Syed Enayet Hossein Alias Dhunnoo Meah Vs Muddun Moonee Shahoon

Mitter, J.@mdashThe principal contention in this special appeal has been that the lower Appellate Court is in error of law in wholly absolving the defendant No. 1 from any liability. We agree with the District Judge that the defendant No. 1 should not be made personally liable in this case. Although, no doubt, the defendant No. 1 has been ultimately benefited by this payment, we do not think that ground alone is sufficient to fix any personal liability upon the defendant No. 1. If that, were so, all the under-tenants whose tenures might have been cancelled by the auction-sale would be equally liable. It appears to us that the defendant No. 1, though benefited, is not personally liable, because it was not her debt that has been paid off. At the time of the payment she simply occupied the position of an attaching creditor in whose decree a lien has been declared. The arrears of the Government revenue of, that period was therefore not her debt, but that of defendant No. 2, who was then the proprietor of the mehal. Although we are of opinion, that defendant No. 1 is not personally liable, yet we do not think that it would be equitable to hold that the advance by the plaintiff should not be considered as a charge upon the share of the mehal No. 50, on account of which the revenue was due. If such payment be not considered as a charge upon the property saved from auction-sale, in many cases it would positively result in injustice. For, example, where the mortgagor is really insolvent and the mortgaged property passes absolutely into the ownership of the mortgagee before the person advancing the money is reimbursed his loss. On general principles of equity, therefore, we think we ought to hold that the plaintiff is entitled to a declaration that the money which he advanced is a charge upon the share of the mehal No. 50, now in the possession of the defendant No. 1. In the case of Nugenderchunder Ghose and Another vs. Sreemutty Kaminee there is a clear expression of opinion of the Judicial Committee in support of this view of the law. Although it is a mere expression of opinion, for the case was decided quite upon a different ground, yet it is entitled to great weight. In that case a mortgagee paid the Government revenue of an estate whilst it was in the possession of a Hindu widow. At the time of this payment, Act I of 1845 was in force, and s. 9 of that Act did not contain a provision to the effect (as the corresponding section of Act XI of 1859 does) that the amount so paid should be added to the amount of the original mortgage. The mortgage after that payment brought a suit against the widow, and obtained a personal decree against her. The widow haying died, and the property devolved upon her husband''s heirs, and the mortgagee attempting to execute the decree by the sale of the estate saved, was successfully opposed by the heirs in possession. Whereupon, a regular suit was brought for declaration that the money advanced should be declared a charge upon the property. In that case their Lordships, of the Judicial Committee make the following observation:--"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 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 the money so paid." Although we do not find any distinct authority directly laying down this principle, yet the case of Manikmulla Chowdhrain v. Parbuttee Chowdhrain S.D.A., 1859, 515 seems to lend great support to this view of the law. The result is that the judgment of the lower Appellate Court, wholly dismissing the suit against defendant No. 1 should be set aside, and as against defendant No. 1, the plaintiff should have simply a declaration that the amount advanced by him is a charge upon the share of the mehal No. 50, which has passed to him by auction-sale. Under the circumstance of the case, we think that each party should bear his own costs in this Court and the lower Appellate Court.