GANESHI LAL versus JOTI PERSHAD

Citation: [1953] 1 S.C.R. 243 · Decided: 07-11-1952 · Supreme Court of India · Bench: BIJAN KUMAR MUKHERJEA · Disposal: Dismissed

Judgment (excerpt)

... 
-
S.C.R. 
SUPREME COURT REPORTS 
GANESH! LAL 
v. 
• 
JOTI PERSHAD. 
[MuKHEHJEA, CHANDHASEKHAHA ArYAH and 
BHAGWATI JJ.J 
243 
Mortgage-Co-mortgagors-Redemption of entire mortgage by 
co-mortgagor paying less than amount really due-Right to contribu-
tion from others-Whether limited to their share on amonnt actnally 
paid-Principles of equity. 
On principles of equity, justice and good conscience, which 
apply to the Punjab (where the Transfer of Property Act, 1882, 
is not in force) if one of several joint mortgagors redeems the 
entire mortgage by paying a sum less than the·full amount due 
under the mortgage, he is entitled to receive from his co-mortga-
gors only their proportionate shares on the amount actually paid 
by him. 
He is not entitled to claim their proportionate shares 
on the amount which was due to the mortgagee under the terms 
of the mortgage on the date of redemption. 
Hodgson v. Shaw (40 E. R. 70), Digambar Das v. Harendra 
Narayan Panday [(1910) 14 C.W.N. 617] and Suryanarayana v. 
Sriramulu [(1913) 25 M:.L.J. l6] referred to. 
Judgment of the High Court of Punjab at Simla affirmed. 
CrvrL APPELLATE JuHISDICTION: Civil Appeal 
No. 166 of 1951. Appeal from the Judgment and 
Decree dated September 15, 1948, of the High Court 
of Judicature for the State of Punjab at Simla (Maha-
jan and Teja Singh JJ.) in Regular Second Appeal 
No. 1844 of 1945 from the Judgment and Decree 
dated June 5, 1945, of the Court of the District 
Judge, Gurgaon, in Civil Appeal No. 171of1943, 
arising out of the Judgment and Decree dated August 
27, 1943, of the Court of the Subordinate Judge, 
Gurgaon, in Civil Suit No. 11 of 1943. 
Tarachand Brijmohanlal for the appellant. 
Gurubachan Singh (Radha Krishan Aggarwal, with 
him) for the respondent. 
1952. November 7. 
The Judgment of the Court 
was delivered by Chandr:i.sekht1>r::v Aiyar J, 
.~2 
11i52 
Nou. 7 • 
244 
SUPREME COURT REPORTS 
[1953] 
1952 
'CHANDRASEKHARA AIYAR J.-The plaintiffs, Joti 
Ganeshi Lal Prasad and Sat Narain, sued for partition and posses-
v. 
sion of their two-fifths share in the suit properties 
Joti Pmhad. alleg'ing that the first defendant was alone in posses-
-
sion of the same, having redee'med a mortgage 
Ohandrasekhara executed by the joint family of which the plaintiffs 
•hvar J. 
and defendants were members, in favour of one 
Raghumal in the year 1896 on paying Rs. 5,800. 
Defendants 2 to 5 were impleaded as co-sharers. Out 
of them, defendants 2 and 3 admitted the claims of 
the plaintiffs. Defendant 4 ·died pending suit, and 
her name was struck off. 
Defendant 5 supported 
the first defendant. 
On the date of the trial court's 
decree, the two plaintiffs were held entitled to one-
sixth share each. 
The first defendant resisted the plaintiffs' claim. 
He contended that the redemption by him in 1920 
was not on behalf of the joint family as alleged by 
the plaintiffs but on his own account as there had 
been a disruption of the joint family status much 
earlier, and that before the plaintiffs could get any 
relief, they were bound to pay him not merely a 
proportionate share in the sum of Rs. 5,800 which 
he paid to the mortgagee for redemption but their 
c)i 
share in the original mortgage debt of Rs. 11,200. 
He also denied that the original mortgage was exe-
cuted on behalf of the joint family. 
The Subordinate Judge, and on appeal, the High 
Court fouud that the original mortgage was a mort-
gage transaction of the joint family, and that the first 
defendant, G:i.neshi I,al, redeemed the mortgage on 
his own account and for his own benefit at a time 
when there was no longer any joint family in exist-
ence. It was further held by the trial court that the 
plaintiffs and other co-sharers were bound to pay 
their proportionate share· of the amount paid by the 
first defendant to 
redeem the mortgage, namely, 
Rs. 5,800. 
But from this a sum of Rs. 1,200 which 
he had already received by way of redemption of 
certain mortgage rights had to be deducted. 
The 
District J ndge enhanced this sum of Rs, 4,600 to 
t 1 
S.C.R. 
SUPREME COUR'r RElPORTS 
245 
Rs. 5,000, as the first defendant had paid taxes due 
1952 
on the property up to 1940, but he confirmed the 
Ganeshi La.l 
main findings of the Subordinate Judge. 
A second 
v, 
appeal preferred by the first defendant was dismissed Joti Pershad. 
by the High Court at Simla (Mehr Chand Mahajan 
and Teja Singh J J.). 
They repelled the contention Cha,,drasekhara 
of the first defenda

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