KIDAR LALL SEAL AND ANOTHER versus HARI LALL SEAL

Citation: [1952] 1 S.C.R. 179 · Decided: 18-12-1951 · Supreme Court of India · Bench: SIR SYED FAZL ALI

Judgment (excerpt)

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5.C.R. 
SUPREME COURT REPORTS 
179 
KIDAR LALL SEAL AND ANOTHER 
ti. 
HARI LALL SEAL 
[ SAI~ID F AZL Au and V !VIAN BosE JJ.] 
Transfer of Property Act (IV of 1882)1, -ss. 82, 92-lndian Con-
aract Act (IX of 1872), s. 43-Mortgage-Contribution between co-
mortgagors-Liability to contribute-Whether proportionate to value 
.of properties mortgaged, or benefit derived by each mortgagor-
General and special law-Equitable considerations. • 
The right to contribution as between co-mortgagors is governed 
!by ss. 82 and 92 of' the Transfer of Property Act and not by 
·s. 43 of the Indian Contract Act, inasmuch as s. 43 of the. Contract 
Act deals with contracts generally, while ss. 82 and 92 of the Trans-
fer of Property Act specifically deal with the right of contribu-
'tion between co-mortgagors. It is an established principle 
that 
when there is a general law, and a special dealing with a parti-
cular matter, the special excludes the general. 
Consequently, in 
the absence a contract to the contrary, co-mortgagors are bound 
:to contribute proportionately to the value of· the shares or parts 
.of the mortgag~d propert¥ owned by them and not in proportion 
.to the extent of the benefits derived by each of them. 
~s ss. 82 and 92 of the Transfer of Property Act prescribe the 
.:onditions in which contribution is payable in India when there 
is · a mortgage, it is not proper to. introduce into the matter 
.extrinisic principles based on equitable considerations. 
CIVIL 
APPELLATE 
JURismcnoN: 
Civil Appeal No. 
101 of 1950. 
Appeal by special leave from the Judge-
ment and Decree dated the 20th September, 1949, of 
the High Court of Judicature at Calcl;ltta (Harries C. J. 
and Chatterjee J.) in Appeal No. 46 of 1949 arising 
·out of Decree dated the 31st 
August, 
1948, of 
the 
Hon'ble S. B. Sinha J. of the Calcut.ta High Coul\ in 
Suit No. 343 of 1943 instituted 
under 
the 
Original 
Jurisdiction of the High Court). 
M. C. SetalrAad, Attorney-General for India (B. Sen, 
with him) for the appellant. 
S. C. Isaac (B. Banerjee, with him) for the respond-
(:nt. 
· 
1951. December 18. 
The leading judgment 
was 
delievered by Bose J. 
Fazl Ali l· agreed. 
·-
1951 
Dec. 18. 
• 
Kidar I.All Seal 
•nd Another 
v. 
H ari I.All SeJd 
Bose /, 
180 
SUPREME COURT REPORTS 
(1952]' 
BosE J.-This is a defendant's 
contribution brought by the son 
the co-mortgagors. 
appeal m a suit for 
of a mortgag<?r againsr 
The parties are related as below :-
Balai Lall Seal 
(died 1917) 
. I 
BeJoy Lall 
(D.23-5-33) 
I 
Jugal Lall 
I 
. 
Meghamala Dass• 
(died 1945) 
I 
. I 
I 
B1swa Lall 
Tarak Lall 
(D. Nov. 1936) 
.1 
Han Lall 
(Plff.) 
I 
Kedar Lall 
Deft I 
(Born 
22-11-1907) 
I 
Naku Lalf 
Deft. 2 
(Born 
7-2-1910} 
The mortgagors were the plaintiff's father Tarak 
Lall and Tarak's two brothers Kedar and Naku. The 
mortgage was executed on the 12th 
June, 
1936, · m 
favour of one 
Mst. 
Gyarsi for 
a 
consideration 
of 
Rs. 80,000. 
For convenience I will call this the suit 
mortgage though this is not a suit on the mortgage. 
The mortgagee sued in the year 1938 and obtained 
a preliminary decree for sale on the 17th of February,. 
1939, for a sum of Rs. 89,485-12-9 plus costs. · The 
decree was made final on the 22nd of December, 1939. 
In executing the mortgagee proceeded against the 
property of the plaintiff alone 
(as Tarak's son) 
and, 
during the pendency of the execution, assigned 
her 
rights in the decree to the Hooghly Flour Mills. 
The 
Mills continued the 
execution 'and on the 11th 
of 
March, 1943, 
the claim was satisfied in this way. 
An order of the Court was obtained sanctiol}ing sale 
of a part of the mortgaged property, 20 Round Tank 
Lane (which belonged exclusively to the plaintiff), to 
the decree-holder for a sum of Rs. 1,50, 000. It wa• 
directed that the consideration should first be applied 
in payment of the claim and costs and that the decree-
holder should execute a reconveyance of the rest of the 
mortgaged properties in favour of the mortgagors. The 
sanction of the Court was necessary because the judg-
ment debtor Hari Lall (present plaintiff) was a minor. 
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SUPREME COURT REPORTS 
181 
This was done and 20, Round Tank Line, was con-
veyed. by the present - plaintiff to the Hooghly Flour 
Mills on the 18th of March, 1943. Out of the considera-
tion a sum of Rs. 97,116~11-0 was paid to the Mills in 
full satisfaction of the claim ·and costs then 
outstand-
ing. The Mills executed a reconvey

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