the Legislature intended that a co-sharer or a lambardar in a mahal who paid an arrear of the land-revenue should, in respect and by force of such payment, obtain a charge upon lands in the mahal the exclusive property of another co-sharer, and provided any means by which any such charge could be enforced.
It must not be assumed that the proprietors or co-sharers in this mahal were co-sharers in each other's share. In truth the proposition which Shib Lal contends for is, that there exists a principle of equity applicable to land by which, apart from express contract or legislative enactment, one of several debtors jointly and severally liable as principals, and not as co-sureties, for a debt charged on their separate lands who pays that debt in order to prevent his own [280] particular lands, together with the separate lands of his co-debtors being sold, obtains thereby, not merely a right of contribution enforceable in the ordinary way by means of a decree for money, but a charge over such separate lands of his co-debtors on which he can obtain a decree for sale of those separate lands of his co-debtors and a decree for sale which would confer on a purchaser at a sale in execution of it, priority of title over all previous mortgages and incumbrance. That is a startling proposition when one comes to consider it carefully. It is all the more startling as applied to this case from the fact that the means by which Shib Lal could alone, if at all, enforce the charge which he claims were not open to the Government for the enforcement of the charge which it had, and that the means by which the Government could have enforced its charge are inapplicable to the enforcement of a charge by Shib Lal.
In endeavoring to arrive at a conclusion as to whether Shib Lal did by his payment of the arrear of land revenue obtain any such charge as that which he claims, I propose to consider the Acts of the Indian Legislature in order to see what light they throw upon this question, and in doing so to see whether if Shib Lal has any such charge the Legislature provided any means by which he could enforce it. If it appears that the Legislature has not only not recognized the existence of any such principle as that contended for, as apart from legislative creation, but has provided no means by which such a charge as that claimed by Shib Lal could in these Provinces be enforced, and has in other Provinces created by legislative enactment rights of charge on behalf of certain classes of persons paying under certain circumstances arrears of Government revenue, I think it may be safely concluded that the Legislature did not intend, except in those cases for which it has expressly provided by enactment, that a lambardar, co-sharer or other person having an interest in a mahal or in any part of it, should, by payment of an arrear of land revenue acquire any charge, much less a charge taking priority over all mortgages and incumbrance on the land, and it may further be concluded that no such right of charge exists in these Provinces.
[281] Before examining the legislative enactments which may throw any light upon this case, I shall again briefly state what Shib Lal is contending for. It is contended on behalf of Shib Lal that by reason of his payment of the arrear of land-revenue which became due for the years 1289, 1290 and part of 1291 Fasli, he acquired either a charge on the lands in suit or a right to have a charge declared and enforced by sale of the lands in suit, and that such charge or right of charge took priority over the mortgages of 1873, the decrees upon those mortgages in 1884, and the sales under those decrees in 1887.
If such a charge or right of charge exists, it must arise in this case, either by legislative enactment or by virtue of some principle of equity, not inconsistent with the statute law in force in these Provinces.
So far as Act No. XIX of 1873 (the North-Western Provinces Land-Revenue Act, 1873) as amended by Act No. VIII of 1879, is concerned, the only sections which appear to have any bearing on this subject are the sections contained in chapter V of that Act.
The inferences to be drawn from those sections are in my opinion adverse to the contention of Shib Lal. I think it necessary to refer to a few only of the sections contained in chapter V.
Section 146 enacts that “in the case of every mahal the entire mahal and all the proprietors jointly and severally shall be responsible to Government for the revenue for the time being assessed on the mahal. Explanation.—Proprietor in this chapter includes also a farmer and a mortgagee in possession.” Seth Chitor Mal at the time the arrears of land revenue were paid by Shib Lal was not a proprietor in the mahal within the meaning of section 146, nor was he then a person responsible to Government for the revenue for the time being assessed on the mahal. Section 148 enacts any sum not so paid becomes thereupon an arrear of revenue, and the persons responsible for it become defaulters. No interest shall be demanded on any arrear of land-revenue. If the settlement has been made with a lambardar on behalf of the proprietary body both the lambardar and the persons so responsible shall be deemed defaulters.” [282] By section 150 certain processes are provided by which an arrear of land revenue, may be recovered by the Collector of the district on behalf of the Government. Amongst other processes provided by that section, there are the following: “(e) by transfer of such share or patti to a solvent co-sharer in the mahal;” “(g) by sale of such patti, or of the whole mahal” and “(h) by sale of other immoveable property of the defaulter.” Section 157, so far as is material, enacts “when the arrear is due in respect of a share or patti of a mahal, the Collector of the district may, with the previous sanction of the Commissioner of the Division, in cases where the annual revenue payable in respect of such share or patti does not exceed fifty rupees, and in other cases with the previous sanction of the Board, transfer such share or patti for a term not exceeding 15 years from the first day of July next after the date of the sanction, to any or all of the other co-sharers, on condition of their paying such arrear and on such terms as the Commissioner or Board (as the case may be) in each case may think fit……A transfer under this section shall not affect the joint and several liability of the co-sharers of the mahal in which it is enforced.”
Section 166 enacts so far as is material “when an arrear of land revenue has become due, and the Collector of the district is of opinion that the other processes hereinbefore provided are not sufficient for the recovery of such arrear, he may, in addition to, or instead of, all or any of such other processes and subject to the provision hereinafter contained, and with the previous sanction of the Board, sell by auction the patti or mahal in respect of which such arrear is due.” The proviso to 166 does not affect the question we have to consider. Section 167 enacts “land sold under the last preceding section shall be sold free of all incumbrances, and all grants and contracts previously made by any person other than the purchaser in respect of such land shall become void as against the purchaser at the auction sale. Nothing in the former part of this section applies (a) in districts or portions of districts permanently settled, to farms granted in good faith at fair rents, and for specified areas, by a former proprietor for terms not exceeding 20 years, [283] under written leases duly registered; (b) in all districts, to lands held under bona fide leases at fair rents, temporary or perpetual, for the erection of dwelling-houses, or manufactories, or for mines, gardens, tanks, canals, places of worship, burying-grounds, such lands continuing to be used for the purposes specified in such leases.’
Section 168 enacts that in the events therein mentioned a defaulter's interests in any other mahal, may be sold, “provided that no other interests save those of the defaulter alone shall be so proceeded against, and no incumbrance created or contracts entered into by him in good faith shall be rendered invalid by such proceedings.” Section 173 enacts “if the defaulter pay the arrear in respect of which the land is to be sold at any time before the day fixed for the sale, to the person appointed under section 147 to receive payment of the land-revenue assessed on such land, or to the Collector of the district, or the Assistant Collector in charge of the subdivision of the district in which the land is situate the sale shall be stayed.”
It is to be observed that not only is the patti or mahal in respect of which arrears of land-revenue remain unpaid liable to be sold for the recovery of such arrears, but that every person who is, under section 146 or section 148, responsible to Government for the land-revenue so in arrear, is a defaulter, and may be proceeded against as such, although he may have paid to the Government what represented as between him and his co-sharers in the patti or mahal his quota or share of the land-revenue, the liability for the payment of the land-revenue being joint and several, and those being the terms upon which the co-sharers hold the patti or the mahal.
There are, besides the processes for the recovery by the Government of arrears of land-revenue provided by the sections from which I have quoted, other processes provided by chapter V by which the Government may recover arrears of land-revenue.
Chapter V of Act No. XIX of 1873, which enacts what are the liabilities of proprietors and co-sharers and how the land-[284]revenue may be collected and arrears of land revenue may be recovered, does not enact that a co-sharer or lambardar who pays the particular quota of land-revenue of his co-defaulter shall have any lien on his co-defaulter's share in respect of such payment, except in the case and in the manner specified in section 157, the manner specified being a transfer of the co-defaulter's share for a period not exceeding 15 years by the Collector with the sanction of the Commissioner or the Board of Revenue, as the case may be, to any or all the other co-sharers on condition, amongst possibly others, of their paying the arrear. The Legislature, if it had seen fit, might have enacted in Act No. XIX of 1873 that a lambardar or a co-sharer, on payment of an arrear of land revenue, should have a charge on the share of the co-sharer who was the primary defaulter, but it has not done so. If the Legislature intended that a lambardar or a co-sharer who, in order to prevent the patti or mahal being sold under section 166, paid the arrear of land revenue, should have a charge in respect of such payment the appropriate place to have inserted words which would have given effect to such an intention would have been in section 173; but neither in that section, nor elsewhere in Act No. XIX of 1873, is any such intention expressed, or any words used from which such an intention could be inferred.
I have been unable to find anything in the Indian Contract Act, 1872, (Act No. IX of 1872) from which I can infer that a lambardar or co-sharer is entitled to a charge in respect of arrears of land revenue paid by him.
Section 100 of the Transfer of Property Act, 1882 (Act No. IV of 1882), would not apply, unless the property, the subject of this suit, was “by act of parties or operation of law made security for the payment” to the plaintiff of the money paid by him in respect of the arrears. No such “act of parties” is alleged; and so far as I can see, the property was not by operation of law made security for any payment to the plaintiff. If however, section 100 of the Transfer of Property Act, 1882, does apply and plaintiff has, within the meaning of that section a charge on the property in [285] suit, it is not the charge which he contends for, that is a charge which would give him priority not only over the decrees on the prior mortgagors and the certificates of sale, but over those prior mortgages which were made many years before the arrears of land revenue which were paid by Shib Lal accrued due, but a charge by which he would stand qua his charge in no higher position than that in which a second mortgagee stands to a first mortgagee. The rights of a second mortgagee as such against the first mortgagee are, so far as redemption, foreclosure and sale are concerned, defined by section 75 of the Transfer of Property Act, 1882, and are the same rights as the mortgagor has against the first mortgagee, and no more. A mortgagor could not as against his mortgagee obtain, except by legislative enactment or as the result of a contract, a prior charge on, or a right to sell with priority of title, the mortgaged property in respect of a discharge by a payment made by the mortgagor of a liability on the property which first arose after the making of the mortgage. The principle of the shield, even if the shield could be used as a weapon of offence, could not apply in such a case.
The result so far is that I find nothing in Act No. XIX of 1873, the Indian Contract Act, 1872, or the Transfer of Property Act, 1882, which suggests that any such charge as is contended for here, has been given by the Legislature in any of those enactments.
I now propose to show that the Legislature not only before but since the passing of Act No. XIX of 1873, must have considered that, except by legislative enactment, no person interested for the protection of his own interests as a tenant, a co-sharer or an incumbrancer in having Government revenue paid, would by the mere payment of an arrear of the Government revenue obtain any charge whatever upon lands liable to be sold by the Government in satisfaction of the arrear. And further I propose to show, so far at least as these Provinces are concerned, that any such charge as is Contended for by Shib Lal would be at variance with the policy of the Government as disclosed in its legislative enactments, and that in these Provinces no means has been provided by which a lambardar or co-sharer could enforce any such charge if he had it.
[286] Act No. I of 1845 was an Act for the realization of land revenue. By sections 26, 27, 28, and 29 of that Act the purchasers at a sale by the Government for arrears of land revenue of the estates therein referred to, acquired those estates with certain exceptions free from all incumbrances. By section 29 it was enacted “and it is hereby enacted that excepting Co-partners of Estates under Butwarrah who may have saved their shares from sale under sections 33 and 34, Regulation XIX, 1814, any recorded or unrecorded Proprietor or Co-partner, who may-purchase in his own name or in the name of another the Estate of which he is Proprietor or Co-partner, or who by re-purchase or otherwise may recover possession of the said Estate after it has been sold for arrears under this Act: and likewise any purchaser of an Estate sold for other arrears or demands than those accruing upon itself, shall by such purchase, acquire the Estate subject to all its incumbrances existing at the time of sale, and shall not acquire any rights in respect to ryots and under tenants which were not possessed by the previous Proprietor at the time of the sale of the said Estate Section 9 of Act No. I of 1845 was as follows:— “And it is hereby enacted, that Collectors shall, at any time before sunset of the latest day of payment, receive as a deposit from any part not being a Proprietor of the Estate in arrear, the amount of the arrear of revenue due from it, to be carried to the credit of the said Estate at sunset as aforesaid, unless before that time the arrear shall have been liquidated by a Proprietor of the Estate. And in case the party so depositing, whose money shall have been credited to the estate in the manner aforesaid, shall be a plaintiff in a suit pending before a Court of Justice for the possession of the same or any part hereof it shall be competent to the Judge of the Zilla in which such Estate is situated, to order the said party to be put into temporary possession of the said Estate, subject to the rules in force for taking security in the cases of appellants and defendants. And if the party depositing whose money shall have been credited as aforesaid shall prove before a competent Civil Court that the deposit was made in order to protect an interest of the said party, which would have been endangered or damaged by the sale of the estate, he shall [287] be entitled to recover the amount of the deposit with interest, from the Proprietors of the said Estate.”
Act No. XI of 1859 is “an Act to improve the law relating to sales of land for arrears of revenue in the Lower Provinces under the Bengal Presidency.” Section 9 of Act No. XI of 1859 is almost in terms similar to those of section 9 of Act No. I of 1845, except that it contains an addition in the following words: “And if the party so depositing, whose money shall have been credited as aforesaid, shall prove before such a Court that the deposit was necessary, in order to protect any lien he had on the estate or share or part thereof, the amount so credited shall be added to the amount of the original lien.”
Act No. II Of 1864 (Madras) is “an Act to consolidate the laws for the recovery of arrears of revenue in the Madras Presidency.” By section 35 of that Act, when arrears of public revenue are paid by a tenant, he is entitled to deduct the amount paid from the rent then or afterwards due by him to the defaulter; and the arrears, “if paid by a bona fide mortgagee or other incumbrancer upon the estate, shall constitute a debt from the defaulter to him and shall be a charge upon the land, but shall only take priority over other charges, according to the date at which the payment was made.”
I have not sufficient information as to the tenures in the Presidency of Bombay to enable me to refer with any certainty to the provisions of Act No. V of 1879 (Bombay); but it appears from section 136 of that Act that when land revenue for which the registered occupant or superior holder is primarily responsible to the Government is recovered from a co-occupant; co-sharer, inferior holder or person in actual possession of the land, such co-occupant, co-sharer, inferior holder or person in actual possession of the land does not obtain a charge, but is entitled to credit in account with the registered occupant or superior holder or with his landlord for the amount recovered from him.
I think it appears from Act No. I of 1845, Act No. XI of 1859, and Act No. XIX of 1873, Act No. II of 1864 (Madras) and, so far as I understand it, from Act No. V of 1879 (Bombay), that when [288] it was intended that there should be a charge or lien or any other protection in respect of a payment made in respect of arrears of land revenue the charge, lien or protection, as the case might be, was specifically given by legislative enactment.
The lien given in Lower Bengal by Section 9 of Act No. XI of 1859, and that given in Madras by section 35 of Act No. II of 1864 (Madras) fall far short of the charge contended for here, which is a charge with priority over all previous mortgages and incumbrances. Further, the lien given by Section 9 of Act No. XI of 1859 is only given when it is proved that the payment of the arrear was necessary in order to protect any already existing lien, and only entitles the party who obtains it to add the amount paid to the amount of his original lien. The charge given in Madras by section 35 of Act No. II of 1864 (Madras) is not given to any one except a bona fide mortgagee or incumbrancer upon the estate, and only takes priority over other charges according to the date at which the payment was made.
That any such charge as is contended for heres would be at variance with the policy of the Government, at any rate as applied to these Provinces, is, I think, apparent from a consideration of sections 150 to 166 inclusive of Act No. XIX of 1873, and of section 171 of Act No. XII of 1881. Sections 150 to 166, inclusive, of Act No. XIX of 1873 show that it is the policy and intention of the Government that when its processes for the recovery of arrears of land revenue are put in action it is only when all the other processes fail that a sale of the immoveable property of the defaulter shall be resorted to. Section 171 of Act No. XII of 1881 shows that it is the intention of the Government that a sale of immoveable property in execution of a decree of a Court of Revenue for the payment of arrears of rent or Revenue or of money under that Act shall not be resorted to unless satisfaction of the judgment cannot be obtained by execution against the person or moveable property of the debtor. Sections 322 to 324 inclusive of the Code of Civil Procedure afford further evidence of what the policy of the Government is. If the charge claimed in this case exists and can be [289] enforced, a lambardar or recorded co-sharer would on payment of an arrear of land-revenue on the day after it became due obtain a charge on immoveable property which he could proceed to enforce by obtaining a decree for sale of the immoveable property, and selling the immoveable property in execution of that decree, and would thus frustrate the obvious intention of the Government as disclosed in legislation that all other means shall be resorted to before an owner shall be deprived by sale of his holding unless he has by contract specifically mortgaged or charged the same with the payment of money and a decree thereon for sale has been passed.
I now intend to show that even if a lambardar or co-sharer does on payment of an arrear of land-revenue obtain by the application of any principle of equity a charge on the mahal or on any part of it, no means has been provided by which he can in these Provinces enforce such charge by a sale under a decree for sale of immoveable property, or obtain a declaration that he has such a charge or any right to any such charge.
The jurisdiction of Courts in these Provinces to entertain suits is conferred by legislative enactment or by Regulation. There is no Regulation which applies in this case. If there is a jurisdiction in any Court to entertain this suit, assuming that section 13 of the Code of Civil Procedure does not apply to it, the jurisdiction must he found in the Code of Civil Procedure or in Act No. XII of 1881 (the North-Western Provinces Rent Act, 1881). If any section of the Code of Civil Procedure gives a Civil Court jurisdiction to entertain this suit it is section 11. Section 11, so far as it is material, is as follows:—
The Courts shali (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature, excepting suits of which their cognizance is barred by any enactment for the time being in force.”
In order to ascertain if the cognizance by a Civil Court of this suit is barred by any enactment for the time being in force, we must turn to Act No. XII of 1881. The first paragraph of section [290] 93 of Act No. XII of 1881 is as follows:— “Except in the way of appeal, as hereinafter provided, no Courts other than Courts of Revenue shall take cognizance of any dispute or matter in which any suit of the nature mentioned in this section might be brought and such suit shall be heard and determined in the said Courts of Revenue in the manner provided in this Act, and not otherwise.” That is as distinct a prohibition as the Legislature could by any possible use of words have enacted. Not only does section 93 enact that the Courts of Revenue are to be the Courts of first instance for all suits of the nature mentioned in the section, but it prohibits any Court except a Court of Revenue, or a Court of Appeal as such sitting in Appeal from a Court of Revenue, from taking cognizance of any dispute or matter in which any such suit might be brought. Ciause (g) of section 93 is as follows:— “Suits by lambardars for arrears of Government revenue, payable through them by the co-sharers whom they represent, and for village expenses and other dues for which the co-sharers may be responsible to the lambardars.” Clause (k) of section 93 is as follows:— “Suits by recorded co-sharers to recover from a recorded co-sharer who defaults arrears of revenue paid by them on his account. It follows that no Court other than a Court of Revenue can as a Court of first instance take cognizance of a suit of the nature of a suit by a lambardar for arrears of Government revenue payable through him by the co-sharers whom he represents, or of a suit of the nature of a suit by a recorded co-sharer to recover from a recorded co-sharer who defaults arrears of revenue paid by him on account of such defaulter, or of any dispute or matter in which a suit of the nature mentioned in clause (g) or in clause (k) might be brought.
It cannot be contended that the dispute in this suit is not a dispute as to the recovery by the plaintiff of moneys paid by him as lambardar for arrears of Government revenue which were payable through him by the co-sharers whom he represented. The fact that the plaintiff seeks in this suit a decree or declaration that he is entitled to recover such moneys in a particular way or by a particular process does not make the dispute any the less a dispute of the nature which I have [291] mentioned, or any less a dispute in which a suit of the nature mentioned in clause (g) might be brought, although in a suit under clause (g) the plaintiff could not obtain the decree or declaration which he seeks to obtain in this suit, even if Seth Chitor Mal had been a mortgagee in possession and a co-sharer at the time the arrears became due and were paid and could have been made a defendant to a suit under clause (g). Effect must be given to the words “dispute or matter” in section 93, as they were obviously inserted in that section with the object of limiting the jurisdiction of Civil Courts further than that jurisdiction would probably have been limited if the section had not contained those words, and had run as follows:—“Except in the way of appeal as hereinafter provided, no Courts other than Courts of Revenue shall take cognizance of any suit mentioned in this section and such suit shall be heard and determined in the said Courts of Revenue in the manner provided in this Act and not otherwise.” If section 93 were so worded, it might be possible to contend successfully that as a suit under clause (g) is a suit in which a Court of Revenue could not give a decree for; sale, or what is called sometimes an hypothecation decree, the jurisdiction of a Civil Court to entertain and determine this suit is not barred. I consequently come to the conclusion that section 93 of Act No. XII of 1881 bars the Civil Courts from taking cognizance of this suit and of any similar suit not authorized by section 181 of that Act to be brought in a Civil Court.
This suit, as I shall presently show, is not a suit to which section 181 of Act No. XII of 1881 applies. It consequently remains to be seen whether a Court of Revenue in these Provinces could make a decree for sale of immoveable property in a suit by a lambardar or a recorded co-sharer, or could make a declaration that a iambardar or a recorded co-sharer had a charge on immoveable property in respect of arrears of land-revenue paid by him.
It is obvious, from a consideration of Act No. XII of 1881, that a Court of Revenue cannot make a decree ordering the sale of immoveable property, or a decree declaring a charge upon immoveable property. The whole procedure for executing a decree of a Court of [292] Revenue negatives the existence of any such jurisdiction in a Court of Revenue. The sections of Act No. XII of 1881 immediately dealing with the execution against immoveable property of a decree of a Court of Revenue for the payment of arrears of revenue or money commence with section 171. The provisions of sections 173, 174, 174-A, 175, and 176 are entirely at variance with the notion of the decree in execution being one for sale of immoveable property Section 177 shows that where immoveable property is sold, it is sold not by force of a decree for sale, but under an order of the Board of Revenue in aid of a decree for money. If the Board of Revenue orders the property to be sold, section 177 enacts that “the sale shall be made under the rules in force for the sale of land for arrears of land-revenue, but without prejudice to the incumbrances (if any) to which such property may be subject.” No words could show more conclusively than those which I have just quoted that a decree under clause (g) or under clause (k) of section 93 could not declare a priority of charge, or any charge, or create a right of charge, or operate as a charge. Beyond all doubt, as it appears to me, those words show that the charge which the Government has for arrears of land revenue does not pass to the lambardar or co-sharer who pays the arrears Section 178 enables a third party to appear before the Collector of the District or Assistant Collector and claim a right or interest to or to any of the property about to be sold under section 177. Sections 179 and 180 deal with the adjudication of the Collector or. Assistant Collector on a claim, made under section 178. Section 181 enacts “(a) No appeal shall lie from any order passed under section 179 or section 180 by the Collector of the district;
“(b) But the party against whom the same is passed may institute a suit in the Civil Court to establish his right at any time within one year from the date of the order;
“(c) Provided that, if the order be for the sale of the property taken in execution, and the property is moveable, the suit shall not be for the recovery of such property, but shall be for compensation from the judgment-creditor by whom it was brought to sale.”
[293] No order under section 179 or section 180 of Act No. XII of 1881 was made against Shib Lal, and the result appears to me to be that no Court had jurisdiction to entertain this suit by him for a decree for sale of the immoveable property or for a declaration that he had or was entitled to a charge. Further, as any suit which Shib Lal could have brought for the recovery of arrears of land-revenue paid by him must necessarily, according to section 93 of Act No. XII of 1881 and section 11 of the Code of Civil Procedure, have been brought in a Court of Revenue and not in a Civil Court, and as a Court of Revenue has no jurisdiction to make a decree for sale of immoveable property, or a decree in execution of which immoveable property could be sold, to the prejudice of the incumbrance to which such property was subject, I fail to see how a Civil Court could in a suit authorized by section 181 of Act No. XII of 1881 or in any other suit for arrear of land-revenue make a declaration that a decree of a Court of Revenue operated as a decree for sale, or operated to create a charge, or could decree a sale of the immoveable property, to the prejudice of the incumbrance to which it was subject, or make any decree which could have that effect.
In a suit authorized by section 181 of Act No. XII of 1881 a Civil Court could decree that the immoveable property was or was not subject to the encumbrances or to the right or interest claimed by the objector who preferred his claim under section 178 of Act No. XII of 1881, and presumably could declare whether or not such right or interest was one which would disentitle the judgment-creditor from bringing the immoveable property to sale under section 177 of that Act.
It was contended that as questions of title to land are, as a rule, for a Civil Court and not for a Court of Revenue, this suit was maintainable in the Civil Court as it raised a question of title. That contention is based on an incorrect reading of Act No. XII of 1881 and on the assumption that in order to obtain the decision of a Civil Court on a question of proprietary title to land, it is necessary in all cases that a suit should be brought in the Civil Court.
[294] By section 189 of Act No. XII of 1881 an appeal lies to the Civil Court from the decision of a Collector or Assistant Collector of the 1st class in all suits mentioned in section 93, in which the proprietary title to land has been determined between parties making conflicting claims thereto. By section 183 of Act No. XII of 1881 an appeal lies to the Collector from all decisions of an Assistant Collector of the second class in suits mentioned in section 93. Under section 178, as we have seen, a third party may appear before the Collector or Assistant Collector and claim a right or interest to or in any of the property about to be sold in execution of a decree of a Court of Revenue, and under section 181 the party against whom an order of the Collector is passed under section 179 or section 180 may within one year from the date of the order institute his suit in a Civil Court to establish his right.
Seth Chitor Mal, the defendant-appellant here, whose claim was disallowed under section 179 of Act No. XII of 1881, brought in the Civil Court within 12 months of the order made against him his suit to establish his right, and obtained in that suit a decree which rightly or wrongly established his title against Shib Lal, the respondent here. That decree has become final, and I fail to see how it can be questioned in this suit, or how if this suit were otherwise maintainable any decree in this suit, which is between the same parties, could be passed which would detract from or interfere with the decree obtained by Seth Chitor Mal in his suit. Further, and apart altogether from any question arising under section 13 of the Code of Civil Procedure, there appear to me to be two grounds at least upon which this suit must fail. One of those grounds is that Shib Lal, the plaintiff-respondent here, having obtained in a Court of Revenue the only decree which that Court had jurisdiction to pass, seeks by this suit to have it executed by sale of immoveable property as if that immoveable property was not subject to the incumbrances of Seth Chitor Mal; in other words, Shib Lal is seeking a sale not authorized by section 177 of Act No. XII of 1881, which enacts that the sale under that section shall be made “without prejudice to the incumbrances (if any) to which such property may be subject.” The [295] other ground to which I allude is that no order having been passed against Shib Lal, under section 179 or section 180 of Act No. XII of 1881, by the Collector of the District, Shib Lal has no right of suit under section 181, and so far as I am aware is not given under any other section or Act the right of suit which he contends for here.
To sum up my views on this case, so far as legislation affects it or shows what was or was not the intention of the Legislature. In my opinion no Civil Court had jurisdiction to entertain this suit, and no Court of Revenue had jurisdiction to make a decree for sale of the immoveable property or a decree in execution of which the immoveable property could be sold to the prejudice of incumbrance to which it was subject. No such right of charge as is claimed here has been given or recognized in these Provinces by the Legislature, and any such charge would be at variance with the policy and intention of the Government as disclosed in its legislative enactments: and it was not the intention of the Legislature that a Civil Court should have jurisdiction to invest by declaration or otherwise a decree of a Court of Revenue with the attributes of a decree for sale such as could be passed by a Civil Court in a suit for sale under the Transfer of Property Act, 1882. Such on this subject is my opinion of the effect and object of, and of the inferences to be drawn from, legislation, so far as these Provinces are concerned.
Holding the opinion which I have above expressed as to the effect of the legislation so far as these Provinces are concerned, it is hardly necessary or me to consider the abstract question as to whether a lambardar or co-sharer who, on behalf of a person who is a proprietor within the meaning of section 146 of Act No. XIX of 1873, or on behalf of any other person, pays his arrear of land-revenue can, except by reason of a contract with such proprietor or person, obtain or be entitled to, by subrogation or otherwise, a charge on immoveable property for money paid by him in satisfaction of land-revenue for the payment of which such property was liable. It is clear to my mind that a lambardar could not except by express legislation obtain the charge which the [296] Government has for arrears of land-revenue, for no means has been provided by which he or an assignee of such charge could enforce it. The means by which the Government can under section 150 and the following sections of Act No. XIX of 1873, enforce its charge for arrears of land-revenue are entirely inapplicable in the case of a lambardar proceeding for the recovery of money paid by him in satisfaction of an arrear of land-revenue. So far as I am aware, the Government has no means of enforcing its charge for arrears of land-revenue as a charge upon the land other than those given to it by section 150 and the following sections of Act No. XIX of 1873.
A co-sharer to whom section 146 or section 148 of Act No. XIX of 1873 applies, who pays an arrear of land-revenue, his own share of the land-revenue, calculated as between himself and his co-sharers having been paid in due time, cannot in my opinion be treated as standing in the position of a surety to the Crown who has paid to the Crown the debt of his principal, for the land-revenue is payable out of the whole mahal and out of each and every part of it, and every co-sharer is severally in his capacity as a sharer or proprietor of a share or land in the mahal, and not in the capacity of a surety for his co-sharer, liable for the whole of the land-revenue assessed upon the mahal and for every part of it. It may be doubted whether section 69 or section 70 of the Indian Contract Act, 1872, applies to such a case, and it may be noticed that the illustration to section 69 is an example of a payment made by a person who, so far as appears from the illustration in that section, was not bound to make it. However that may he, a right, but not such a right of suit as is contended for in this case, is impliedly, if not expressly, given to a lambardar by clause (g) of section 93 of Act No. XII of 1881, against any person who was responsible for the payment of the arrear of land-revenue through the lambardar, and to a recorded co-sharer by clause (k) of that section against a recorded co-sharer who defaults for arrears of land-revenue paid on his account by the recorded co-sharer.
[297] It appears to me that a co-sharer or a lambardar who pays an arrear of land revenue to prevent the arrest and detention under section 152 of Act No. XIX of 1873, of a defaulter, or to prevent a sale under section 153 of a defaulter's moveable property, or to prevent an attachment under section 154 of a defaulter's share in which the paying co-sharer was not a co-sharer, could not, on any principle of equity or, except by express contract, obtain a charge in respect of his payment, as his interest could not be affected by any process which affected only his co-sharer's liberty or property, and consequently that the broad proposition that a lambardar or other co-sharer in these Provinces who pays an arrear of land-revenue primarily due by another co-sharer obtains a charge in respect of such payment by reason alone of such payment cannot be maintained in its integrity upon any considerations depending on Act No. XIX of 1873.
I fail to understand upon what principle of justice, equity or good conscience a lambardar or a co-sharer who, being liable as a debtor to Government, pays an arrear of land-revenue should be in a better position than would be a second mortgagee of the whole mahal who being in possession paid such an arrear out of his own pocket, the income of the mahal being insufficient for the purpose. Such a mortgagee, would by such a payment obtain no priority over the first mortgagee, and would only be entitled under section 72 of the Transfer of Property Act, 1882, in the absence of a contract to the contrary, to add the money so paid to the principal money of his mortgage, at the rate of interest payable on the principal, and where no such rate was fixed at the rate of 9 per cent, per annum.
A Full Bench of the Calcutta High Court in Kinu Ram Das v. Mozaffer Hosain Shaha consisting of Mitter, Prinsep, Wilson, Tottenham, and Norris, JJ., held (Mitter and Norris, JJ., dissenting) that there is no general principle of equity to the effect that whoever, having an interest in an estate, makes a payment in order to save the [298] estate obtains a charge on the estate, and, therefore, in the absence of a statutory enactment, a co-sharer who paid the whole revenue and these saved the estate does not, by reason of such payment, acquire a charge on the share of his defaulting co-sharer. Although I have held and expressed a contrary view as regards the rights of lambardars and co-sharers in these provinces, I am now, after mature consideration, of opinion that my view was unsound, and that the view expressed by the majority of the Calcutta High Court is correct on general principles, and that there is no such general principle of equity. I agree with the observations in that case (I.L.R, 14 Calc at pages 827 and 828) of Wilson, J., on the dictum of their Lordships of the Privy Council in Nugender Chunder Ghose v. Kaminee Dossee.
Further, I may point out that there is no evidence on the record to show that any sale for arrears of land-revenue was imminent or threatened, or that any proclamation of sale had been issued under section 169 of Act No. XIX of 1873, or even that any sale of any immoveable property was ever contemplated by the Collector, and that Shib Lal was not as lambardar or co-sharer interested in the land or share in suit, and that if the mahal had been in danger, imminent or otherwise, of being sold under section 166 of Act No. XIX of 1873, he paid the arrear of land-revenue, not to save the land and shares in suit from being sold, but to save his own share as a co-sharer in the mahal from being sold as the share of a defaulter and part of the mahal.
The doctrine, which apparently had its origin in the Courts in Ireland, that a charge upon land may arise on the principle of Maritime Civil Salvage has, I think, been satisfactorily exploded as a principle of equity by the decisions of the English Courts in the cases of Leslie v. French and Falcke v. Scottish Imperial Insurance Co..
In my opinion no analogy can exist between the case of a salver in Maritime Civil Salvage, and the case of a co-sharer in a mahal to whom section 146 or section 148 of Act No. XIX of 1873 [299] applies, for the first principle of Maritime Civil Salvage is that no one can be a salver entitled to salvage whose legal duty it was to do the act by which the ship or cargo was saved. A salver is defined by Lord Stowell to be a person who, without any particular relation to the ship in distress, proffers useful service, and gives it as a volunteer adventurer, without any pre-existing covenant that connected him with the duty of employing himself for the preservation of the vessel (per Lord Stowell, The Neptune, Clark, 1 Hagg. Ad. 227, 236; Maclachlan's Merchant Shipping, 2nd ed., p. 570). Using the word “duty” in a sense other than that of a legal duty, for the breach of which a Court could award damages, Lord Stowell in The Waterloo, Bird, 2 Dods. Ad. 433, 437, said: “It is the duty of all ships to give succor to others in distress, none but a freebooter would withhold it: but that does not discharge from liability to payment where assistance is substantially given.” Although on principles of public policy salvage is allowed in maritime cases, I have never heard it suggested chat a man who as a volunteer stops a horse running away with a care, in which are goods of his and also goods of others liable to be damaged or destroyed, is entitled to a salvage lien; and yet according to the argument on behalf of Shib Lal such a volunteer would be entitled to a salvage lien on the horse, the cart and its contents.
Justice, equity, and good conscience are captivating terms; but before a Judge applies what may appear to him at first sight to be in accordance with justice, equity and good conscience, he must be careful to see that his views are based on sound general principles, and are not in conflict with the intentions of the Legislature or with sound principles recognised by authority. In my opinion justice, equity, and good conscience do not require us in India to go so far afield as the Irish Courts, in order there to seek for, and thence to import into India, novel principles of equity, based on unsound analogy, and rejected as unsound by Judges of such authority as Bowen and Fry, L.JJ, and not followed by such an authority as the late Lord Justice Cotton in Falcke v. Scottish Imperial Insurance Co., and which further are at variance with the Transfer of [300] Property Act, 1832, of the Indian Legislature, and with the policy of the Government as disclosed in its Legislative enactments.
In addition to the authorities to which I have referred, many other authorities were referred to in the course of the arguments; but as they do not show that the opinions expressed in them were arrived at after any critical examination of the legislative enactments bearing on the questions, and appear as a rule to have boon based on a supposition that the novel principle, which I have mentioned, was a sound principle of equity, I have not thought it necessary to refer to them in my judgment.
On every view of this case I would allow these two appeals with costs, and dismiss the suit with costs in all Courts.
Tyrrell, J.:— I fully concur in the judgment and decree of the Chief Justice.
Knox, J.:— I fully concur with the Chief Justice in the judgment and order proposed.
Blair, J.:— I agree with the judgment and order proposed by the Chief Justice.
Mahmood, J.:— I have had the advantage of perusing the judgment which the learned Chief Justice has prepared in this case, and the facts of the case are so lucidly stated therein that I have struck out of this judgment what I had written on that part of the cases; and, indeed, I should have omitted the rest of this judgment also, had it not been that I find myself unfortunately unable to agree in the conclusions at which he has arrived on the questions of law which arise in this case.
This being so, it is necessary to appreciate exactly the points upon which most stress was laid in the argument before the Full Bench.
Now I understand that the argument of the parties raises the following questions for determination:—
Whether, with reference to the decree obtained by the plaintiff from the Revenue Court on the 7th of April 1885, the present suit is barred by s. 43 of the Code of Civil Procedure?
[301] (2) Whether the decree obtained by the defendant Chitor Mal against the plaintiff from the Civil Court on the 4th of September 1888, bars the present suit under s. 13 of the Code of Civil Procedure?
(3) Whether the payment of Government revenue by the plaintiff, lambardar, on behalf of his defaulting co-sharers, such as those whose rights the defendant Chhitar Mal has purchased, gives the plaintiff a charge by way of salvage or otherwise on the defaulting shares so as to enable him to enforce it against the purchaser in execution of hypothecation decrees enforcing prior mortgages such as the defendant Chhitar Mal in this case?
Upon the first of these points I agree with the lower appellate Court in the view that the principle of the ruling of Stuart, C.J, and Straight, J., in Banda Hasan v. Abadi Begam justifies the conclusion that the present suit was not barred by s. 43 of the Code of Civil Procedure. The plaintiff's suit in the Revenue Court, which ended in the decree of the 7th of April 1885, was a suit of the nature contemplated by clause (g) of s. 93 of the Rent Act (XII of 1881), and it could not have included any such relief as is prayed for in this suit. In the first place, the Revenue Courts have no jurisdiction to enforce any such charges as the plaintiff claims in this suit, and in the second place, suits of that nature do not contemplate intervention of third parties—that is to say, persons in the position of the present defendant-appellant, Chhitar Mal, who at the time was only a simple mortgagee without possession and was not a co-sharer, as his purchase was not made till 1887. I may here observe in passing that the joint liability of the co-sharers of a mahal for payment of Government revenue arises from the provisions of S. 146 of the Land Revenue Act (XIX of 1873), which originally did not impose any such liability upon any class of mortgagees, and even in the amendment of that section by s. 12 of Act VII of 1879 the Legislature has limited the extension of such liability, by the explanation, to farmers and mortgagees in possession. It is, therefore, clear that to the revenue suit, which ended in the [302] decree of 7th of April 1885, the present defendant-appellant, Chhitar Mal, could not have been made a party-defendant, and it follows that the relief of enforcing a charge against him such as that claimed in this suit could not have formed part of the relief prayed for in that suit. The rule contained in s. 43 of the Code of Civil Procedure has therefore no application to the present case. And if it were necessary to pursue the subject further, I would explain in detail the principle of the Full Bench ruling of the Calcutta High Court in Syed Emam Momtaz-ood-deen Mahomed v. Rajcoomar Dass, which was apparently misunderstood in Doss Money Dossee v. Jonmenjoy Mullick, but again explained in a later Full Bench ruling by Gartb, C.J, in Jonmenjoy Mullick v. Doss Money Dossee(4). These cases related to the effect of a summary decree obtained under the special provisions of s. 53 of the Registration Act (XX of 1866), which allowed by its procedure only simple money decrees upon registered mortgage bonds, and it was held that such a summary decree would not debar the mortgagee from seeking his further remedy by enforcing his lien where the mortgaged property had passed into the hands of third parties, against whom such lien was sought to be enforced. These rulings, indeed, go beyond the exigencies of this case, for there the mortgagee's remedy by the summary procedure of s. 53 of the Regulation Act (XX of 1866) was optional, and in the present case, by reason of the body of s. 93 of the Rent Act (XII of 1881), read with clause (g) of that section, the plaintiff, in his suit which ended in the decree of the 7th of April 1885, had no choice but to go to the Revenue Court with a plaint by which he could not implead the defendant-appellant, Chhitar Mal, and by which he could not seek to enforce the charge now claimed against the defendant. The procedure of the Revenue Courts under the Rent Act (XII of 1881), in suits of the character described in s. 93 of that enactment is of a summary character, excluding consideration of the claims of third parties, and the jurisdiction thus conferred upon them is necessarily of a circumscribed character. But because the jurisdiction of such Courts is eircum-[303] scribed, it does not follow that the jurisdiction of the Civil Courts under s. 11 of the Code of Civil Procedure is totally ousted. It is of course ousted to the extent of the express provisions of the enactment, but I hold that a suit like the present, where the relief prayed for could not have been entertained by the Revenue Court, there can be no ouster of jurisdiction, and since the case is thus entertainable for adjudication upon reliefs which could not have formed part of the revenue suit which ended in the decree of 7th of April 1885, there can be no plea based upon s. 43 of the Code of Civil Procedure which would bar this action.
Upon the second point also I agree with the Courts below in holding that the suit is not barred by the rule of res judicata as enunciated in s. 13 of the Code of Civil Procedure. The plea was based upon the Civil Court's decree obtained by the defendant. Chhitar Mal, against the plaintiff on the 4th of September 1888, but that decree has not beau produced in evidence in this suit, nor has the defendant filed copies of the pleadings of the parties in that suit. He base however, produced an attested copy of the judgment which ended in that decree, and it shows that the main point for consideration before the Court in that case was whether the present plaintiff's Revenue Court's decree of the 7th of April 1885, could be so executed by proceeding in the Revenue Court as to subject the rights purchased by the present defendant, Chhitar Mal, to sale. The Court answered the question in the negative, following the ruling of Oldfield and Tyrrell, JJ. in Lachman Singh v. Salig Ram and I wish to quote a passage from that judgment, as it not only deals with the point now under consideration, but will be introductory to what I am going to say upon the third and most important point in this case. Oldfield, J., said:—
“No doubt by paying arrears of revenue, which he was bound to do, the defendant would obtain a charge on the estate against all persons interested therein for the sum paid, and this has been laid down by their Lordships of the Privy Council in Nugender Chunder Ghose v. Sraemutly Kaminee Dossee, but that case is also an [304] authority for the view I take in this case, that a charge of this nature cannot be enforced Under a decree which is merely a personal decree against the judgment-debtors, against whom it was passed by a Revenue Court not competent to do more than pass a personal decree. If the defendant wished to establish a charge against the property in the hands of the plaintiffs, he should have established the same by suit against them in a Court of competent jurisdiction.”
What is sought to be enforced in this suit is the very remedy of enforcement of lien which the Revenue Court could not have granted; for, as I have already explained, it was a matter entertainable only by the Civil Court. The suit therefore is not open to the objection of any pleas in limine such as want of jurisdiction, or such pleas as may be founded upon the provisions of ss. 13 and 43 of the Code of Civil Procedure.
I proceed now to consider the third question in the case, as already enunciated by me in a somewhat concrete form with reference to the circumstances of this particular case; but that question is the same as that which in a more concise and abstract form was referred to a Full Bench of the Calcutta High Court by Wilson and O'Kinealy, JJ., in Kinu Ram Dai v. Mozaffer Hosain Shaha, in which they formulated the question in the following words:—
“Where one or two co-sharers in a revenue-paying estate pays the whole revenue in order to save, and so does save the estate, is he entitled to a charge upon the share of his co-sharer to the extent of the latter's share of the revenue as against a purchaser?”
In referring the question to the Full Bench, the learned Judges observed that “no such charge is given by any express statutory enactment,” and to show the gravity of the question I may state here in passing that the Full Bench which had to consider the question consisted of five Judges who were not unanimous in their answer, Mitter and Norris, JJ., answering the question in the affirmative, and Wilson, Prinsep and Tottenham, JJ., answering the question in the negative. Since the same difficulty has arisen in this Court, it would scarcely be enough for me, sitting here as a member [305] of the Full Bench, to content myself by saying that I agree in the principles upon which the judgment of Mitter, J., concurred in by Norris, J.) proceeded in that case. I shall therefore deal with the question, not of course as res integra, but at greater length than would be necessary if there was no conflict of decision.
It seems that in the argument before the Full Bench of the Calcutta High Court in the case above cited, as also in the case before Cotton, Bowen and Fry, L.J.J, in Falcke v. Scottish Imperial Insurance Company, the expression “salvage” or “salvage lien” was employed for purposes of representing a charge such as the one claimed by the plaintiffs in this suit. In the Calcutta Full Bench case, as also in the English, case just mentioned, the use of the term was disapproved, since Wilson, J. in the Calcutta case, following Bowen, L.J, in the English case, held that “salvage” or “salvage lien” were limited to maritime law, and that such a doctrine did not apply to any matters which did not arise out of the perils of the sea. Into the discussion of this question it will presently be my duty to enter; but I may say here in passing that I agree in what has been said by Dr. Rashbehary Ghose with reference to certain legislative enactments which proceed upon the doctrine of salvage other than “maritime” salvage. Referring to these enactments the learned author observes:—
“These enactments rest upon a plain principle of equity, the charges created by them being recognized in most systems of law under the name of salvage liens, an expression not wholly useless nor absolutely misleading, and conveying, notwithstanding the recent protest of an eminent English Judge, a definite meaning, a recommendation not always possessed by some of even the most familiar terms in the English law. (Law of Mortgage in India, 2nd edition, page 316.)
With these remarks, I have already said, I concur, and, if it is a true proposition of our Indian law, as distinguished from the English or other systems, that the doctrine of salvage is limited to the perils of the sea, or what I may call the maritime salvage, then it must at once be conceded, as was held by Wilson, J., and two other [306] of learned Judges in the Calcutta Full Bench case following the dictum of Bowen, L.J in the English case above mentioned, that the plaintiff must fail in this suit.
This renders it necessary for me to consider in the first place, what the exact notion of the doctrine of salvage is in the English law, and in the next place to ascertain upon what principle it is based. Salvage is well defined by a modern writer on the present laws of England in the following words:—
“Salvage is a compensation for maritime services rendered in saving property or rescuing it from impending peril on the sea, or when wrecked on the coast of the sea or on a public navigable river or lake, where interstate or foreign commerce is carried on. The amount of the compensation rests in the sound discretion of the Court upon a full consideration all the facts of the case.” (Commentaries on the present Laws of England by Brett, Vol. II. p. 1068.)
This being so, I will before proceeding further, and at the risk of prolixity, quote a passage from the judgment of Lord Justice Bowen in Falcke v. Scottish Imperial Insurance Company which deals with the theory of salvage in the English law. The passage runs as follows:
“The general principle, is beyond all question, that work and labour done, or money expended, by one man to preserve or benefit the property of another do not, according to English law, create any lien upon the property saved or benefited, nor even, if standing alone, create any obligation to repay the expenditure. Liabilities are not to be enforced upon people behind their backs any more than you can confer a benefit upon a man against his will. There is an exception to this proposition in the maritime law. I mentioned it because the word ‘salvage’ has been used from time to time throughout the argument, and some analogy is sought to be established between salvage and the right claimed by the respondents. With regard to salvage, general average and contribution, the maritime law differs from the common law. That has been [307] so from the time of the Roman law downwards. The maritime law, for the purposes of public policy and for the advantage of trade, imposes in these cases a liability upon the thing saved, a liability which is a special consequence arising out of the character of mercantile enterprises, the nature of sea perils and the fact that the thing saved was saved under great stress and exceptional circumstances. No similar doctrine applies to things lost upon land, nor to anything except ships or goods in peril at sea.”
That this is a correct enunciation of the English maritime law of salvage I have no doubt. But, with all the profound respect which is due to the dicta of Lord Justice Bowen, I may say that there is nothing by way of distinction shown or explained by his Lordship why the same principle should not apply to similar perils on the land, and per bans of a worse nature than any perils which arise in the sea. There is no juristic reason explained in the judgment, and sitting here as Judge, bound neither by the technicalities of the English Common Law nor by technicalities of the rules of Chancery in England, I am free to ask myself the question why this doctrine of salvage lien is limited by the English Courts to perils of the sea as distinguished from the perils of the land. As an Indian Judge and a member of a Court which deals with disputes of parties living in a land the vast majority of whose inhabitants have never seen the sea, and are therefore not in a position to appreciate the dangers arising out of the upheaval of the billows of the ocean, I find it difficult to accept over questions of maritime salvage liens that any such sanctity can be attached to the perils of the sea as to place them upon a separate juristic footing from similar perils which arise on the land. As I understand Lord Justice Bowen's dictum in the case which I have cited, the man who saved a vessel from sinking would be entitled to a salvage lien because this would be a peril of the sea, but a person who saved Pompeii from destruction by the eruption of Mount Vesuvius at the risk of his life and at the expenditure of his money would not be entitled to such a salvage lien, because the eruption took place on land and not in the sea, and it follows from that dictum that the dangers of the sea for purposes [308] of the doctrine of salvage rest on a far higher footing than the perils of fire or earthquakes which occur upon land.
That such is the doctrine of English law, I accept to be a true proposition, for Lord Justice Bowen, in ending the passage which I have already quoted, said, with reference to salvage as to the perils of the sea:— ‘No similar doctrine applies to things lost upon land, nor to anything except ships or goods in perils at sea:—” and if I felt myself bound by the English law in administering justice in this case, I should have held as easily as was held by Wilson, J. in the Full Bench case of the Calcutta High Court, Kinu Ram Das v. Mozaffar Hosain Shaha that the plaintiff's case in a suit of this character must fail.
But with all the respect which is due to the evolution of juristic principles by the English Courts of Justice, and with all the respect which is due to eminent Judges who have presided in those Courts, I have not before me even one authority or one judgment cited which would furnish me with any juristic reason for supposing that the perils of the sea upon which the English doctrine of salvage is based are in all conditions greater than the perils of the land. It is of course natural to suppose that in sea-girt countries like England or other maritime countries like the Ionian Islands the terrors of the sea with its storms and the billows of the ocean may present a spectacle to the inhabitants of the islands and the maritime countries with a sensation of greater sanctity and effect than much greater perils that sometimes arise on the land whether by the act of Nature, by accident or by the effect of stringent legislative enactments which must be obeyed.
I do not take the instructive passage of Lord Justice Bowen's judgment in Falcke v. Scottish Imperial Insurance Company in any sense other than showing what the English law, as a matter of fact, is upon the subject of salvage, and as such I adopt it.
But I respectfully think the English law upon the subject is an unreasonable law as far as it restricts the salutary doctrine of salvage purely to maritime salvages. I have endeavored to ascertain [309] the historical origin of this limited form by the doctrine of salvage. Sir Patrick Colquhoun's Roman Civil Law (s. 977, Vol. II, p. 44) has the following:—
“The Rhodians were a maritime nation in the height of prosperity ‘long before the Romans occupied themselves with such matters. The Romans incorporated many of the Rhodian laws into their own Codes. Harmenopulos tells us that most of these laws were very ancient and Strabo speaks of the Rhodiansas possessing the empire of the sea. Should a ship be stranded or cast away, every one must save as much of his property as he can, as in case of a fire; thus, as has been above remarked, it be not to be inferred that he who throws things overboard for the purpose of lightening the vessel intends to abandon them after the fashion of a derelict, but is to be likened to a man overladen with too heavy a burden, who might put part of it down by the roadside and return afterwards with others to fetch the remainder.”
In the same section (977) the same learned author states:—
“The law which regulated the question of lightening a snip under pressure of necessity was the lex Rhodia de jactu, which requires a passing notice in this place. It was provided in s. 8 of that law that goods thrown overboard were not derelicts, but still belonged to the former owner, and this was the adopted maritime law of Rome. Every one who by damage to his own property on shipboard shall have saved that of another, can demand an appropriate indemnification of salvage, for the recovery of which an action can only be brought against the master of the vessel, who was bound to procure for the loser salvage from those whose goods had been preserved. The greater part of the provisions of this law relate to similar contributions and indemnifications, under certain circumstances, respecting goods thrown overboard and damage done to the vessel.”
How this rule gradually affected the English law as to wrecks is described in the next section (s. 978) of the same work, but it is needless to go into the details of that history. However, before [310] proceeding any further, I wish to quote a passage from another learned author, Sir Robert Phillimore, who in his celebrated work on International Law, Vol. IV, s. DCCCXXVIII, has the following:—
“When the preservation of the ship has required the throwing overboard or sacrifice of a portion of the goods, equity demands that a general contribution be made by all towards a loss sustained by some for the benefit of all, and this is called in England by the name of general average.” And then after stating that “the law on this subject was transplanted from the Maritime Code of Rhodes into the Roman Law,” the learned author goes on to say that, “the principle of this rule has been adopted by all commercial nations, but with considerable variation in practice as to the kind of losses which demand its application and as to the nature of the interests compellable to contribute.” Before making any observations of my own, I wish to point out that Sir Robert Phillimore distinctly, in the passage which I have quoted, rests the English Law doctrine of general average on equitable considerations, and it is therefore necessary to ascertain the exact scope of the notion of general average in English law. I again resort to Brett's Commentaries on the present Lows of England (Vol. I, p. 271), where the author has the following:—
“General average is a contribution by the owners of the ship, freight and charge to compensate the owner of a particular part of the ship or cargo, whose property was sacrificed for their common good, ex. gr., a jettison of cargo. The whole adventure must have been in imminent danger of being lost for a right to general average to exist, for the sacrifice must have been for the general good.”
Now, whatever distinction in matters of detail may exist between maritime salvage and general average, as understood in maritime law, one thing is certain, that, failing statutory provisions, they must rest upon one common footing. The origin of these liens appears to be more ancient than any statute law in England, for these notions are based, as the authorities show, upon the customs of the inhabitants of Rhodes, an island of Asiatic Turkey, near the [311] coast of Asia Minor, 36 miles long, with a breadth of 18 miles at its widest part and consisting of an area of 420 square miles, and situate in the Mediterranean Sea, so close to the islands of Greece that it must have been affected by the Greek superstition as to Oceanus, “A powerful deity of the sea, who, according to Homer, was father of all the gods.” The Romans, as the history of law shows, borrowed these doctrines from the Rhodians, and from the Romans the doctrine was borrowed by England along with other maritime countries with certain variations and limitations which Sir Robert Phillimore has explained.
The question then is, whether we in India are to hold that, because England, with her sea-girt shores, has chosen to adopt the Rhodian principle of salvage, limiting it to the perils of the sea and excluding the doctrine of salvage as resting upon a higher footing of equity than the perils arising out of the waves of the ocean, we are bound to adopt such a limitation, which, I respectfully think, is based in its historical origin on ancient maritime superstition.
My answer to the question must necessarily rest upon my ascertaining first of all what my duty as a Judge is under the law which I am called upon to administer. I agree with what was said by Wilson, J., in Kinu Ram Das v. Mozaffer Hosain Shaha that there is no “express statutory enactment” providing a charge such as that claimed in this case. But, whilst conceding this, I may also observe in passing that my endeavors have been futile in ascertaining whether the English law of maritime salvage, restricted as that salvage is to the perils of the sea, had its origin in any statute law in England. Nor have I been able to ascertain whether the common law doctrine of implied contracts, with all its requisite fictions as to request, had its origin in any statute law.
Now, the provisions of s. 37 of the Civil Courts Act (XII of 1887), reproducing as they do much earlier provisions of statute law, are clear in laying down that, with the exception of certain branches of the Hindu and the Muhammadan law, the Courts are to follow legislative enactments, and in cases not provided for by such enactments [312], “the Court shall act according to justice, equity and good conscience.” This much was indeed conceded by Wilson, J., in the Bull Bench case just mentioned but the learned Judge went on to say towards the end of his judgment:— “We are not, under these circumstances, in my opinion, at liberty to treat the matter as if it were res integra and under the name of equity and good conscience to adopt whatever rule we think most likely to work well.”
It is perfectly true that in dealing with questions not covered by express legislative provisions the Judge must not forget that he is a Judge and not a legislator. But it is equally true that a Judge sitting in one country is not to administer the laws of another country. To the English system of jurisprudence, common law and the principles of equity administered in the Courts of Chancery in England, India owes a vast debt of gratitude for the improvements in the administration of justice. How far the principles of the English system have been imported into India is apparent not only from our Statute book, but also from the vast body of decided cases, which I may describe as judge made law. Notions of justice, equity and good conscience are necessarily incapable of exact and exhaustive definition; and in administering them the Judge has to take exceptional care whether he is or is not importing foreign notions too far, or giving too much preference to the notions of equity in one country over the notions of another.
I have already endeavored to describe what in my opinion is the origin and history of maritime salvage in England. I have also said that I have been unable to find in the English cases cited any juristic exposition of the reasons why maritime salvage should be the only kind of salvage recognized by the courts. Lord Justice Bowen, in the passage which I have already quoted from his judgment in Falcke v. Scottish Imperial Insurance Company states that the special supremacy of maritime salvages over any other class of salvages that may exist (notwithstanding their repudiation by the English law) rests upon public policy for the advantage of trade and the nature of sea perils. That such [313] a rule rests upon sound considerations of equity I have no doubt. But why that equity should stop at the sea-shore, I frankly and respectfully confess I am unable to conceive, for I cannot help feeling that doctrines of equity are no more governed by the peculiarities of the sea than by the peculiarities of the land. A legislative enactment may indeed modify the operation of equitable doctrines by restricting them either to the sea or to the land, but, as I have already said, in British India no such legislative interference has taken place, and so far as this part of the country is concerned, the broad principles of equity, justice and good conscience must prevail under statutory mandate, regardless of foreign systems, though of course they may be referred to for purposes of comparison.
In this connection it becomes necessary to investigate whether the doctrine of salvage itself (irrespective of any considerations as to lien) has not a broader foundation in equity than the perils of the sea, or the grounds restricted by the English maritime law of salvage. I will quote from a jurist of as great eminence as Jeremy Bentham.—
“A surgeon has bestowed his services upon a sick man who had lost his senses and who was not in a condition to ask for assistance. A depository, though not requested to do so, has employed his labour, or has made pecuniary advances for the preservation of a deposit. A man has exposed himself in a fire to save valuable property or to rescue persons in danger. The effects of a passenger have been thrown overboard to lighten the ship and to preserve the rest of the cargo. In all these cases, and in a thousand others which might be cited, the laws ought to insure a recompense equivalent to the value of the services. This title to indemnity is founded upon the best reasons. Grant it and he by whom it is furnished will still be a gainer; refuse it, and you leave him who has done the service in a condition of loss. It is a promise of indemnity made beforehand to every man who may have the power of rendering a burdensome service, in order that a prudent regard to his own personal interest may not come into opposition with his benevolence.” And then the author, whilst laying down [314] this general juristic foundation of the rule of equity, goes on to say:—“Three precautions must he observed in arranging the interest of the two parties. First to prevent a hypocritical generosity from converting itself into tyranny and exacting the price of a service which would not have been accepted had it not been supposed disinterested. Secondly not to authorise a mercenary zeal to snatch rewards for services which the person obliged might have rendered to himself or have obtained elsewhere at a less cost. Thirdly not to suffer a man to be overwhelmed by a crowd of helpers who cannot be fully indemnified without counterbalancing by an equivalent loss the whole advantage of the service.” (Bentham's Theory of Legislation, Hildreth edition, pp. 191-92.)
Another passage from a more modern jurist needs quotation before I proceed to discuss the Indian Law. I quote from Professor Holland's work on Jurisprudence (p. 169):—
“According to Roman law a negotiorum gestor, or person who volunteered to render some necessary service to property in the absence of its owner, had a claim to be compensated by the owner for the trouble he had taken, and the owner had also a claim for any loss which had resulted from the interference of the negotiorum gestor. Of a similar character are the rights given by English law to the salvors of ships in distress and receptors of ships which have been made prize by the enemy and to those who have applied necessaries to persons who, being lunatics or in a state of drunkenness, were incapable of binding themselves by contract.”
I have quoted from Jeremy Bentham and Professor Holland for the purposes of maintaining the proposition, which I hold, that in jurisprudence the fundamental doctrine of salvage is neither limited to the perils of the sea nor to any particular class of perils, but that it is based upon sound foundations of the doctrines of equity. Maritime salvage as understood in the English law, is only a species of the genus and if England or other maritime countries restrict themselves to one or more species of salvage it does not follow [315] that Other countries which are not maritime, like the territories over which this Court exercises jurisdiction, should limit themselves to any species of salvage adopted by maritime countries to the exclusion of other species of salvage failing under the general genus of the equitable doctrine.
I will now consider how far this fundamental principle has been accepted by the Indian Legislature. In order to avoid the complications arising out of the fictions of English law in such cases, Sir Fitz-James ‘Stephen's Contract Act (IX of 1872) in Chapter V. deals with what are called implied contracts in English law under a general category of “certain relations resembling those created by contract.” The first of these sections (s. 68) deals with necessaries supplied to persons incapable of contracting, and the next section is more to the point here, because it lays down the general proposition of equity as much as of law, “that a person who is interested in the payment of money which another is bound by law to pay, and who therefore pays it, is entitled to be reimbursed by the other.” That the doctrine is shared by the English common law with equity is certain, and the difference, if any, lies in the fact that the common law relies upon fictions of implied requests, while equity jurisprudence is independent of such fictions. This section 69 of the Contract Act is specially important in this case because of the Illustration which is appended to it, which runs as follows:—
“B holds land in Bengal on a lease granted by A, the zemindar. The revenue payable by A to the Government being in arrear, his land is advertized for sale by the Government. Under the revenue law, the consequence of such sale will be the annulment of B's lease. B, to prevent the sale and the consequent annulment of his own lease, pays to the ‘Government the sum due from A. A is bound to make good to B the amount so paid.”
I shall later on have to refer to this s. 69 of the Contract Act, as also to the Illustration which I have just quoted. But meanwhile I must proceed to show that the next section (s. 70) of the chapter deals with the obligation of persons enjoying benefits of [316] non-gratuitous acts, and to that section is appended Illustration (b), which runs as follows:—
“A saves B's property from fire. A is not entitled to compensation from B if the circumstances show that he intended to act gratuitously.”
I have quoted this in passing to show that salvage from the dangers of the fire, as distinguished from the perils of the sea, may possibly be recognized, though the Illustration limits itself to the case of a salvor who intended to act gratuitously and though there is no Illustration appended to the section applicable to the case of a person who, though a volunteer, does not intend to act gratuitously, but incurs risk of life and expense to save property from imminent danger from fire. The remaining two sections of the chapter of the Contract Act (ss. 71 and 72) are unimportant for the considerations of the questions which arise in this case.
In order to guard against being misunderstood I must here observe that in discussing the questions from Jeremy Bentham and Professor Holland, as also the sections of the Contract Act, I have used the word salvage and salvor in their broad juristic sense as distinguished from maritime salvage with its peculiar restrictions, incidents and rules. Further, I have used the words as not necessarily implying a lien upon any specific property, so that, according to my notious, there may be a right of simple salvage without a lien and also a salvage with a lien. I must also add that in using these terms I bear in mind the distinction between a mere volunteer who officiously renders service, or incurs expanse to save the property of another, and a person who in order to save his own property makes payments which another is bound by law to pay to save his property.
Bearing these distinctions in mind, it would be a useless task for the purposes of this case to enter unto a disquisition as to the question in what cases a mere volunteer may be entitled to simple salvage without lien, and in what cases he would be entitled to salvage with lien. It is enough to say that these matters in any case must depend upon some doctrine of equity, for the English [317] common law theory of implied requests has, I hope, been abandoned by jurists by this time as a fiction.
What we are concerned with here is not the case of a mere volunteer who acts officiously, but the case of a person who, impelled by necessity under the stringent rules of the revenue law, has made payments the default of which would imperil not only his own property but also the property of others. The question being thus limited, it is important to ascertain the exact nature of the peril from which the plaintiff saved the property in suit against which he seeks to enforce his charge, which I call salvage lien. The statute law upon the subject is clear so far as it delineates the nature of the peril and the liability. S. 146 of the Land Revenue Act (XIX of 1873) provides that in the case of every mahal the entire mahal and all the proprietors jointly and severally shall be responsible to Government for the revenue for the time being assessed on the mahal.” The next (s. 147) provides as to the times and places for payment of such revenue, and s. 148 declares that any sum not so paid becomes thereupon an arrear of revenue, and the persons responsible for it become defaulters.” Then follows s. 149, which lays down that “a statement of account certified by the Tahsildar shall be conclusive evidence of the existence of the arrear, of its amount, and of the person who is the defaulter. This seems drastic enough, conferring as it does upon the certificate of an executive officer the importance of conclusiveness which it would not enjoy in a Court of justice under the ordinary rules of evidence. What follows is even more important and more drastic, namely, the provisions of s. 150, which I will quote in full, relating to process for recovery of arrears of revenue. The section runs as follows:—
An arrear of revenue may be recovered by the following processes:—
(a) by serving a writ of demand (dastak) on any of the defaulters;
(b) by arrest and detention of his person;
[318] (c) by distress and sale of his moveable property,;
(d) by attachment of the share or patti or mahal in respect of which the arrear is due;
(e) by transfer of such share or patti to a solvent co-sharer in the mahal;
(f) by annulment of the settlement of such patti or of the whole mahal;
(g) by sale of such patti or of the whole mahal;
(h) by sale of other immoveable property of the defaulter.”
I will not here discuss the question whether these perils are not greater than the perils of the sea, or at least equally great to invoke the aid of equity, which must necessarily be, even in ancient times, the foundation of the doctrine of salvage and general average as understood by the maritime countries of Europe. A sinking ship may sink if the salvor does not appear, but it may also escape sinking even if the salvor was not there, and, even if there, did not choose to run the risks and incur the expense of saving a sinking vessel by offering his officious services. But a joint estate such as that contemplated by s. 146 in our zemindari tenures must sink (not unlike a ship into the depth of the ocean) into vanishment by dint of the law and its drastic rules as contained in s. 150 of the enactment. Passing by the peril indicated by clause (b) of that section—namely, or “arrest and detention of his person” (which I suppose would not be regarded as wrongful confinement, especially as the Tahsildar's certificate under s. 149 as to the existence of the arrear and of its amount would be conclusive evidence). I refer to the peril indicated in clause (g) of the section, and also by clause (h) which follows it.
The point contemplated by clause (g) of s. 150 is represented by what may happen under s. 166 of the Act, the body of which section I wish to quote, leaving out the provisos, which have no application to this case. The section itself prescribes the following rule:—
“When an arrear of land revenue has become due and the Collector of the district is of opinion that the other processes herein-[319] before provided are not sufficient for the recovery of such arrear, he may, in addition to, or instead of, all or any of such other processes and subject to the provision hereinafter contained, and with the previous sanction of the Board, sell by auction the patti or mahal in respect of which such arrear is due.”.
Then comes the most important section of the enactment for the purposes of this case, of which I must quote the body, leaving out again the latter part of it, which has no application to this case. Referring to the preceding section, namely, s. 166, which I have already quoted, the enactment in s. 167 goes on to say:—
“Land sold under the last preceding section shall be sold free of all incumbrance, and all grants and contracts previously made by any person other than the purchaser in respect of such land shall become void as against the purchaser at the auction sale.”
These provisions of law leave no doubt in any mind that the Legislature, for reasons of public policy and public weal, rendered land-revenue payable by zamindari estates the first and most paramount charge upon the land, that in order to secure its punctual payment especially drastic provisions have been made, to such an extent that the effect maybe briefly stated to be that neither the person nor the property of the zamindar can escape serious jeopardy whenever default of the payment of revenue takes place. Drastic as these provisions may seem at first sight, they are based upon sound public policy and principles of good government in an agricultural country like India. Historically these provisions, which are sometimes reproachfully called oppressive, do not owe their origin to the British rule, but are traceable to the principles of land revenue administration inaugurated by the Emperor Akbar, who has well been called the Muhammadan Augustus Caesar of India. The British rule in adopting and improving those principles has proceeded upon sound considerations of public policy and good government quite as important as the public policy of maritime salvage, and they have worked with success.
I have dwelt upon this aspect of the matter at such length in order to point out that Lord Justice Bowen in his judgment, from [320] which I have quoted, does not rest the doctrine of maritime salvage upon any higher footing than “the purposes of public policy and the advantage of trade,” and to these he adds “the nature of sea perils and the fact that the thing saved was saved under great stress and exceptional circumstances.” Now, this being so, I hope I have said enough to indicate that whilst for maritime countries whose manufactures and commerce depend largely upon the safety of ships and cargo, so as to give a good foundation for rendering such safety an exception to the general rule, in an agricultural and non-maritime country, like the territories within the jurisdiction of this Court, similar considerations of public policy suggest that the rules of equity upon which in their origin the doctrines of maritime salvage and general average are based should be applied to promote the security which the state possesses under the law for collection of land revenue. That security enhances in proportion to the security given to the lambardar for recovery of money paid by him as arrears of Government revenue of behalf of his defaulting co-sharers. I wish to say again that in this case no exigency arises to deal with the case of a mere volunteer, but with the case of a person such as the plaintiff, who in order to obey the drastic rules of law as to the collection of land revenue not only saved himself but also the property and persons of his defaulting co-sharers. I find myself unable to understand why under such conditions the position of a salvor (I again use the word in its broadest juristic sense) such as the plaintiff should be rested upon a lower footing than that of a salvor from the perils of the sea, who officiously and even without the fiction of implied request saves a ship from sinking.
It has been urged, and I think the argument must be carefully considered, that whilst the statute law as contained in the Land Revenue Act (XIX of 1873) contains drastic rules for collection of land revenue, imperilling the liberty and property of the owner in a joint zamindari estate, it is totally silent as to any lien in favour of the lambardar or other co-sharer who makes payment of Government revenue on behalf of his defaulting co-sharers, thus saving them and their property from the drastic consequences contemplated by s. 150 [321] of the Act. This is so, and upon this circumstance it has been ingeniously contended that the only remedy which the law awards to a salvor (I again use the word in its broad juristic sense), such as the plaintiff, is provided by clause (g) or clause (k) of s. 93 of the Rent Act (XII of 1881) and that since that enactment neither empowers the Revenue Court to deal with questions of lien, nor can such decrees as the plaintiff obtained on the 7th of April 1885, against his defaulting co-sharers be executed as decrees enforcing such liens, therefore the Legislature intended to abrogate the doctrines of equity which, independent of legislative enactment, exist as a rule of decision unless they are expressly abrogated.
It is perfectly true, as I have already said, following the doctrine of Wilson, J., in the Full Bench case of Kinu Ram Das v. Mozaffer Hosain Shaha, that “no such charge is given by any express statutory enactment.” Whatever enactments Wilson, J., had to consider with reference to Lower Bengal, the same observation applies also to our statute law—namely, the Rent Act (XII of 1881) and the Revenue Act (XIX of 1873).
But what are we to gather from the silence of the Legislature? As I understand the rules of the interpretation of statutes, there is no more reason for holding that the Legislature by its silence intended to abrogate any doctrine of equity than there would be for holding that there is no law of torts in British India because the Legislature has not yet enacted upon the subject. And one thing is certain, chat so long as s. 37 of the Civil Courts Act (XII of 1887) is allowed to stand in the Statute book of the land (as I hope it will always do), the rule of “justice, equity and good conscience” must apply to all cases where there is no legislative enactment one way or the other. Further, that rule, as I understand it, does not mean that we are to disregard the special conditions of the country where it is applied, the principles upon which the laws of that country proceed, and I have no doubt that it does not authorise the importation in a rigid form either of the common law of England or any technical rules of the Courts of Chancery there. Much less is it possible for me to hold [322] that the limitations imposed by the maritime law of England or any other maritime country (partial as such countries naturally must be towards attaching importance to sea perils and perils to commerce) upon the general doctrines of equity (which are as independent of the breezes of the ocean as of the not winds of India) are to be bodily imported into an agricultural country such as this part of India.
It is now important, before I conclude, to discuss the case law upon the subject, taking the judgments of Mitter, J., and Wilson, J., in the Full Bench case of Kinu Ram Das v. Mozaffer Hosain Shaha as the starting point of such a discussion. I say so because in that case the point now under consideration was exactly the point then under consideration, and the Full Bench of five Judges was divided by a majority of three against two, one of the learned Judges of the majority residing from the views which he had on former occasions expressed in a judgment of his own.
Under these conditions I cannot refrain, at the risk of prolixity, from quoting a whole passage from Dr. Rashbebary Ghose's Law of Mortgage in India (2nd ed., p. 318), not only because I fully concur in it, but also because it will be introductory to what will follow in this judgment. The learned author says:—
“Co-parcenary being the rule in India, it is certainly very desirable that the rights and liabilities of co-parceners should be clearly defined, and yet there are perhaps few portions of Anglo-Indian law which are so deservedly open to the reproach of uncertainty. I do not refer here to matters which must be governed by the personal law of the parties, but to those altogether outside the pale of that law and regulated either by statute or by the general principles of justice, equity and good conscience, which ‘high-sounding phrases’ only too often mean an exact reproduction and not a careful adaptation of English law. The Indian Legislature has, it is true, occasionally in dealing with certain special matters embodied in the Statute book some of the general principles of equity, but the result of such fragmentary legislation has been not to assist but [323] rather to embarrass our judges in applying such principles in analogous cases not governed by statute law. A complete code artistically arranged is, no doubt, a triumph of legislative skill. But a sincere, and indeed fervent, advocacy of legislation proper, as distinguished from judge-made law, is perfectly consistent with a wholesome distrust of the beneficial effect of piece-meal legislation, or, as it has been sometimes irreverently called, legislative tinkering. I cannot find better illustration of what I mean than the recent case of Kinn Ram Das v. Mozaffer Hosain in which a majority of the judges came to the conclusion that a part-owner is not entitled to a charge upon the share of his co-sharer for land revenue paid by such co-sharer as against a purchaser whether with or without notice. It seems to mo extremely doubtful, however, whether this conclusion would have been arrived at if the matter had been free from the entanglement created by the provisions of an Act which, while laying down the procedure regulating sales of arrears of revenue, incidentally gives a right of this kind to a mortgagee, but is wholly silent as to the rights of a part-owner. The inference which was drawn by a majority of the learned judges from the silence of the legislature was that a mortgagee alone was entitled to the benefit of a lieu.”
Now it is important to consider why in the Calcutta Full Bench case Wilson, J., for whose rulings I have always entertained high respect, limited the lien to the case of a mortgagee only. He had before him the Bengal Revenue Sales Act (XI of 1859), and the latter part of his judgment is devoted to the interpretation of s. 9 of that enactment, which, whilst declaring alien in favour of a mortgagee, is silent as to any such lien in favour of co-sharers paying arrears of revenue on behalf of the defaulters. He had no doubt in his mind the maxim expressio unius est exelusio alterius, and then applying the maxim to the enactment before him arrived at the conclusion that because a lien was expressly declared in favour of mortgagees, and no such declaration was made in favour of co-sharers, therefore no such lien in favour of the latter existed. In this view he was confirmed by what he says:—“The corresponding [324] s. 9 of Act I of 1845 was in similar terms, except that in did not contain the last clause about lien.” As to so much of his judgment, therefore, as proceeds upon the interpretation of statutes applicable only to Lower Bengal, much need not be said, because those enactments are not in force in this part of the country. What is important to consider are his views as to the general principles non which his judgment proceeds. The learned judge, after referring to the enactments, concedes an important principle when he says:—
“It could not of course be contended that an enactment which purports expressly to confer a narrow and limited right, of necessity excludes a larger right, if the existence of the larger right is clearly established apart from the special enactment.” So far I fully concur with the learned judge, and it is important to consider why he did not act upon that general principle. As a qualification of that general principle he goes on to say:—
“But where the existence of a larger right is not clear, but highly doubtful, I think the express creation of the narrower right tends strongly to negative the existence of the larger.”
Now on this part of the judgment I wish to make only two observations with due respect. First, that the learned judge in making the observation as to the absence of lien in the nature of salvage such as was claimed in that case, had most probably in his mind the somewhat unqualified dictum of Lord Justice Bowen in Falcke v. Scottish Imperial Insurance Company that “no similar doctrine applies to things lost upon land, nor to anything except ships or goods in peril at sea.” That this was so is apparent from what Wilson, J., said with reference to the English case just cited. In the earlier part of his judgment he said: “In the latter of these cases the doctrine of what has been called salvage lien acted upon in some Irish cases, is, I think, authoritatively rejected.” But it must be remembered that Lord Justice Bowen was laying down a doctrine of maritime law in a maritime and commercial country like England; that there is nothing in his judgment to show that [325] he intended the rule which he was laying down to be a rule of universal application to all countries, and in all conditions of the population of those countries; nor do I think I am going too far in undertaking the risk of saying that in all probability there was nothing farther from Lord Justice Bowen's mind when he delivered his judgment than the perils to ownership of zemindari estates under the law in our non-maritime and agricultural India.
The second observation, which I make with equal respect, relates to the use of the expression “the express creation of the narrower right” employed by Wilson, J., in the passage which I have quoted. It amounts, I respectfully think, to begging the question, because, according to my humble opinion, the declaration of any right by statute does not abrogate any other existing right by mere implication, and to say that such a right did not exist in equity before the passing of any particular enactment, is to assume the foundation of a contested argument. And I may say that in that very case Mitter, J., with the concurrence of Norris, J., has shown why such an assumption is unassumable.
I have already stated how upon this point the Full Bench of the Calcutta High Court was divided. I have repeatedly perused the judgment of Mitter, J., on the one hand, and the judgment of Wilson, J., on the other as expositions of two opposite views. The judgments exhaustively deal with the case law upon the subject, and it would be a work of supererogation to refer to the numerous cases which were discussed by those learned judges, and I will therefore refer only to more prominent ones among them. Most important of all is the dictum of the Lords of the Privy Council in Nugender Chunder Ghose v. Sreemutty Kaminee Dossee, in which Lord Romilly, in delivering the judgment of the Privy Council, made the following observations:—
“Considering that the payment of the revenue by the mortgagee will prevent the Talook from being sold, their Lordships would, if that were the sole question for their consideration, find it difficult to come to any other conclusion than that the person [326] who had such an interest in the Talook as entitled him to pay the revenue due to the Government and did actually pay it, was thereby entitled to a charge on the Talook as against all persons interested therein for the amount of money as paid.”
This dictum of their Lordships of the Privy Council was interpreted in Syed Enayat Hossein v. Muddan Moonee Shahoon, by Markby and Mitter, JJ., to be comprehensive enough to lay down a broad principle of salvage lien in favor of co-sharers of zamindari estates, who by payment of Government revenue on behalf of their defaulting co-sharers saved the whole mahal from revenue sale. This interpretation, and the principles which it lays down, was followed in the Calcutta High Court by other judges, McDonell, Field, Maclean, Jackson, Tottenham and White, JJ. in the various cases referred to by Mitter, J., in his judgment. In this Court the same interpretation was adopted by Oldfield, J., with the concurrence of my brother Tyrrell in Luchman Singh v. Salig Ram, and by me in Bhup Singh v. Gulab Rai which has not been published in the official Law Reports. The interpretation and principle was however doubted by Pontifex, J., in an obiter dictum which he delivered in Kristo Mohinee Dossee v. Kaliprosono Ghose, with the concurrence of Garth, C.J Thus the question of the interpretation of Lord Romilly's dictum and the principle which it lays down became the subject of serious consideration in the Calcutta Full Bench case, and with all due respect to the judgment of Wilson, J., in that case, I may say that I adopt the views of Mitter, J., as to the scope and interpretation of the dictum for the reasons which he has fully explained in his judgment, among them being the significant circumstance that whilst in the course of the argument before the Full Bench in the Calcutta case it was asserted that Lord Romilly, then Master of the Rolls. “in deciding cases in his own Court has disapproved of the doctrine which it is contended has been laid down by the dictum in question,” no case was cited to justify such an assertion. Further, the views of Mitter, J., as expressed in the Full Bench case are in full accord with the views hitherto [327] entertained as to that dictum by this Court in the cases to which I have already referred, and nothing in the argument addressed to us in this case enables me to adopt a different view.
I will now pass on to the consideration of the question how far the other Courts have accepted the principle upon which the judgment of Mitter, J., with the concurrence of Norris, J., proceeded in the Calcutta Full Bench case. So far as the late Sadr Diwani Adalat of Calcutta is concerned, I think it is enough to say that I have perused the cases cited by Wilson, J., and Mitter, J., in their judgments, and I respectfully think that they are not helpful either one way or the other as authorities upon the equitable doctrine of salvage lien now in question, which does not appear to have been urged or argued in those comparatively ancient cases. Similar remarks apply to the rulings of the late Sadr Court of these Provinces.
Coming then to more modern times, it is important to ascertain how the case law now stands in the four High Courts established by Royal Charter in British India. The state of the case law in the Calcutta Court is best represented by the Full Bench case of Kinu Ram Das v. Mozaffer Hosain Shaha(5), to which such frequent reference has already been made, with the result that in a Bench of five Judges the opinions were so divided that the majority is represented by what-I may respectfully call the casting vote of Tottenham, J., who explained that he had altered his opinion adopted in earlier cases. In Bombay, Sargent, C.J, and Birdwood, J., in Achut Ram Chandra Pai v. Hari Kamti, having before them some of the ‘Calcutta cases, dissenting from the principle upon which the doubts of Pontifex, J., and the judgment of Wilson, J. (in the Calcutta Full Bench case) proceed, went on to say:—
“This distinction, however, does not appear to us to affect the principle enunciated in Nugender Chunder v. Sreemutty, viz., that such payments are in the nature of salvage payments and which is also the ground on which the decisions in the Irish cases and in [328] Shaik Idrus v. Vithal Rakhmaji proceed. The payment of the assessment by; the part owner is by a person entitled to pay it, and who does so, ex hypotkesi, under circumstances which make it necessary in order to save the estate for himself and co-owners, and, in either view of such payment, he becomes equitably entitled to a charge on the whole estate as against the other co-sharers, and if this is so the mere circumstance that he has no existing charge on their shares at the time would appear to be no sufficient reason, in equity, justice and good conscience, for not allowing him to realize the payment from the shares of his co-owners for their respective quotas. The judgment of Fry, L.J, in Leslie v. French doubtless shows that the question as to the effect of analogous payments in England in creating a charge on the other interests which share in the benefit of it is still far from settled, although there are many cases which support the above principle; but, however that may be, we think that the Calcutta decisions to which we have referred as recognizing a charge in those cases in which the assessment is paid by a part owner to save the estate, are in accordance with equity, justice and good conscience, and should be followed in this country.”
I have quoted this passage in extenso because the Bombay High Court, so far as I am aware has never departed from the principles which it thus enunciated.
I Will now consider how the Madras High Court has dealt with similar principles. In Sheshagiri v. Pichu, Kernan, J., made observations which I wish to quote, as they represent howtbeiaw stands in that Court upon these matters of principle. The learned Judge said:—
“The lands of defendant No. 4 and of the plaintiff are both liable to a common burden;neither of them can get his land free from the claim for revenue without paying the amount due on the whole lands: Secretary of State for India v. Narayanan(6). It would be against equity and good conscience that the common burden be [329] thrown exclusively on either lot of land or on either of the parties. This subject was much discussed by a Bench of five Judges in Calcutta: Kinu Ram Das v. Mozaffer Hosain Shaha(7). In that case many authorities were Considered, and by a majority of three Judges to two it was decided that a plaintiff in the same position as the plaintiff here was not entitled to a decree that the land of the defendant was subject to a charge to repay the defendant's share of the common liability for rent paid by plaintiff. I agree with the opinion of the minority for the reasons expressed by Mr. Justice Mitter in his judgment.”
The learned Judge then went on to refer to some other cases, and the dicta of Mr. Justice Story is his renowned work on Equity Jurisprudence. These I need not refer to in detail, but I may state that Muttusami Ayyar, J., who was associated with Kernan, J., in that case, in expressing his concurrence, expressly stated that he was inclined to agree with the minority of the Full Bench of the Calcutta High Court in Kinu Ram Das v. Mozaffer Hosain. As against this view, however, a recent case of the Madras High Court Thanikachella v. Shudachella has been referred to. That case, so far as the report shows, was heard by Mr. Justice Parker, sitting as a single Judge, and I may say, with all due respect and without any remarks as to the interpretation of the statutes referred to in his judgment, that judgment is so laconic that it has not been instructive to me as to whether or not the learned Judge intended to rule one way or the other as to the doctrines of equity which Kernan and Muttusami Ayyar, JJ. dealt with in Sheshagiri v. Pichu.
I now come to the state of the case law in this Court itself. In Lachman Singh v. Salig Ram, Oldfield, J., with the concurrence of my brother Tyrrell, said:—
“No doubt by paying arrears of revenue, which he was bound to do, the defendant would obtain a charge on the estate against all persons interested therein for the sum paid, and this has been laid [330] down by their Lordships of the Privy Council in Nugender Chunder Ghose v. Sreemutty Kaminee Dossee.” Referring to this case, I made certain observations in Bhup Singh v. Gulab Rai, which I wish to quote here, as they rest in principle upon the same doctrine of salvage lien as this case, with this distinction of detail, that whilst in that case the party claiming lien was in possession and defendant, in this case the party seeking to enforce such lien is not in possession and is plaintiff in the suit. This difference of detail does not alter the applicability of the doctrine, as will appear from what I said in that case. After referring to the ruling of Oldfield and Tyrrell, JJ., in Lachman Singh v. Salig Ram, I said:—
“Here the defendants have already purchased the property in execution of a decree which was passed for money advanced by their father on behalf of Dhan Kuar, in payment of the arrears of revenue due by her in respect of this property; and the question is not whether any decree held by them can be so enforced as to enforce the charge, but the point is, whether they, being in possession, can claim that any sale which may take place in enforcement of the plaintiff's mortgage, shall be subject to the extent of the money paid as Government revenue on behalf of Dhan Kuar. I am of opinion that they are entitled to claim that to the extent to which their purchase contributed to pay off the revenue due on the estate which they have purchased, they hold a charge which cannot be defeated by any sale which may take place in enforcement of the plaintiff's lien decreed on the 14th of August, 1882. This view is consistent with the principle upon which the cases already referred to by me proceed, and I respectfully think that the doubts which Pontiles, J., expressed in the case of Kristo Mohinee Dossee(8), as to there being no equity in such cases, are explainable by the doctrine upon which Courts of equity allow lien in respect of advances in the nature of salvage. No doubt the general rule is, that a person who spends money upon the property of another, cannot by that fact itself acquire a lien upon such property, unless, having some interest in that property, he, to order to save that interest, [331] expends money which also benefits another. This is illustrated by the case of a mortgagee who, in order to save his security, pays off the Government revenue, a charge which, if not paid off, might result in a sale which would defeat not only the mortgagee's interest, but also the ownership of the mortgagor. To such a case the observations of the Lords of the Privy Council, which I have already quoted, are directly applicable, and whilst I am prepared to concede that those remarks are not directly applicable to the point now under consideration, I hold that the ultimate basis of the doctrine of equity upon which they proceed is identical in principle to the charge which a co-sharer in a zemindari mahal acquires upon the share of his co-sharer for such advances as he makes in payment of Government revenue, which being the first charge upon such estates, would, if unpaid, result in the sale of the whole estate. In the case of a mortgagee paying revenue due by the mortgagor, the principle is that the payment was made to save the mortgage, and also the rights of the mortgagor. So also, in the case of a joint co-sharer in a zemindari estate paying off the revenue due not only on his own share, but also on that of his co-sharer, the object of payment is to save the whole estate. The distinction between the two cases therefore amounts only to a difference in detail, and, in my opinion, cannot alter the principle. The payment of revenue by one co-sharer on behalf of himself and another co-sharer of a mahal is to no sense an officious payment, because, but for such payment, his own zamindari rights of ownership might be defeated by sale in arrears of revenue.”
I still adhere to these views, and, following the ratio upon which they proceed, I hold that the plaintiff is entitled to the lien which he claims in this suit, and that such lien being in the nature of a charge such as that contemplated by s. 100 of the Transfer of Property Act, can be enforced as a first charge according to the rules, mutatis mutandis, applicable to simple mortgages. I also hold that inasmuch as the payment of Government revenue by the plaintiff saved not only the proprietary interest of defaulting co-sharers, but also such interest as the defendant-appellant, [332] Chhitar Mal, possessed under his mortgages of 1873 in enforcement whereof he purchased the property in suit, the plaintiff's charge is paramount to those mortgages and that purchase, and the defendant-appellant cannot resist it, regardless of how much of the property purchased by him was subject to those mortgages and purchased in the enforcement thereof, and how much was free from those mortgages and purchased by him under his decrees. Neither the mortgages nor the decrees under which the sale and purchase by the defendant-appellant took place could override the paramount salvage lien which the plaintiff possesses under the equitable doctrine which I have endeavoured to explain. And to guard against being misunderstood, I wish to say, in the first place, that I do not rest my decision upon the doctrine of subrogation, for the plaintiff could not by payment of the Government revenue acquire the right of enforcing his lien in the same manner as the Land Revenue Act (XIX of 1873) entitles the revenue authorities to do by executive processes which I have already described. In the next place, I wish to point out, as I have already said, that in this case we are not dealing with the case of a mere volunteer who officiously makes payments, but with a person who, impelled by the requirements of the law and the exigencies of his own interests in the joint estate, had to make payments of Government revenue to save the whole estate from being sold for arrears of Government revenue, a sale which would defeat the present defendant-appellant's mortgages as much as the rights which his mortgagors, the original proprietors whose rights the defendant-appellant has purchased. In the third place, it must be observed that, so far as the defendant-appellant is concerned, we are not concerned with the case of a bona fide purchaser for value without notice, but with a person who, as is apparent from the facts of the case as stated, purchased with ample notice of the plaintiff's charge upon the estate for having paid arrears of antecedent Government revenue to save the estate from revenue sale, which would defeat the mortgages upon which he obtained decrees and in execution of which he purchased the property which be now wishes to save from the plaintiff's charge.
[333] Limiting my rule, therefore, to these circumstances, and limiting the rule which I have laid down to the exigencies of this case, I would dismiss the appeal, and allowing the cross-objections raised by the plaintiff-respondent, set aside so much of the decrees of the lower Courts as dismiss the suit, and, following the principle of s. 100 of the Transfer of Property Act (IV of 1882), would frame a decree in terms of s. 88 of that enactment, fixing a period of six months for payment of the money, and in default of such payment awarding sale in enforcement of the plaintiff's lien.