JUDGMENT : BANERJI, J. 1. The defendants above-named contended in the court below and contend here that they are entitled to contribution from the village Mansa; that they hold a prior charge on that village for the amount of contribution due to them, and that the plaintiffs are not entitled to bring the village Mansa to sale without paying off the charge. This claim of the defendants-appellants, which was disallowed by the court below, is resisted on behalf of the plaintiffs upon the following grounds, namely, first, that a right to contribution does not arise where there has been a forced sale, secondly, that contribution cannot be claimed unless the whole debt has been discharged by the person claiming contribution, thirdly, that even if the appellants are entitled to contribution, they are not entitled to a charge on the property in question, and lastly, if they have a charge, it cannot take priority over the plaintiff's mortgage. 2. These are the questions which we have to determine in this appeal. There can be no doubt, as the plaintiffs had acquired an interest in the village Mansa before the suit for contribution referred to above was brought, and as they were not parties to that suit, the decree passed in it is not binding on them, and it must be established in this case that the appellants have a right of contribution, and that the amount of contribution to which they are entitled is a prior charge on the village Mansa. 3. As regards the first contention mentioned above, namely, that contribution cannot be claimed in respect of a payment levied by legal process, the learned vakil for the respondents relied on certain observations contained in the judgment of the Madras High Court in Sesha Ayyar vs. Krishan Ayyangar, [1900] I.L.R. 24 Mad. 96 which undoubtedly supported the contention. There is also an unreported judgment of this Court in S.A. No. 382 of 1883, in which a similar opinion was expressed. With great deference I am unable to agree with the view of the learned Judges who decided those cases. I can see no distinction in principle between a case in which payment has been made to avert a legal process and a case in which payment has been enforced by sale of the property of the claimant for contribution. With great deference I am unable to agree with the view of the learned Judges who decided those cases. I can see no distinction in principle between a case in which payment has been made to avert a legal process and a case in which payment has been enforced by sale of the property of the claimant for contribution. In both cases his claim is based upon the ground that his property has contributed more than what it was liable for, and that the defendant has benefited thereby. That a right to contribution arises in the case of payment by a forced sale appears from the judgment of POLLOCK, C.J. in Rodgers vs. Maw, [1846] 13 M.&W. 444; such a right was recognised by this Court in Bhagirath vs. Naubat Singh, [1879] I.L.R. 2 All. 115, Ibn Husain vs. Ram Dai, [1889] I.L.R. 12. All. 110; Baldeo Sahai vs. Baijnath, [1892] I.L. R., 13 All. 371 and Hariraj Singh vs. Ahmad Uddin, [1897] I.L.R. 19 All. 545 and by the Madras High Court in Rama Bhadachar vs. Srinivasa Ayyangar, [1900] I.L.R. 24 Mad. 85. See also per BHASHYAM AYYANGAR, J., in Raja of Vizianagram vs. Raja Setra-Cherla, [1903] I.L.R. 26 Mad. 686. The first contention of the learned vakil for the respondents cannot in my opinion be sustained. I am also unable to agree with his second contention that a right to contribution does not arise until the whole debt is paid. This question is distinct from the further question whether in the case of mortgage the person entitled to contribution acquires a charge on the property of the contributory. The two questions should not in my judgment be confused, one with the other. There are undoubtedly cases in which a right to contribution arises but not a right to a charge, In the case of a mortgage the party entitled to contribution acquires a charge, as I shall presently show, but this charge arises because the right of contribution exists. Each of the two questions should therefore be considered independently of the other. 4. The principle upon which the doctrine of contribution is founded was thus stated by Lord CHIEF BARON EYRE in the leading case of Bering v. Earl of Winchelsea, [1787] White and Tudor's Equity Cases, 7th Edition, Vol. II., p. 355 at pp. Each of the two questions should therefore be considered independently of the other. 4. The principle upon which the doctrine of contribution is founded was thus stated by Lord CHIEF BARON EYRE in the leading case of Bering v. Earl of Winchelsea, [1787] White and Tudor's Equity Cases, 7th Edition, Vol. II., p. 355 at pp. 537 and 538: “If we take a view of the cases, both in law and equity, we shall find that contribution is bottomed and fixed on general principles of justice and does not spring from contract, though contract may qualify it. In Sir William Herbart's case many cases of contribution are put; and the reason given in the book is that in aquali jure the law requires equality: one shall not bear the burthen in case of the rest; and the law is grounded in great equity.” The principle, which was propounded in a case between co-sureties, applies equally to all other cases of joint liability including a mortgage on several parcels of land. (See Story's Equity Jurisprudence, section 484, Grigsby's 2nd edition page 313). In Fisher on Mortgages (5th edition, p. 643), it is laid down that the right of contribution rests upon the principle that a fund, which is equally liable with another to pay the debt, shall not escape because the creditor has been paid out of that other fund alone. The same rule has been enacted in section 82 of the Transfer of Property Act, 1882, which provides that when several properties are mortgaged to secure one debt, such properties are, in the absence of a contract to the contrary, liable to contribute ratably to the debt secured by the mortgage, It, therefore, follows that where one of the properties has contributed more than its ratable share of the mortgage debt, the owner of such property is entitled to claim contribution from the property which has not discharged its own quota of liability and to be indemnified for the loss sustained by him to the extent by which the owner of the other property has benefited. In determining, therefore, whether a claim for contribution in such a case can be sustained, the test is whether (he payment made by the claimant or the amount realized by the sale of his property exceeds the amount for which that property was ratably liable, and whether the property from the owner of which contribution is claimed has to that extent been relieved of liability and has thus benefited and it is immaterial whether the amount paid has been realized by coercive process, and whether or not it has fully discharged the debt. I am aware of no authority, nor has any been cited to us, for the proposition that a suit for contribution cannot be brought until the whole amount of the debt has been paid. Each case will depend on its own merits, and as I have said above, it must be established in each case that the claimant has been damnified and that his opponent has benefited by being eased to the extent of the amount claimed. The authorities on the point are against the contention of the respondents. The rule on the subject is thus stated in Leak on Contracts (3rd edition, page 59), where several persons are co-debtors for the same debt or liability which as between themselves is payable in several shares, and one is compelled to pay the whole or a part greater than his share, he is entitled to recover from each of the others a contribution, or proportion of the excess beyond his own share.” The rule thus enunciated is not only supported by the rulings to which the learned author refers, but also by the case of Davies vs. Humphreys, [1840] 6 M. and W. 153 at p. 167 in which the contention that the whole of the debt must be paid by the claimant or some one liable, before he can have a right to contribution, was repelled. PARKE B., observed, there is no rule of law which requires the surety to pay the whole debt before he can call for reimbursement.” In Craythorne vs. Swinburne, [1807] 14 Ves., p. 160 at 164, LORD ELDON held as follows:— “It has been long settled that if there are co-sureties by the same instrument, and the creditor calls upon either of them to pay the principal debt or any part of it, that surety has a right in this Court, either upon a principle of equity or upon contract to call upon his co-surety for contribution, and I think that right is properly enough stated as depending rather upon a principle of equity than upon contract.” These were, it is true, cases of cosureties, but in principle there is no distinction between the case of co-sureties and the case of co-mortgagors. In both cases the right of contribution arises out of the same consideration, namely, that one person has paid more than his proportion of the common burden and is entitled to be reimbursed for what he has paid in excess of his proportion. Whether the payment has been obtained from a person who as surety for a debt is personally liable to pay it or from property which was liable as collateral security for the debt, the ground upon which contribution is allowed is the same, The fact that the right in the one case is a personal right and that in the other it is a real right makes no difference. The difference exists only in the remedy open to the party entitled to contribution. In the case of co-sureties the amount of the contribution can be recovered from the person of the co-surety. In the case of co-mortgagors it can be recovered from the property mortgaged by the co-mortgagor. But this is because in the latter case there is a charge on property which does not exist in the former, not because the right to contribution arises out of different considerations. What those considerations are has not been suggested. If it is open to the creditor to proceed against the property of the contributory in the case of co-mortgagors, it is equally open to him to proceed against the person of the contributory in the case of co-sureties. What those considerations are has not been suggested. If it is open to the creditor to proceed against the property of the contributory in the case of co-mortgagors, it is equally open to him to proceed against the person of the contributory in the case of co-sureties. If the right to contribution depends upon the discharge of the whole of the burden, it must so depend as much in the case of co-sureties as in the case of co-mortgagors. The authorities to which I have referred, however show that such considerations cannot prevent the accrual of the right of contribution in the case: of co-sureties. The principle is as I have said above, the same in both cases, namely, that one party has eased the other of a burden which he had to bear—a’ principle which has its foundation in natural equity and general justice, that is to say, in those rules of equity and justice which the Courts in this country are enjoined by the legislature to administer. 5. The case-law on the subject in this country is directly in point, In Bhaginith v. Naubat Singh, [1879] I.L.R. 2 All. 115 the one-third share of Naubat Singh in a certain village was sold by auction in execution of a decree obtained upon two mortgages executed by him and two other persons, in which that and other villages were hypothecated, The amount due upon the decree was Rs. 5,961-10-5, but Rs. 2,600 only was realized by the sale of Naubat Singh's share. As the shares of the other mortgagors had been sold in execution of other decrees and purchased by the appellant Bhagirath, who was the mortgagee, Naubat Singh sued him to have the sale of his share set aside, and to redeem the mortgage of that share upon payment of his proportion of the decretal amount. The lower appellate Court decreed this claim. Upon second appeal to this Court, TURNER and OLDFIELD, JJ., set aside the decree of the Court below, but held that Naubat Singh was entitled to contribution on the ground that the sum realized by the sale of his share of the mortgaged property exceeded the proportionate share of his liability under the mortgages. Upon second appeal to this Court, TURNER and OLDFIELD, JJ., set aside the decree of the Court below, but held that Naubat Singh was entitled to contribution on the ground that the sum realized by the sale of his share of the mortgaged property exceeded the proportionate share of his liability under the mortgages. A decree was accordingly made in his favour for the amount which was found to be due to him, and sale of the other mortgaged village was ordered for the recovery of that amount. This case is a clear authority not only for the proposition that a right of contribution arises even when the whole of the debt has not been discharged, but also for holding that there is a charge for the amount of the contribution. 6. In Ibn Husain vs. Ramdai, [1889] I.L.R. 12 All. III which was the suit for contribution brought by Ibn Hasan, the appellant in this case, and Vilayat Husain against the mortgagor of the present respondents it was held by EDGE, C.J., and BRODHURST, J., that the other villages were liable for contribution. There is no reason for assuming that the learned Judges had not present to their minds the fact that a portion only of the decretal amount had been realized by the sale of Ibn Hasan's villages. Upon the case being remanded to the Court below by those learned Judges that Court dismissed the suit, holding that it was not maintainable inasmuch as the decrees had not been completely satisfied. This decision was manifestly dissented from by TYRRELL, and BLAIR, JJ., who, on the 1st August, 1893, set aside the judgment of the Subordinate Judge and remanded the case for trial on the merits. In Hariraj Singh vs. Ahmad Uddin Khan, [1897] I.L.R. 19 All. 54 a decree for contribution was made by my brother AIKMAN and myself, although only a part of the decretal amount had been realized by the decree-holder. In Hariraj Singh vs. Ahmad Uddin Khan, [1897] I.L.R. 19 All. 54 a decree for contribution was made by my brother AIKMAN and myself, although only a part of the decretal amount had been realized by the decree-holder. In the recent case of Raja of Vizianagram vs. Setrucherla, [1913] I.L.R. 26 Mad, 686 at p. 716 the eminent Judge, Sir BHASHYAM AYYANGAR held that “the party seeking contribution, has a cause of action to enforce a contribution *** as soon as he has made any payment in excess of his share, and he need not wait till he makes the whole payment.” These cases support the conclusion at which I have arrived, and as I have already said, not a single case has been cited to us in which a contrary view has been held. Indeed Mr. Gokul Prasad, the learned vakil for the respondents, admitted his inability to refer to any case which favoured his contention. He relied on two passages in Robbins' Law of Mortgages, Vol. I, page 774 and Jones on Mortgages, Vol. II, p. 49, in which it is stated that where several estates subject to the same mortgage belong to different owners, and one of them “pays off the debt”, he may enforce contribution from the others. In neither of those works is any reference made to the case of part payment of a debt, nor is It laid down that the right of contribution only arises when the entire debt has been discharged. It is true, as the learned vakil argued, that contribution cannot be claimed in every casein which the claimant has paid more than his share of the liability. But as I have said above, each case must depend upon its own circumstances—the test being whether the payment made by the claimant has benefited the party sued. For example, to take the case which I put to the learned vakil at the hearing, if three estates A, B and C, which are of equal value, are mortgaged to secure a debt of Rs. 900, and one of them A, is sold for Rs. 600, and discharges the mortgage to that extent, the owners of the villages B and C are undoubtedly benefited, the liability of each of them being reduced by one-half. 900, and one of them A, is sold for Rs. 600, and discharges the mortgage to that extent, the owners of the villages B and C are undoubtedly benefited, the liability of each of them being reduced by one-half. There appears to be no reason in justice or equity why the owner of A should not have the right to obtain contribution from B and C. I need hardly point out that contribution cannot be claimed from a co-mortgagor whose property equally with the property of the claimant has been sold at the instance of the mortgagee, because it has contributed its proportion of the debt. This was held by my brother AIKMAN and myself in Hariraj Singh vs. Ahmad Uddin Khan, [1897] I.L.R. 19 All. 545 where, referring to the rule laid down in Fisher on Mortgages “that a fund which is equally liable with another to pay a debt, shall not escape because the creditor has been paid out of that other fund alone,” we said: “It therefore follows that such of the mortgaged properties as have been sold for realization of the mortgage money and have thus contributed to the mortgage debt, are not liable to a claim for contribution, and that such a claim can only be advanced by the owners of those villages which have contributed more than their ratable share of the debt and against those portions of the mortgaged property only which have not contributed to the mortgaged debts and have benefited by the sale of the property of the claimants for contribution,” It might perhaps be convenient, in order to avoid multiplicity of suits, to require that the whole debt should be paid before a claim for contribution could be entertained, but as observed by EDGE, C.J., and BLAIR., J, in Laljimal v. Nand Kishore, [1817] I.L.R. 19 All. 332 “convenience is not always a good reason for laying down a proposition of law,” and considerations of convenience and expediency should not be allowed to bar or suspend the enforcement of an equitable right which has already accrued, and to justify a Court in refusing to reimburse a party for the benefit he has conferred on another. 7. 332 “convenience is not always a good reason for laying down a proposition of law,” and considerations of convenience and expediency should not be allowed to bar or suspend the enforcement of an equitable right which has already accrued, and to justify a Court in refusing to reimburse a party for the benefit he has conferred on another. 7. It is said that the appellants will not suffer any injustice, as the relief now claimed could have been obtained in the suits which Raja Sheoraj Singh brought to enforce his mortgages, and that the rights inter se of the co-owners of the mortgaged property could have been adjusted in those suits. As regards this I may observe, in the first place, that on the dates on which Raja Sheoraj Singh obtained his decrees, Ibn Hasan had not acquired any interest in any portion of the mortgaged property. He purchased the villages Basanta and Tanda Manitdaswala on the 20th of April, 1874, that is, several months after the decrees had been passed, the dates of the decrees being the 13th and 14th November, 1873. It was therefore impossible for him to obtain an adjustment in those suits of the right which he now claims. In the next place, no right of contribution could accrue to him, and no question of a charge for contribution could arise until the property owned by him was actually sold in execution of the mortgaged decrees, and it was ascertained that it had contributed to the debt something in excess of its proportionate liability. It was therefore equally impossible for him or for any of the co-owners of the mortgaged property to have the question of contribution adjudicated upon in the mortgage suits. In the third place, it would, I apprehend, be laying down a novel proposition to hold in these provinces that in a mortgagee's suit for sale the respective rights of co-mortgagors or co-owners of the mortgaged property could be adjudicated upon, and regard paid to those rights in the carrying out of the sale. A mortgage being one and indivisible the mortgagee has the right to pursue his remedy against the whole or any part of the mortgaged property, irrespective of the rights inter se of the mortgagors or co-owners of that property. A mortgage being one and indivisible the mortgagee has the right to pursue his remedy against the whole or any part of the mortgaged property, irrespective of the rights inter se of the mortgagors or co-owners of that property. It is only when the integrity of mortgage has been broken up by reason of the mortgagee having acquired the share of a mortgagor, that the question of the respective liability of each of several mortgagors may arise. Where no question of the right of the mortgagee to proceed against any particular portion of the mortgaged property is involved, a Court cannot adjudicate upon the rights and liabilities of the defendants as between themselves. Except when necessary for granting to the plaintiff the relief to which he is entitled, a Court should not adjudicate between co-defendants. Upon this point I may quote the following observations of VIGRAM, V.C. in Cottingham vs. The Earl of Shrewsbury, [1843] 3 Hare, 627 at 638” If a plaintiff cannot get at his right without trying and deciding a case between co-defendants the Court will try and decide that case, and the co-defendants will be bound. But if the relief given to the plaintiff does not require or involve a decision of any case between co-defendants, the co-defendants will not be bound as between each other by any proceeding, which may be necessary only to the decree the plaintiff obtains.” The analogy of the case of successive encumbrances and marshalling seems to me to have no bearing upon the present question. The doctrine of marshalling is resorted to in order to compel a prior mortgagee to proceed in the first instance against a particular portion of the mortgaged property and necessarily involves a question of the mortgagee's right to sell. Similar considerations apply to the case of successive encumbrances. In any case, I fail to see how in the mortgagee's suit for sale any question could be raised and determined as to the right of one of the co-owners of the mortgaged property to claim contribution and a charge for it against another co-owner, such as has been claimed in this suit. In my opinion it is not essential for the accrual of the right of contribution that the whole of the debt has been paid. 8. In my opinion it is not essential for the accrual of the right of contribution that the whole of the debt has been paid. 8. Upon the next question, namely, whether a person entitled to contribution also acquires a charge in the case of a mortgage the provisions of sections 82 and 100 of the Transfer of Property Act cannot, as it seems to me, leave any room for doubt. Section 82 provides that where several properties, whether of one or several owners, are mortgaged to secure one debt, such properties are, in the absence of a contract to the contrary, liable to contribute ratably to the debt secured by the mortgage. It will be noticed that the liability to contribute to the common burden attaches to the properties subject to that burden and not personally to the owners of those properties. This is further manifest from the fact that “where the equity of redemption is transferred by way of sale, no personal liability is incurred by the purchaser except when he enters into a covenant to pay. “(Ghose on Mortgages, 3rd edition, page 444.) The liability for the mortgage debt rests in such a case on the property purchased by him. It follows that when the owner of one of the several properties liable for the debt pays it or when it is realized by sale of one of such properties, it is the remaining properties from which reimbursement is to be obtained. Consequently by the operation of section 82 those remaining properties are made security for the payment of the amount of the reimbursement and a charge is created on them as defined in section IOO. I cannot agree with the learned pleader for the respondent that a charge cannot be obtained otherwise than under section 95. That section provides that “where one of several mortgagors redeems the mortgaged property and obtains possession thereof, he has a charge on the share of each of the other co-mortgagors in the property for his proportion of the expenses properly incurred in so redeeming and obtaining possession. “As the section is worded, it provides for only one class of cases in which a charge is acquired namely, the case of a co-mortgagor who has obtained possession after redeeming the mortgage. In my judgment the section is not exhaustive. “As the section is worded, it provides for only one class of cases in which a charge is acquired namely, the case of a co-mortgagor who has obtained possession after redeeming the mortgage. In my judgment the section is not exhaustive. Surely a mortgagor, who redeems a mortgage other than a usufructuary mortgage and does not obtain possession upon redemptions, is also entitled to a charge, but this charge is in my opinion acquired not under section 95, but under the provisions of sections 82 and 100. From the fact that the Transfer of Property Act provides specifically for one class of cases in which a charge is obtained, it does not follow that the legislature intended that a charge cannot be acquired in any other case. Section 95 appears to me what Maxwell in his Interpretation of Statutes calls a “superfluous provision” enacted by the legislature “under the influence of excessive caution.” It has been held in numerous cases that a person claiming contribution in the case of a mortgage debt is entitled to a charge on the property liable for contribution. The course of rulings on the subject in this and other Courts has hitherto been as far as I have been able to ascertain, uniform. I may refer to Bhagirath vs. Naubat Singh, [1879] I.L.R. 2 All. 115; Pancham Singh vs. Alt Ahmad, [1881] I.L.R. 4 All. 58; Ibn Husain vs. Ramdai, [1890] I.L.R. 12 All. 110; Baldeo Sahai vs. Baijnath, [1891] I.L.R. 13 All. 371; Hart Raj Singh vs. Ahmad Uddin Khan, [1897] I.L.R. 19 All. 545; Shanto Chander Mukerji vs. Nainsukh, [1901] I.L. R. 23 All. 355; Danappa vs. Yamnappa, [1902] I.L.R. 26 Bom. 379 and the other case collected on page 640 of Agarwala's Mortgage Suits. See also Ghose on Mortgages, 3rd edition, pages 444 and 446, and Story's Equity Jurisprudence, Grigsby's edition, page 313. The learned vakil for the respondent referred to the Full Bench ruling of this Court in Seth Chitor Mal vs. Shib Lal, [1892] I.L.R. 14, All. 273 and that of the Calcutta High Court in Kinuram Das vs. Mozafler Hosain Shaha, [1887] I.L.R. 14 Cal. 809 and the recent decision of the Bombay High Court in Shivrao Narayan vs. Pundlik Bhaire, [1902] I.L.R. 26 Bom. 347 as authorities in support of his contention. I am, however of opinion that those cases have no bearing upon the question before us. 809 and the recent decision of the Bombay High Court in Shivrao Narayan vs. Pundlik Bhaire, [1902] I.L.R. 26 Bom. 347 as authorities in support of his contention. I am, however of opinion that those cases have no bearing upon the question before us. What was held in those cases was that a co-sharer who paid the Government revenue due upon an estate and thus saved the estate, did not by reasons of such payment acquire a charge on the share of his defaulting co-sharer. That is not the case here. Those rulings had no reference to the provisions of the Transfer of Property Act. In my judgment, sections 82 and 100 of that Act confer upon a co-mortgagor or co-owner entitled to contribution a charge upon the property liable to contribute, and this is irrespective of the principle of salvage, and which the Courts in Ireland apply also to cases other than of maritime salvage, and which was recognized by their Lordships of the Privy Council in Dakhina Mohan Roy vs. Saroda Mohan Roy, [1894] I.L.R. 21 Cal. 142. I would, for the above reasons, repel the third contention put forward on behalf of the respondents. 9. As for the fourth and last contention it is clear that if the appellants are entitled to contribution and a charge for it, they acquired the charge on the date on which their villages Basanta and Tanda Mahidaswala were sold by auction in execution of Raja Sheoraj Singh's decree, that is on the 20th June, 1874, or at least on the date on which the auction sale was confirmed. Under section 100 of the Transfer of Property Act a charge should be dealt with like a mortgage as far as may be, and the provisions of section 82 and other sections apply to the holder of a charge. As the mortgage in favour of the respondents was made subsequently to the dates mentioned above, the appellants would be entitled to priority over the respondents. 10. In this case the Court below has not determined as between the parties to this suit, whether the villages purchased by Ibn Hasan and subsequently sold in execution of Raja Sheoraj Singh's decree, contributed more than their ratable share of liability, and whether the village Mansa mortgaged to the respondents benefited by the payments made with the sale proceeds of Ibn Hasan's villages. It has also not found for what amount the appellants would be entitled to a prior charge on Mansa in the event of their being held to have a right of contribution. I would refer these questions to the Court below under section 566 of the Code of Civil Procedure and authorize that Court to take additional evidence, if necessary. 11. I regret that the conclusions at which I have arrived have no as I understand, the approval and assent of the learned Chief Justice and my brother BURKITT. STANLEY, J. A question of considerable difficulty is involved in this appeal. One Muhammad Kadir Ali Khan was formerly the owner of 31 villages, including mauza Basanta, Tanda and Mansa. He executed two deeds of simple mortgage of all these villages, dated respectively, the 12th of December, 1867, and the 28th of April, 1873, in favour of Raja Sheoraj Singh. In execution of a money decree obtained against Muhammad Kadir Ali Khan, the equity of redemption in the two villages of Basanta and Tanda was sold and purchased by Ibn Hasan on the 28th of April, 1874, and the sale was duly confirmed and carried out. Raja Sheoraj Singh instituted two suits on foot of his mortgages and obtained decrees for sale, dated respectively the 13th and 14th of November 1873, and on the 20th of June, 1874, the villages of Basanta and Tanda were sold and the sales were confirmed on the 5th of August, 1874. Basanta realized a sum of Rs. 9,500 and Tanda Rs. 16,000, making a total of Rs. 25,500. This amount was applied in part payment of the amount due under the mortgage decrees, which was then Rs. 62,656, together with costs and interest. A large balance still remained due to Raja Sheoraj in respect of his mortgage decree. How this balance was satisfied, if it has been satisfied we have no information. We are entirely in the dark as regards the ultimate proceeding taken upon these decrees. 12. On the 26th of May, 1878, Ram Chandar, the father of the defendant, Dhanpat Rai, who was then the owner of the equity of redemption in the property of Kadir Ali Khan, which then remained unsold, including mauza Mansa, executed a mortgage of that property in favour of Shiam Saran and Kesho Saran, the predecessors in title of the plaintiffs. 13. 13. Ibn Hasan, whose villages of Basanta and Tanda had been sold, as I have stated, and the proceeds applied in part satisfaction of the decrees of Raja Sheoraj Singh, on the 21st of June, 1886, that is almost 12 years after the sale of these villages, brought a suit against the owners of the other 29 villages included in the mortgages in favour of Raja Sheoraj Singh, which had by the decrees of the 13th and 14th of November, 1873, been directed to be sold, claiming contribution from them in respect of the sum of Rs. 25,500 which had been realized by the sale of mauzas Basanta and Tanda. His allegation was that the sum of Rs. 25,500 was in excess of the rateable proportion of the mortgage debts of Raja Sheoraj Singh, to which these villages were liable, and that therefore he was entitled to contribution to the extent of such excess from the owners of the other villages. The present plaintiffs were not impleaded in that suit, and therefore are not bound by the decree which was passed in it. On the 31st of March, 1894, a decree was passed, declaring the plaintiff entitled to a sum of Rs. 3,128 odd as a charge on the other villages, and of this sum it was found that Rs. 256-9-4 was rateably chargeable upon mauza Mansa. 14. The present suit was brought by the plaintiffs on the 2nd of August, 1899, to raise the amount due on foot of their mortgage of the 26th of May, 1878, by sale, if necessary, of, amongst others, the shares in mauza Mansa which were hypothecated by that mortgage. 15. The defence of the defendants is that they held a prior charge for contribution over mauza Mansa, and that the plaintiffs are not entitled to bring that village to sale without paying such contribution. The amount now claimed for contribution is Rs. 500, and if the charge is maintainable, there is no dispute as to the accuracy of this amount. 16. The Court below decided against the contention of the defendants and passed a decree in favour of the plaintiffs. Hence the present appeal. 17. The amount now claimed for contribution is Rs. 500, and if the charge is maintainable, there is no dispute as to the accuracy of this amount. 16. The Court below decided against the contention of the defendants and passed a decree in favour of the plaintiffs. Hence the present appeal. 17. The defendants-appellants' case is that as soon as the villages of Basanta and Tanda were sold, that is, on the 20th of June, 1874, they became entitled to a charge upon the other villages comprised in the mortgage to the extent of the excess which was realized by the sale of these villages beyond the amount to which they were ratably liable to contribute to the discharge of the mortgage debt. Their contention is based upon the provisions of section 82 of the Transfer of Property Act, which provides that where several properties are mortgaged to secure one debt, such properties are? in the absence of a contract to the contrary, liable to contribute ratably to the debt secured by the mortgage, and reliance is also placed upon section 100 of the same Act. 18. On behalf of the respondents it has been contended: (1) that the defendants-appellants never had a right of contribution at all, inasmuch as they did not pay off the entire mortgage debt. (2) admitting that they had a right of contribution, the amount recoverable in respect of such contribution, is not a charge against the property which the plaintiffs-respondents seek to sell under their mortgage. (3) assuming that such a charge does exist, it would not take priority over the mortgage of the plaintiffs-respondents under the circumstances of this case. 19. The report for the case in which Ibn Hasan sued the owners of the other villages for contribution is to be found in the Indian Law Reports, 12 All., no. From it, it would appear that the only pleas raised by the defendants to that suit were, that the suit was barred by limitation and also was bad for misjoinder of parties. The right of the plaintiffs to obtain contribution provided that their suit had been properly framed and brought within time, does not appear to have been disputed. In the course of their judgment, EDGE, C.J. and BRODHURST, J., no doubt, do state that the villages of the defendants were liable for contribution. The right of the plaintiffs to obtain contribution provided that their suit had been properly framed and brought within time, does not appear to have been disputed. In the course of their judgment, EDGE, C.J. and BRODHURST, J., no doubt, do state that the villages of the defendants were liable for contribution. They say, in our opinion the other villages were liable for contribution in this case, and liable so as to bring this case within article 132 (i.e., article 132 of Schedule II to the Limitation Act). The case of Ram Dutt Singh vs. Horakh Narain Singh, [1880] I.L.R. 6 Cal. 549 is an authority to show that in such a case as this, article 132 would apply. The case of Pancham Singh vs. Alt Ahmad, [1881] I.L.R. 4 All. 58 goes to show that the owners of these two villages would be entitled to charge on the other villages in respect of the several amounts to be contributed.” The question with which we have to deal, was clearly not raised or discussed in argument. In the case of Pancham Singh v. Alt Ahmad, which was relied upon in this judgment the party who claimed contribution, had paid off the whole amount of a mortgage debt with interest, and what the learned Judges (STRAIGHT and DUTHOIT) decided, was that by payment of the entire mortgage debt, the plaintiff became entitled to contribution from the defendant, and further having acquired the rights of the mortgagee, was competent to assert a lien on the share of the defendant for the proportion of the debt attributable to that share. They say, “it appears to us that when the plaintiff-respondent discharged the whole amount of the mortgage debt, he not only became entitled to a contribution of half the sum from the defendant appellant but having acquired the rights of the mortgagee, it was competent for him to assert a lien on the 2 biswas share of the defendant-appellant for the proportion borne by it to the original pledge.” This is not an authority for the proposition that the owner of a share in mortgaged property whose share has been sold in execution of a decree for sale upon the mortgage, and the proceeds of sale applied in part satisfaction of the mortgage debt, has a right of contribution against the owner of the equity of redemption in other shares. The fact that the mortgage had been only partly discharged, was apparently not present to the minds of the learned Judges who decided the casein 12 Allahabad, page 100, and at any rate was not adverted to by them in their Judgment. 20. The right claimed by the defendants-appellants in this case is said to be based upon well-known principle which is embodied in the provisions of section 82 of the Transfer of Property Act. This section lays down no new principle but is merely an embodiment of the well recognised principle that property, which is equally liable with other property to pay debt, shall not escape, because the creditor has been paid out of other property alone; that parties, who were equally bound with another to satisfy a debt and who are relieved by that other from the burden of the debt, should contribute ratably towards the benefit obtained by all. In either case the debt has been satisfied by him, and it appears in such a case to be consistent with justice, equity and good conscience, that his co-owners should indemnify him to the extent to which they have been benefited, that is, to the extent to which the payment made by him or the amount realized from his property exceeded his ratable proportion of the debt. Other considerations, however, appear to me to arise in a case where the debt has not been fully satisfied either by payment or forced sale as in the present case. The defendants-appellants, if they had paid off the debt in full, and saved the entire mortgaged property from sale, would undoubtedly have, I think, acquired the right of contribution which is claimed by them. In that case upon such payment they would have been entitled to obtain from the mortgagees all documents in their possession or power relating to the mortgaged property, including the mortgage deed, and would have stood in the position, or in a position analogous to that, of one of several mortgagors who has paid off the mortgage debt, and therefore is in position to claim the benefit of the provisions of section 95 of the Transfer of Property Act. That section provides that “where one of several mortgagors redeems the mortgaged property and obtains possession thereof, he has a charge on the share of each of the other co-mortgagors in the property for his proportion of the expenses properly incurred in obtaining possession.” It is by no means clear whether this section is one which applies to mortgages generally or only to usufructuary mortgages. The words and obtains possession thereof,” it is said, indicate that the section is limited to usufructuary mortgages. I am disposed, however, to think that the legislature intended that it should have a wider application and that it applies to all mortgages, whether simple or usufructuary; that the words “and obtains possession thereof,” should be qualified by the introduction of some such words as if the mortgagee be in possession. If the legislature had intended to confine the operation of the section to usufructuary mortgages, it seems to me that it would have made this clear by the addition to the section of a few words, such as “In the case of an usufructuary mortgage.” 21. Seeing that all the sections preceding section 95 from section 81 deal with mortgages generally, and that there is no apparent reason for confining section 95 to any particular class of mortgage, it appears to me necessary and reasonable to interpolate in this section after the words “and obtains possession thereof,” some such words,. as I have mentioned, in order to carry out the manifest intention of the legislature. It will be observed that in some of the sections immediately preceding section 95, there are provisions for putting the plaintiff in a redemption suit into possession of the mortgaged property, if necessary. For example, in section 92 which prescribes the nature of the formal decree in a redemption suit, the Court is directed to if necessary, put the plaintiff in possession of the mortgaged property, “and in the succeeding section it is provided in case of redemption that” the plaintiff shall, if necessary, be put in possession of the mortgaged property, and latter on, in default of payment, the Court is directed to deliver, if necessary, possession of the property to the defendant.” In the recent case of Bhagwan Das vs. Musammat Hardei, [Since reported. (1904) A.W.N. 3,—ED] as yet unreported, my brother BURKITT and I held that this was the true meaning of the section. (1904) A.W.N. 3,—ED] as yet unreported, my brother BURKITT and I held that this was the true meaning of the section. If this be the correct view of section 95, this section seems to indicate that the right to a charge on the share of co-mortgagors for contribution, only arises where the mortgaged property has been redeemed. It may, no doubt, be contended that the Act was not intended to be and is not exhaustive in this respect, and that the co-mortgagor, who satisfies portion only of a mortgage debt, is entitled to a charge on the shares of his co-mortgagors, provided that the amount paid by him is in excess of his ratable proportion of the debt. We must consider then whether independently of section 95 any such equity exists. The question is not whether the burden of a mortgage should be equitably distributed over the mortgaged properties, for that is admitted but is rather in what way equitable distribution of the debt can be secured. In the case of co-sureties it is well settled that if the creditor call upon one of them to pay the principal debt or any part of it, that surety has a right upon principles of equity to call upon his co-sureties for contribution. LORD ELDON in the case of Ex parte Gifford, [1802] 6 Ves, 865. at 808, S.C., 6 R.R., 853 states that “sureties stand with regard to each other in a relation which gives rise to this right, among others, that if one pays more than his proportion, there shall be a contribution for a proportion of the excess beyond the proportion which in all events he is to pay.” In Davies v. Humphreys, [1843] 6 M. and W., 153, at 169, PARKE, B., says, It might indeed be more convenient to require that the whole amount should be settled before the sureties be permitted to call upon each other in order to prevent the multiplicity of suits; indeed, convenience seems to require that Courts of Equity alone should deal with the subject but the right of action having been once established it seems clear that when a surety has paid more than his share, every such payment ought to be reimbursed by those who have not paid theirs in order to place him on the same footing. “The defendants-appellants contend that the relation of cosureties is analogous to that of co-mortgagors, and the principle which governs that relation has been propounded as a justification for the notion that a person who has purchased part of the equity of redemption in mortgaged property and whose portion has been sold in execution of a decree at the suit of the mortgagee, and the proceeds of sale applied in part satisfaction merely of the mortgage-debt, is entitled to a charge on the property of the owners of the ‘equity of redemption in other portions of the mortgaged property for the excess which he has paid over and above his rateable proportion. It seems to me that the analogy between co-sureties and co-mortgagors is a false one. In the case of co-sureties, no complication can possibly arise from the enforcement of the right of contribution. In the case of immoveable property, the matter is very different as WILSON J., pointed out in the case of Kinu Ram Das v. Muzaffar Husain Shah, [1877] I.L.R. 4 Cal., 809 in which it was held by WILSON PRINSEP and TOTTENHAM, JJ., MITTER and NORRIS, JJ., dissenting, that there is no general rule of equity to the effect that whoever having an interest in an estate, makes a payment in order to save the estate, obtains a charge on the estate, and therefore, in the absence of a statutory enactment, a co-sharer, who has paid the whole revenue and thus saved the estate, does not, by reason of such payment acquire a charge on the share of his defaulting co-sharer. In the course of his judgment in that case, WILSON, J., observed: “In the tangle of interests which an estate in this country presents zamindari rights, tenures and under-tenures, without limit, every one; of them commonly held in co-ownership and every share of; every interest perhaps subject to mortgages, I cannot pretend to foresee what the consequences may be of broadly laying down such a doctrine as we are asked to do. I am disposed to think it a safer course to leave the legislature to treat the matter as it may think fit, dealing, as heretofore, with each class of persons as occasion requires, and conferring such liens and subject to such restrictions as may be deemed desirable.” These are weighty words and must not be lost sight of when an analogy is set up between mere personal demands and charges upon land. The question of contribution of Government revenue paid by a co-sharer, was lately considered in the Madras High Court in the case of Raja of Vizianagram v. Raja Setrucherla Somaskhararaz, [1903] I.L.R. 26 Mad, 686. It was there held that where one of two or more co-sharers owing an estate subject to the payment of revenue to Government, pays the whole revenue in order to save and so does save the estate from liability to be sold by Government for realizing the arrears of revenue, he is by operation of law entitled to a charge upon the share of each of his co-sharers for the realization of the latter's share of the revenue as between the co-sharers. It is to be observed in this case that all the arrears of Government revenue were paid in order to save the estate from liability to be sold. The co-sharer became in fact a salvagor of the property for himself as also for his co-sharers. The authorities in Irish Courts in regard to salvage payments were cited with approval in this case, notwithstanding the rejection of the principle of salvage as of general application by Judges of eminence in England. In the case of Falcke v. Scottish Imperial Insurance Company, (1886) L.R. 34 C.D., 234 at page 254, FRY, L.J., in reference to the decisions of the Irish Courts in regard to salvage payments, observes as follows: “We have heard a great deal on both sides of what has been called the doctrine of salvage. I, like VICE-CHANCELLOR KINDERSLEY. exceedingly doubt whether that word can, with any propriety, be applied to cases of this description (payments of premiums due on a policy of Assurance). With regard to salvage in the case of ships and maritime perils we know its meaning. I, like VICE-CHANCELLOR KINDERSLEY. exceedingly doubt whether that word can, with any propriety, be applied to cases of this description (payments of premiums due on a policy of Assurance). With regard to salvage in the case of ships and maritime perils we know its meaning. It appears that the expression salvage moneys, as we are informed by one of the learned counsel for the appellant, and I dare say he is quite right, first occurs in the report of the case In re Tharp, (1852) 2 Sm. and G. 578 N. which was before Lord ST. LEONARDS in 1852, where he seems to have used the expression as one familiar to the Irish Courts in certain cases.” He then adds, “I certainly wish that the expression had remained on the other side of the Channel where it seems to have arisen.” 22. It is unnecessary for us to consider the propriety of the decisions of the Irish Courts, but I would observe that I fail to see that there is anything objectionable in the use of the words “salvage” and “salvage moneys” in this connection. Lord MACNAGHTEN, in delivering the judgment of their Lordships of the Privy Council in Dakhina Mohan Roy v. Saroda Mohan Roy, (1893) I.L.R. 21 Cal., 142, made use of the expression “salvage” in connection with the claim of a party to be recouped Government revenue which he had paid while temporarily holding an estate under a decree afterwards reversed. “The claim,” he said “is in the nature of salvage.” In the case which is before us we have nothing to do with salvage, for the appellants did not save the mortgaged property for themselves or anybody else. They allowed their own portion of it to be sold and did not relieve five property of their co-owners from liability to sale. 23. The proposition of law advanced on the part of the appellants is that as soon as money was realized by sale of their property in excess of the ratable proportion to which that property was liable, then, according to the provisions of sections 82 and 100 of the Transfer of Property Act, a charge was created by operation of law in their favour upon the other properties comprised in the mortgage for the amount of such excess. A similar question was considered in an unreported case in this High Court—Ahmad-ud-din Khan v. Banke Rat, S.A. No. 382 of 1883, decided on the 31th July 1883. The facts of that case were as follows:— One Musammat Umrao Begam had mortgaged two villages, namely, Yar Muhammadpur Pirthi and Dab Kheri, by a bond, dated the 5th of May, 1874, in favour of one Sedh Mal, who, on the 17th of May, 1878, obtained a decree for sale of the mortgaged property. Subsequently, on the 20th of June, 1878, before the decree of Sedh Mal had been satisfied, 20 biswas of mauza Dab Kheri were sold by auction in execution of a simple money decree obtained against Umrao Begam and were purchased by Abu Barkat, the predecessor-in-title of the plaintiffs. Afterwards the 20 biswas of Dab Kheri, which had been so purchased, were sold in execution of Sedh Mal's decree for a sum of Rs. 5,950, and 5 biswas of the other village were likewise sold for Rs. 1,035, and the entire of Sedh Mal's decree was thus satisfied. Fifteen biswas of Yar Muhammadpur Pirthi remained unsold. Afterwards, on the 20th of March, 1880, in execution of an hypothecation decree in favour of Raja Sheoraj Singh obtained against Musammat Umrao Begam, the remaining 15 biswas of Yar Muhammadpur Pirthi were sold by auction, and were purchased by the defendants. On the 13th January, 1882, the plaintiffs, who had bought the 20 biswas of Dab Kheri from Abu Barkat, sued the defendants, the purchasers of the 15 biswas of Yar Muhammadpur Pirthi, for recovery by the sale of that property of the proportionate share of the mortgage debt due to Sedh Mal which had been realized by the sale of the plaintiff's property in excess of the amount for which the plaintiff's property had been ratably liable. The suit was dismissed in the court of first instance and the lower appellate court, whereupon a second appeal was preferred to the High Court and came before OLDFIELD and BRODHURST., JJ., who dismissed it, observing that the plaintiff “bought mauza Dab Kheri subject to the debts due on the mortgages respectively, in favour of Sedh Mal and Raja Sheoraj Singh. Dab Kheri was put up to sale and sold in execution of the former's mortgage, but the plaintiff permitted the sale to take place and did not satisfy the mortgage debt; he thus contributed nothing to its satisfaction so as to give him any claim for contribution.” 24. This question was lately considered in the Madras High Court in the case of Sesha Ayyar vs. Krishna Ayyangar, [1900] I.L.R. 24 Mad. 96. In that case, certain land was mortgaged to one Rangayya Goundan, and subsequently a portion of that land was mortgaged with other land to the plaintiffs. Rangayya obtained a decree on his mortgage for sale of the mortgaged property, and in execution of that decree some of the property, which was also included in the later mortgage of the plaintiffs, was sold, and to that extent the plaintiff's security-was diminished. Rangayya's decree was satisfied out of the proceeds of this sale without the necessity for the sale of the remaining land comprised in his security. ‘This remaining land was purchased by some of the defendants. The plaintiffs instituted a suit on their mortgage and claimed not only as against their mortgagors and the property comprised in their security, but also on the principle of contrib-tion sought to charge any balance which might still remain due as against the remaining land which had been purchased by some of the defendants. The contention on behalf of the plaintiffs was that all the properties in Rangayya's mortgage were bound to contribute ratably towards the mortgage debt, and that inasmuch as the sale of the portion which had been mortgaged to the plaintiffs realised enough to pay Rangayya's debt, the other properties were not sold and so were benefited by the sale and bound to contribute ratably towards plaintiffs mortgage. It was held that the plaintiffs were not entitled to enforce contribution” against the defendants. In the course of their judgment, SHEPHARD and DAVIES, JJ., observed, “If the plaintiffs, instead of taking a mortgage on the 24th of April, 1889, had bought the property then mortgaged to them and had, as purchasers, been included in Rangayya Goundan's suit and had allowed that property to be sold under his decree, what possible right could they have had to claim compensation at the expense of persons interested in other property included in Rangayya Goundan's mortgage? Ex-hypothesi, Rangayya Goundan's claim has been satisfied, and nothing has been done to keep his lien alive for the benefit of the plaintiffs. The first paragraph (i.e., of section 82 of the Transfer of Property Act) does not provide for the keeping alive of the lien after the mortgage debt has been paid, for it merely declares the manner in which the debt shall be borne by the several properties. It would come into effect when the administration of the estate of the mortgagor was under consideration, and may be taken to recognize a lien possessed by the person who, being interested in one of the mortgaged properties, pays off the debt, and so acquires a right of contribution; but we do not think that the section gives any further right. In the present case the plaintiffs, who certainly cannot be in a better position than they would be if they had simply bought part of the mortgaged property subsequently sold under Rangayya Goundan's decree, had their opportunity, and they might, by paying off the debt and saving the property from sale, have acquired a right of contribution, secured by a lien on the other property. They would then have stood in a position analogous to that of one of several mortgagors who has redeemed the whole property and claims to take advantage of section 95” of the Act. But the plaintiffs did nothing and therefore no right of contribution arose, and the other property stood free from any lien’.” Later on they observe, “In our opinion, section 82 does not justify the notion that a man who has bought a property which at one time was with other property subject to a mortgage may, after the mortgage, debt has passed into a decree, and after the decree has been satisfied by the sale of that other property, be held responsible for part of the mortgage debt, and therefore the suit as against the defendants interested in property Y was rightly dismissed.” 25. The law in regard to contribution is exhaustively dealt with in the judgment of BHASHYAM AYYANGAR, J., in the case of the Raja of Vizianagram v. Raja Setrucherla Somaskhararaz, [1903] I.L.R. 29 Mad. 686 to which I have already, referred. The law in regard to contribution is exhaustively dealt with in the judgment of BHASHYAM AYYANGAR, J., in the case of the Raja of Vizianagram v. Raja Setrucherla Somaskhararaz, [1903] I.L.R. 29 Mad. 686 to which I have already, referred. That case had to do with the payment of Government revenue, and in it, as I have pointed out, the entire revenue was paid and the property preserved for the different owners, but in the course of a very exhaustive judgment delivered on the first hearing before the question was referred to a Full Bench, BHASHYAM AYYANGAR, J., expressed the view that in order to mantain a suit for contribution, it is not necessary that the entire debt should be paid off but that a sharer may have contribution in respect of any payment made in excess of his share even, though the amount paid does not satisfy the entire debt. He observes that “there is no authority under general law for the position that a suit for contribution by a sharer against his co-sharer can only be brought if and when he has paid the whole of the revenue due to Government upon the estate, and it is extremely unlikely that the Legislature would provide limitation for a suit unknown to the law. For these reasons I am strongly inclined to depart from the strictly literal and grammatical interpretation of article 99 (i.e., article 99 of Schedule II of the Limitation Act) and read it as if between the words “has paid” and “the whole amount” in the two places in which they occur, the words “on account of” were inserted, and thus avoid the repugnance and absurdity that would otherwise result. ”This article 99, which is here referred to, it will be remembered, provides the period of limitation for a suit for contribution by a party who has paid the whole amount due under a joint decree or by a sharer in a joint estate who has paid the whole amount of revenue due from himself and his co-sharers.” The learned Judge found it, necessary to modify the clear and express language of the article so as to avoid what he describes as the repugnance and absurdity “which would otherwise result. It seems to me very questionable whether the learned Judge has not taken too great liberty of interpolation with the article in question. It seems to me very questionable whether the learned Judge has not taken too great liberty of interpolation with the article in question. It prescribes in clear terms the period of limitation for a suit for contribution by a party who has paid the whole amount due under a joint decree or the whole amount of revenue. The view conflicts with that of the Bench of the same High Court which decided the case of Pattabhiramayya Naidu v. Ram Agya Naidu, [1896] I.L.R. 20 Mad. 23. In their judgment in that case, Sir ARTHUR COLLINS, C.J., and BENSON, J, expressed the view that article 99 cannot apply to a case where not the whole but only a part of the money due under a joint decree was realised from the plaintiffs.” 26. Let us see where the doctrine that the owner of the equity of redemption in part of mortgage property paying part of the mortgage debt can claim a charge against the owners of other portions of that property for any excess payment over and above his ratable proportion, may lead us. Let me take an illustration. Two properties, A and B, of the respective values of, say, Rs. 8,000 and Rs. 2,000, are mortgaged by the owner to secure Rs. 9,000. Subsequently, the owner sells his equity of redemption in property A to X, and property B to Y, respectively. The mortgagee institutes a suit for the recovery of his mortgage debt by sale of the mortgaged property, obtains a decree, and in execution of that decree the properties are put up for sale in two lots, and property A is sold for a sum of Rs. 7,500, while property B is withdrawn from sale for want of bidders, but is afterwards again put up and sold for Rs. 1,500. The proportions of the debt attributable to each property calculated in accordance with the provisions of section 82 of the Transfer of Property Act, would be Rs. 6,750, and Rs. 2,250, respectively. If the proposition contended for on behalf of the appellants is sound, X, who was prior to the sale, the owner of property A, acquired by operation of law upon the sale of that property a charge upon property B for Rs. 750, i.e., the difference between Rs. 7,500, the sum realized by the sale of property A, and Rs. If the proposition contended for on behalf of the appellants is sound, X, who was prior to the sale, the owner of property A, acquired by operation of law upon the sale of that property a charge upon property B for Rs. 750, i.e., the difference between Rs. 7,500, the sum realized by the sale of property A, and Rs. 6,750, the ratable proportion for which property A was liable. Would the purchaser of property B-be obliged to pay this amount, Rs. 750, in addition to his purchased money? This would be manifestly unjust. But what becomes of the charge if he is not liable to pay it? It is contended that it springs into existence the moment that a sum is realised out of one property in excess of its ratable proportion of the debt, but this manifestly cannot be so in the case of the illustration which I have taken. Let me take another illustration. Under similar circumstances to those I have stated above, property A is sold and realises Rs. 8,000, and a charge is according to the argument for the appellants, forthwith acquired by the former owner of property A upon property B, for the excess realised over and above the ratable proportion of the mortgage debt attributable to property A, namely, Rs. 1,250. Property B, having subsequently become depreciated in value for some cause or other, when sold by the Court, realizes Rs. 1,000 only. In this case also it would be manifestly unjust to hold the purchaser of property B liable to a charge in respect of the excess payment made by property A. It seems to me manifest that no such charge, as is endeavoured to be set up here, can arise where the property is the subject-matter of a pending suit unless it be under a decree or order made in the suit. The rule of lis pendens continues until the decree is executed, and meantime no right in the property, the subject-matter of the suit, can be acquired, which will prejudice or affect a purchaser under the decree of the Court. The rule of lis pendens continues until the decree is executed, and meantime no right in the property, the subject-matter of the suit, can be acquired, which will prejudice or affect a purchaser under the decree of the Court. But it may be said that if a mortgage suit is terminated otherwise than by a sale under the decree of the Court, as for example, by payment by owner of part of the “equity of redemption of the balance of the mortgage debt left unsatisfied by the sale under the decree of the Court of other portions of the mortgaged property, the rule of lis pendens would not apply; and that in such a case a former owner of the portion of the property which had been so sold and had realized more than its ratable proportion of the mortgaged debt, acquired a charge upon the unsold portions. This would make the creation of the charge dependent upon future events, and is, in my opinion, a wholly untenable proposition. The acceptance of the proposition contended for by the appellants would in my opinion, lead to an entanglement of the respective rights of co-owners which it would be difficult to exaggerate. But it has been urged that justice, equity and good conscience demand that the appellant should have a charge on the property of the co-owners in respect of the excess payment made by them in discharge of the common debt. This argument reminds me of an apposite observation made by my learned predecessor, Sir JOHN EDGE, in regard to these words—justice, equity and good conscience. “Justice equity and good conscience.” He said” 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 recognized by authority.” Seth Chitor Mal v. Shib Lal, [1892] I.L.R. 14 All. 299. 299. It is well to bear these words in mind when an analogy is set up as existing between the case of co-sureties and the case of co-mortgagors and it is contended that as in the case of co-sureties if one pays more than his proportion of the debt, he shall have a right of contribution for the excess beyond the proportion for which he was ratably liable, so in the case of co-mortgagors, a co-mortgagor who pays off more than his share of the common debt is entitled, though the debt has not been fully discharged, to maintain a suit for contribution against his co-mortgagors. It seems to me that the analogy is a false one. Co-sureties stand on a very different footing from co-mortgagors. In the one case the right of contribution is a personal right; in the other the right claimed is one in tern. In the two cases very different considerations arise. It seems to me moreover, that injustice will not necessarily be done by refusing to recognize the right to a charge, such as the appellants claim. If an owner of part of property which is subject, along with other property to a mortgage is impleaded along with the owners of the other property by the mortgagee in a suit to enforce payment of the mortgage debt by sale of the mortgaged property, there is nothing, so far as I can see, to prevent the adjustment in such a suit of the equitable rights of the several co-owners, without the necessity of bringing an independent suit for that purpose. If the part owners of the equity of redemption in such a suit claim that their respective properties shall only be made primarily liable to a ratable proportion of the common debt, I see no difficulty in having the rights of the co-owners in that suit adjusted inter se. It may be objected that the form of decree prescribed by section 88 of the Transfer of Property Act does not admit of this adjustment, but, I do not see that there would be any real substance in such an objection. For example, in a suit for sale by a first encumbrance, where there are successive encumbrances, puisne encumbrances may surely in that suit properly claim that their mortgage debts shall be satisfied out of the surplus proceeds of sale, if any. For example, in a suit for sale by a first encumbrance, where there are successive encumbrances, puisne encumbrances may surely in that suit properly claim that their mortgage debts shall be satisfied out of the surplus proceeds of sale, if any. In the case of Platt v. Mendel, [1882] L.R. 27 Ch., D., 246 at 248 which was a suit by a first mortgagee for foreclosure in which subsequent encumbrances as well as the mortgagors were impleaded, it was held that where the defendants put in a defence or appeared at the bar and proved or offered to prove their encumbrances, and there is no question of priority between them, the Court would at the request of the puisne encumbrances, limit successive period for redemption. CHITTY, J., in the course of his judgment, observed, “If however, the defendants in a foreclosure action have put in a defence or appeared at the Bar and have proved their encumbrances, and there is no question of priority between them, it does appear that the course of the Court has been to make a judgment allowing successive periods for redemption which, when examined in principle will be found to be not only a judgment in favour of the plaintiff, but a judgment as between the co-defendants.” And again, later on, he says. “Take the simple case of first mortgagee plaintiff, second mortgagee defendant, and their mortgagor also defendant; it appears to me that if it is desired that there should be a decree or judgment (to use the modern term) as between the co-defendants, that judgment can only be obtained on the request of the second mortgagee, and he can make that request either when he puts in a defence or upon appearing at the Bar and proving his deed or offering to prove it, In that event he would have according to the course of the Court, a right to such a judgment. Such a judgment after all is an anomaly, because it is not the judgment which the plaintiff asks for. But it has arisen from the desire of Court of Equity to do complete justice and to allow the defendants to take the benefit of the action. Such a judgment after all is an anomaly, because it is not the judgment which the plaintiff asks for. But it has arisen from the desire of Court of Equity to do complete justice and to allow the defendants to take the benefit of the action. Under the old practice it was not uncommon for the second mortgagee to institute a cross-action asking to be allowed to redeem the first mortgagee who was plaintiff, and asking for a proper foreclosure and redemption decree over against the mortgagor or the puisne encumbrances, if any there were. But I am satisfied that though it was sometimes done the course of the Court has been to hold that it is not necessary there should be a cross bill (in former times) or cross action (in the present time), but If on the proofs before the Court or proper admissions made, the second mortgagee's case is set up, then he is entitled to establish his case and to avail himself of the benefit of the action in the manner I have mentioned.” This appears to have been the practice in the’ Calcutta High Court for a number of years, as is stated in the case of kissory Mohan v. kally Churn Ghose, [1894] I.L.R. 22 Cal, 100. In that case a suit was brought on a mortgage by a prior encumbrance for an account and for sale of the mortgaged-property, impleading a puisne mortgagee. The puisne mortgagee appeared and proved his mortgage and asked that the decree sought to be obtained by the plaintiff might also provide for an account on the footing of his mortgage, and for payment of the amount found due to him out of the sale proceeds. The fourth defendant in the suit was the purchaser of the equity of redemption in the mortgaged properties. The decree directed an account of what was due to the plaintiff on foot of his mortgages and also an account of what was due to the puisne encumbrancer on foot of his mortgage, and for payment by the fourth defendant of the sum found to be due on these mortgages within six months, and, in default of payment, it was directed that the mortgaged properties should be sold and the proceeds paid into Court, and the balance applied in satisfaction of the several mortgage debts. The fourth defendant obtained a rule calling on the plaintiff and the puisne encumbrancer to show cause why the decree should not be varied so as to limit it to a decree in favour of the plaintiff, and it was contended on his behalf that in making a decree in its present form, the Court had in effect made a decree as between co-defendants, which in a suit of the kind it had no jurisdiction to do. SALE, J., dismissed the application, holding that it had been the practice of the Calcutta High Court for a long series of years, in a case of the kind, where no issue is raised as between the defendants and no question of priority arises, on proof of the subsequent mortgages, to make a decree directing an account on the footing of each of the mortgages and fixing one period of redemption for all the defendants.” 27. I may point out that in a suit where mortgagee has obtained a decree for sale and subsequently acquires an interest in a portion of the equity of redemption, the mortgagor cannot claim that the estate bought by the mortgagee, shall be first sold, and the other estate only sold in the event of there being a balance of the mortgage debt remaining unpaid. Neither can the mortgagee throw the whole burden, of the mortgage debt upon the portion of the property remaining in the hands of the mortgagor. In such a case the Court will direct an account to be taken of the relative values of the two properties, and that the debt be discharged in accordance with such values. Neither can the mortgagee throw the whole burden, of the mortgage debt upon the portion of the property remaining in the hands of the mortgagor. In such a case the Court will direct an account to be taken of the relative values of the two properties, and that the debt be discharged in accordance with such values. So, in the case with which we are dealing it was open, as it seems to me, to the defendants-appellants in the suit of Raja Sheoraj Singh to have claimed the benefit of section 82 of the Transfer of Property Act, and if they had done so, the Court might properly, I think, in those suits have adjusted the equities existing between them and the other co-owners of the property, and, whilst passing a decree for sale in favour of the mortgagees have supplemented that decree by direction that as between the several owners of the equity of redemption, the several properties were primarily liable to satisfy only the retable proportion of the mortgage debts attributable to them respectively, and by a further direction that an account be taken of the respective values of the properties, and that regard be paid to the respective rights of the co-owners in the carrying out of sales of the property. Ordinarily the Court is entitled to work out the equities between co-defendants against whom a plaintiff has obtained relief, where there are subordinate questions necessary to be considered to adjust the rights of the defendants consequent on the relief obtained by the plaintiff; and I fail to see why this should not be done in a mortgagee's suit for sale. In a case, for example, where the principle of marshalling applies, the Court will in a suit for sale on a mortgage made in favour of a mortgagee of two properties-protect by its decree the equitable right of a puisne mortgagee of one of the two properties, whose property may be sold to satisfy the debt of the prior mortgagee, by allowing him to stand in the place of the prior mortgagee, in regard to the other property or in some other way. Yet such a decree would not be strictly in conformity with the form of decree prescribed by section 88. 28. Now marshalling and contribution are closely akin. Yet such a decree would not be strictly in conformity with the form of decree prescribed by section 88. 28. Now marshalling and contribution are closely akin. Vice-Chancellor Sir KNIGHT BRUCE in the case of Tomb vs. Rock, [1846] 2 Collyer, 499 says: “The question, as I have said, is one of contribution, which, if it differs from marshalling, does so in species rather than generically, in form rather than in nature. Marshalling and contribution are each of them the adjustment between several persons of their right respectively inter se in respect of a charge or claim, which affecting all of them or properties belonging to all of them respectively, has been or may be enforced in a manner not unjust as far as the person is concerned by whom it was or may be enforced, but not just as between the persons or properties liable— a branch of jurisprudence known to the civil law and which could not but belong, in some form more or less extensive, to an enlightened system of laws.” I may further add that where mortgaged property has been sold to satisfy an encumbrance and a balance remains after satisfaction of the mortgage debt, then, under the provisions of section 88 of the Transfer of Property Act, such balance is to be paid “to the defendant or other persons entitled to receive the same.” If in such a case there are owners of different parts of the mortgaged properties, it is obvious that the Court must ascertain the ratable proportion of the mortgage debt attributable to each portion, so that the balance may be equitably distributed. The authorities which I have cited, appear to me to afford ample ground for thinking that the Court may properly, in a mortgagee's suit for sale, have regard to the equitable right to contribution, if claimed by co-defendants who are owners of the equity of redemption in different portions of the mortgaged property, and may adjust those rights in the suit. Care, of course, in such a case, must be taken that the prior mortgagee, who has a right to recover his debt out of any portion of the mortgaged property, shall not be in any manner prejudiced. Care, of course, in such a case, must be taken that the prior mortgagee, who has a right to recover his debt out of any portion of the mortgaged property, shall not be in any manner prejudiced. It was the object of the Legislature, I think, that the equities of all parties interested in mortgaged property should be adjusted in one suit, and multiplicity of suits be thereby avoided, when it provided by section 85 of the Transfer of Property Act that “all persons having an interest in the property comprised in a mortgage must be joined as parties to any suit under this chapter relating to such mortgage;” as also by the provisions contained in section 244 of the Code of Civil Procedure, which directs that questions arising between the parties to a suit in which a decree is passed or their representatives and relating to the execution, discharge or satisfaction of the decree, shall be determined by order of the Court executing the decree and not by a separate suit. 29. If I be wrong in thinking that the rights of co-mortgagors as regards contribution inter se cannot be adjusted in a suit brought by a mortgagee for the enforcement of a security by sale, I would still hold that a co-mortgagor, whose property has been sold by the court, but has failed to realise enough to satisfy the entire mortgage debt, has not any charge upon the rest of the mortgaged property in respect of the excess realized by the sale of his property over and above the share of debt properly attributable to that property. 30. For the foregoing reasons I would dismiss the appeal with costs. It is unnecessary for me to discuss the other question which was raised by the respondents. BURKITT, J. It is unnecessary for me to recapitulate the facts out of which this appeal has arisen. They are very fully set forth in the judgments of the learned Chief Justice and of my brother BANERJI, which I have had an opportunity of perusing. BURKITT, J. It is unnecessary for me to recapitulate the facts out of which this appeal has arisen. They are very fully set forth in the judgments of the learned Chief Justice and of my brother BANERJI, which I have had an opportunity of perusing. One question chiefly arises for consideration in this case, namely-Has one of two or more co-mortgagors (including the transferees of the equity of redemption from any of them) whose portion of the mortgaged property has been sold in execution of a decree for sale on the mortgage, and has fetched at auction a larger sum than was raleably attributable to it (under section 82 of the Transfer of Property Act), but has not discharged the whole of the mortgage debt any right by law against his co-mortgagors to compel them to contribute to and indemnify him to the extent by which the proceeds of sale of his portion of the mortgaged property was in excess of the amount ratably due from it, and if so, does he acquire a charge over his co-mortgagor's portions of the mortgaged property to the extent of that excess? On that question I fully concur in the opinion expressed by the learned Chief Justice and in the reasoning by which that opinion is supported. 31. I am unable to appreciate the argument which is sought to be drawn by analogy from the case of co-sureties. Co-sureties bind themselves to discharge, in certain eventualities the liabilities of a third party for which they otherwise would not be responsible, while co-mortgagors (including in that term their transferees) are themselves the debtors liable jointly to their mortgagee for the repayment of money they have borrowed from him on the security of their immovable property, a liability which is enforceable by sale of that property. 32. As to the question whether, in suit for sale by a mortgagee against several co-mortgagors (and their transferees) liable to the plaintiff mortgagee under one and the same mortgage, the Court hearing that suit can settle the respective equities of the several co-mortgagors (and their transferees) inter se, I do not think it necessary to express any opinion. The question no where arises for decision in this appeal. The question no where arises for decision in this appeal. A suit for sale in which prior and subsequent mortgagees are brought before the Court stand on different footing, and provision is made for such a case in the Transfer of Property Act. 33. In my opinion this appeal cannot be supported. I would dismiss it with costs.