KIDAR LALL SEAL AND ANOTHER versus HARI LALL SEAL

KIDAR LALL SEAL AND ANOTHER versus HARI LALL SEAL

In the absence of a contract to the contrary, contribution is to be computed according to the value of the shares or parts of mortgaged property owned by the co-mortgagors under ss. 82 and 92 of the Transfer of Property Act. s. 43 of the Contract Act does not apply where the special statutory provisions exist. Equitable or benefit-based calculations are excluded in face of the statutory scheme.

Parties
Appellant: Kidar Lall Seal; Appellant: Naku Lall Seal; Respondent: Hari Lall Seal
Jurisdiction
India
Judgment Date
18 December 1951
Procedural Posture
Civil Appeal / Appeal by Special Leave From Judgment and Decree of Calcutta High Court
Outcome
Case remanded to High Court for enquiry and determination in accordance with section 82, Transfer of Property Act
Legal Topics
Contribution Between Co Mortgagors, Mortgage Liability, Statutory Interpretation, Subrogation
Property Law Contract Law Contribution Between Co Mortgagors Mortgage Liability Statutory Interpretation Subrogation

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Parties

Kidar Lall Seal

Appellant

Naku Lall Seal

Appellant

Hari Lall Seal

Respondent

Procedural Posture

Civil Appeal / Appeal by Special Leave From Judgment and Decree of Calcutta High Court

Legal Issues

  1. 1 Whether contribution between co-mortgagors is to be computed proportionately to value of properties mortgaged or benefit derived by each mortgagor
  2. 2 Whether the liability is governed by ss. 82, 92 of the Transfer of Property Act or s. 43 of the Indian Contract Act
  3. 3 Effect of special or collateral agreement between co-mortgagors

Ratio Decidendi

In the absence of a contract to the contrary, contribution is to be computed according to the value of the shares or parts of mortgaged property owned by the co-mortgagors under ss. 82 and 92 of the Transfer of Property Act. s. 43 of the Contract Act does not apply where the special statutory provisions exist. Equitable or benefit-based calculations are excluded in face of the statutory scheme.

Court Disposition

Case remanded to High Court for enquiry and determination in accordance with section 82, Transfer of Property Act

Orders

  • Enquiry as to sum paid by plaintiff's father for satisfaction of mortgage dated 12th June 1936
  • Determine interest due on sum paid at contract rate from date of payment to date of decree