PETITIONER:
KIDAR LALL SEAL AND ANOTHER
Vs.
RESPONDENT:
HARI LALL SEAL.
DATE OF JUDGMENT:
18/12/1951
BENCH:
BOSE, VIVIAN
BENCH:
BOSE, VIVIAN
FAZAL ALI, SAIYID
CITATION:
1952 AIR 47 1952 SCR 179
CITATOR INFO :
D 1971 SC2177 (7)
RF 1978 SC1329 (28)
ACT:
Transfer of Property Act (IV of 1882), ss. 82, 92–Indian
Contract 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 mortgager- General and special law–Equita-
ble considerations.
HEADNOTE:
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 Transfer of Property Act specifically
deal with the right of contribution between co-mortgagors.
It is an established principle that when there is a general
law, and a special dealing with a particular matter, the
special excludes the general. Consequently, in the absence a
contract to the contrary, co-mortgagors are bound to con-
tribute proportionately to the value of the shares or parts
of the mortgaged property owned by them and not in propor-
tion to the extent of the benefits derived by each of them.
As ss. 82 and 92 of the Transfer. of Property Act prescribe
the conditions 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 consid-
erations.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 101 of
1950. Appeal by special leave from the Judgment and Decree
dated the 20th September, 1949, of the High Court of Judica-
ture at Calcutta (Hurries C.J.and Chatterice 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 Calcutta High
Court in Suit No. 343 of 1943 instituted under the
Original Jurisdiction of the High Court).
M.C. Setalvad, Attorney-General for India
(B. Sen,with him) for the appellant.
S.C. Isaac (B. Barterice, with him) for the
respond-
ent.
1951. December 18. The leading judgment was delivered
by Bose J. Fazl Ali J. agreed,
180
Bose J.–This is a defendant’s appeal in a suit for
contribution brought by the son of a mortgagor against the
co-mortgagors.
The parties are related as below :–
Balai Lall Seal
(died1917)
I
Megharnala Dassi
(died 1945)
I I I I I
Bejoy Lall Biswa Lall Tarak Lall Kedar Lall NakuLall
(D. 23-5-33) (D. Nov. 1936) Deft 1 Deft. 2
(Born (Born
I I
Jugal Lall Hari Lall 22-11-1907) 7-2-1910)
(Plff.)
The mortgagors were the plaintiff’s father Tarak Lall and
Tarak’s two brothers Kedar and Naku. The mortgage was exe-
cuted on the 12th June, 1936, in 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, 1989.
In execution the mortgagee proceeded against the proper-
ty 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 execu-
tion and on the 11th of March, 1943, the claim was satisfied
in this way.
An order of the Court was obtained sanctioning 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 was directed that the consid-
eration should first be applied in payment of the claim and
costs and that the decreeholder should execute a reconvey-
ance of the rest of the mortgaged properties in favour of
the mortgagors. The sanction of the Court was necessary
because the judgment-debtor Hari Lall (present plaintiff)
was a minor.
181
This was done and 20, Round Tank Lane, was conveyed by
the present plaintiff to the Hooghly Flour Mills on the
18th of March, 1943. Out of the consideration a sum of Rs.
97,116-11-0 was paid to the Mills in lull satisfaction of
the claim and costs then outstanding. The Mills executed a
reconveyance of the rest of the properties to the mortgagors
in release of the mortgage on the same day.
In addition to this Rs. 97, 116-11-0, further sums of
Rs. 14,400 and Rs. 8,100 had also been paid before the dates
of these transactions. These sums were paid by a Receiver
who had been appointed by the Court pendente lite. These
sums came out of the rents which the Receiver obtained from
the plaintiff’s property, 20 Round Tank Lane.
The plaintiff says that in this way he paid a total of
Rs. 1,19,116-11-0 in satisfaction of the mortgage. His one-
third share in this comes to Rs. 39,872-3-8. He claims that
he is entitled to receive the balance of Rs. 79,744-7-4 from
the two defendants and that each of them is liable for a
half of that sum namely, Rs. 39,872-3-8.
In addition to this the plaintiff had incurred costs
amounting to Rs. 1,144-8-6 in resisting Mst. Gyarsi’s claim
and in connection with the reconveyance. He also claims
one-third of this sum, namely Rs. 381-8-2, from each of the
defendants. The total claim against each defendant accord-
ingly comes to Rs. 40,253-11-10. In addition to this the
plaintiff asked for-
(1) “a declaration that the properties mentioned in
Schedule ‘A’…belonging to the defendants stand charged
with the repayment of the sum of Rs. 80,507-7-8 being the
aggregate amount due and payable by the two defendants,” and
(2) “Decree under Order XXXIV of the Civil Procedure
Code in proper form.”
Schedule A contains a list of the rest of the mortgaged
properties which belong exclusively to the defendants,
24
182
It will be seen that the plaintiff claims on the basis
that each of the three mortgagors is liable to contribute in
equal shares towards payment of the mortgage debt.
The defendants did not deny their liability to contribute.
They only challenged the basis on which it was to be comput-
ed. They ,pleaded a special agreement between Tarak Lal and
themselves under which their liabilities were to be calcu-
lated in the following way. According to them, the bulk of
the Rs. 80,000 was borrowed on what I have called the suit
mortgage to pay off previous debts which had been incurred
by the parties on earlier mortgages. The amount which went
towards satisfaction of the defendant’s portion of these
earlier liabilities was only Rs. 13,259-2-4. Therefore, the
only benefit they got out of this Rs. 80,000 was to that
extent. The plaintiff’s father Tarak on the other hand
benefitted to the extent of Rs. 53,481-11-4. They therefore
agreed at the date of the suit mortgage that their respec-
tive liabilities as between themselves should be proportion-
ate to the benefit derived by each as above.
Sinha J., who tried the suit on the Original Side of
the Calcutta High Court, held that the agreement was proved.
On appeal the learned Chief Justice of the High Court and
Chatterjee J. disagreed and held that it was not. As I
agree with the learned appellate Judges for reasons which I
shall give hereafter, it will be necessary to set out the
further facts. But I need not do so in any detail as they
are given in full in the two judgments of the High Court. We
are only concerned here with the question of principle; so
it will be more convenient to reduce the problem to its
simplest terms.
We are concerned here with four items of property which
I shall term Chittaranjan Avenue, Strand Road, No. 16 Round
Tank Lane and 20 Round Tank Lane. These properties were
originally joint family properties, but in the year 1932
there was a partition which was compelled by reason of a
suit filed by Tarak
183
against his brothers and mother. The upshot was that the
properties were divided as follows: -
(1) Bejoy, Kedar, Naku and the mother Meghamala
obtained Chittaranj an Avenue.
(2) Tarak (plaintiff’s father) obtained 16 Round Tank
Lane and 20 Round Tank Lane.
(3) Kedar, Naku and Biswa Lall obtained Strand Road.
Before this partition there were three mortgages: The
first of these was executed on the 16th of June, 1925. All
five brothers joined in it and they mortgaged the Strand
Road property for Rs. 10,000. This was in favour of Bhuvan
Chandra Bhur.
The second was on the 11th of October, 1926. In this
Bejoy and Tarak mortgaged their 2/5 share in Chittaranjan,
Strand, Dum Dum and 20 Round Tank Lane for Rs. 5,000. The
mortgagee was Binode Behari Sen.
The third was on the 28th January, 1927. In this Bejoy
and Tarak again mortgaged their 2/5 share in the same items
of property for Rs. 7,000 to Binode Behari Sen and Kunja
Behari Sen.
All three sets of mortgagees, or their representatives,
instituted suits on their respective mortgages and obtained
final decrees-
Bejoy died on the 23rd of May, 1933, leaving a son
Jugal.
On the 12th of June, 1936, came what I have called the
suit mortgage executed by the three brothers,Tarak, Kedar
and Naku, for Rs. 80,000. The properties mortgaged were-
(1) the shares of Kedar and Naku in Chittaranjan
Avenue and 16 Round Tank Lane;
(2) 20 Round Tank Lane which had been allotted to Tarak;
(3) the reversionary interest of all three in the share
allotted to the mother.
The consideration of Rs. 80,000 was expended as
follows:Rs. 29,667-10-0 was paid by Tarak, Kedar and Naku in
satisfaction of the first mortgage and the
184
later decretal charge; Rs. 11,519-11-0 in satisfaction of
the second and Rs. 13,502-14-0 in satisfaction of the third.
The balance of Rs. 25,310 is alleged by the appellants to
have been retained by Tarak. I have taken these figures
from the judgments of the High Court. I understand some of
the details are disputed, so I make it clear that I am not
setting out the decision of this Court regarding the de-
tails but only giving an overall picture.
Shorn of overburdening detail the problem, reduced to
its simplest terms, comes to this. Three persons A, B and C
separately own properties of unequal value, Blackman,
Whiteacre and Greenacre. Let us assume that their values at
the material date are Rs. 30,000, Rs. 20,000 and Rs. 10,000
respectively.
A, B and C, acting in various combinations from time to
time, incur debts. It matters not for present purposes
whether those debts are secured on these properties or not
because a time must come when their separate liabilities as
amongst themselves have to be ascertained and apportioned.
Let us assume that when that is done, A’s responsibility
extends to Rs. 2,000, B’s to Rs. 3,000 and C’s to Rs. 5,000.
In order to clear off these debts, A, B and C jointly
mortgage their three estates for Rs. 10,000, the total
aggregate sum due at the date of the mortgage from the three
of them. There is no contract between them, either in the
mortgage deed or otherwise, regarding their respective
shares of responsibility in the Rs. 10,000.
At the date of redemption the mortgage debt has swollen
to Rs. 15,000. A alone redeems by selling Blackacre, which
is his separate estate, to the mortgagee for Rs. 35,000 that
being the value of Blackacre at the date of redemption. Rs.
15,000 of this is applied in satisfaction of the mortgage
debt and the balance of Rs. 20,000 is retained by A. What
are A’s rights as against B and C ?
Three solutions readily suggest themselves. One is that
the three contribute equally. In that event B would pay A
Rs. 5,000 and C would pay Rs. 5,000.
185
A second solution is that they pay in proportion to the
extent of the benefits derived. In that event B’s share
would be 3/10 of Rs. 15,000, that is to say, Rs. 4,500. and
C’s would be 5/10 of Rs. 15,000, that is Rs. 7,500.
A third solution is that they pay proportionately to the
values of the properties mortgaged. In that event B would
have to pay 2/6 of Rs. 15,000, that is Rs. 5,000, and C 1/6
of Rs. 15,000′ which come to Rs, 2,500.
The problem is to know which of these three solutions to
apply. In the absence of other considerations, the most
equitable solution is obviously the second. But the matter
is not as simple as that. There are certain statutory provi-
sions which must first be examined.
The learned counsel for the plaintiff-respondent con-
tended that section 43 of the Contract Act applied. He
relied on the following provision :-
“Each of two or more joint promisors may compel every
other joint promisor to contribute equally with himself to
the performance of the promise, unless a contrary intention
appears from the contract.
If any one of two or more joint promisors makes default in
such contribution, the remaining joint promisors must bear
the loss arising from such default in equal shares.”
The argument is that unless a contrary intention appears
from “the contract” the. loss must be borne equally. It was
contended, and with that I agree, that the words “the con-
tract” can only refer to the main contract between the
promisors on the one side and the promisee on the other.
That contract in this case is the suit mortgage. There is no
contract to the contrary in the document, therefore, it was
contended, the section must apply. That of course would be
the clear, logical and simple conclusion ii there were no
other provision of law to consider. But we are dealing
here with a mortgage and so we have also to look to the
provisions of the Transfer of Property Act.
186
Incidentally, if this argument is pushed to its logical
conclusion it would exclude any collateral or subsequent
agreement between the promisors inter se which does not
appear in the main contract. But we need not enter into
that here.
The sections of the Transfer of Property Act which
concern us are 82 and 92. The first confers a right of
contribution. The second a right of subrogation. I will
consider section 82 first. It runs :–
“Where property subject to a mortgage belongs to two or
more persons having distinct and separate rights of owner-
ship therein, the different shares in or parts of such
property owned by such persons are, in the absence of a
contract to the contrary, liable to contribute rateably to
the debt secured by the mortgage ……… ”
That is the position here.
Next I turn to section 92. That runs–
“ …… any co-mortgagor shall, on redeeming property
subject to the mortgage, have, so far as regards redemption,
foreclosure or sale of such property, the same rights as the
mortgagee whose mortgage he
redeems may have against the mortgagor …… ”
That also applies.
Now these provisions at once raise a competition between
sections 82 and 92 of the Transfer of Property Act, section
43 of the Contract Act and what I might term the principle
of beneficial, as opposed to proportionate or equal, distri-
bution of liability.
I am of opinion that the second solution adumbrated
earlier in this judgment, based on equities, must be ruled
out at once. These matters have been dealt with by statute
and we are now only concerned with statutory rights and
cannot in the face of the statutory provisions have recourse
to equitable principles however fair they may appear to be
at first sight.
The Privy Council pointed out in Rani Chhatra Kumari v.
Mohan Bikram (1) that the doctrine of the
(1) (1931) I.L.R. 10 Pat. 851 at 869.
187
equitable estate has no application in India. So also refer-
ring to the right of redemption their Lordships held in
Mohammad Sher Khan v. Seth Swami Dayal(1) that the right is
now governed by statute, namely section 60, Transfer of
Property Act. Sulaiman c.J. (later a Judge of the Federal
Court) ruled Court equitable considerations in the Allahabad
High Court in matters of subrogation under sections 91, 92,
101 and 105, Transfer of Property Act, in Hira Singh v. Jai
Singh(2) and so did Stone C.J. and I in the Nagpur High
Court in Taibai v. Wasudeorao (3). In the ease of section 82
the Privy Council held in Ganesh Lal v. Charan Singh(4) that
that section prescribes the conditions in which contribution
is payable and that it is not proper to introduce into the
matter any extrinsic principle to modify the statutory
provisions. So, both on authority and principle the deci-
sion must rest solely on whatever section is held to apply.
So far as section 43 is concerned, I am not prepared to
apply it unless sections 82 and 92 can be excluded. Both
sections 43 and 82 deal with the question of contribution.
Section 43 is a provision of the Contract Act dealing with
contracts generally. Section 82 applies to mortgages. As
the right to contribution here arises out of a mortgage, I
am clear that section 82 must exclude section 43 because
when there is a general law and a special law dealing with a
particular matter, the special excludes the general. In my
opinion, the whole law of mortgage in India, including the
law of contribution arising out of a transaction of mort-
gage, is now statutory and is embodied in the Transfer of
Property Act read with the Civil Procedure Code. I am clear
we cannot travel beyond these statutory provisions.
Now, when parties enter into a mortgage they know, or
must be taken to know, that the law of mortgage provides for
this very question of contribution. It confers rights on the
mortgagor who redeems and directs that, in the absence of a
contract to the contrary, he
(1) (1922) 49 I.A. 60 at 65. (3) I.L.R. 1938 Nag. 206
at 216.
(2) A.I.R. 1937 All. 588, at 594. (4) (1930) 57 I.A. 189.
188
shall be reimbursed in a particular way out of particular
properties. The parties are at liberty to vary these rights
and liabilities by special contract to the contrary but if
they do not do so, I can see no reason why these provisions
should be abrogated in favour of a section in the Contract
Act which does not deal with mortgages. Slightly to vary
the language of the Judicial Committee it is the terms and
nature of the transaction viewed in the light of the law of
mortgage in India which exclude the personal liability and
therefore section 43, except where there is a contract to
the contrary.
It was suggested that the rule is inequitable and will
operate harshly in cases like the present. But the remedy
lies in the parties’ own hands. It is open to them to make
a contract to the contrary. If they do not, then the law
steps in and makes statutory rules to which effect must be
given. It is not for judges to consider whether that is the
best possible solution but the rule at any rate obviates the
necessity of roving enquiries into the objects of a borrow-
ing and the application of the funds. On an overall basis
it is perhaps as good as any other. But that hardly matters.
The rule is there and full effect must be given to it.
The learned counsel for the plaintiff-respondent urged
that the defendants are shut out from relying on section 82
because that was not their case and the question was never
raised by them in the High Court. Such reference as there is
to the section was with reference to an argument urged on
behalf of the plaintiff. I am not impressed with this
objection., On the facts set out by the plaintiff it is
evident that he is entitled to contribution. The method of
computation is a matter of law and it is for the judges to
apply the law to the facts stated and give the plaintiff
such relief as is appropriate to the case.
I turn now to the question of fact, the special agree-
ment pleaded by the defendants. The only evidence in sup-
port of it is that of the first defendant Kedar. According
to him, the agreement was an oral one
189
though the parties contemplated writing and registration.
His explanation for lack of any writing is this. He was
asked whether anything was put down in writing and he re-
plied :-
“No, nothing was done then, but there was an understand-
ing that it would be done but Tarak went away to Darjeeling
and when he came back he died soon after he came back and
nothing could be done in writing.”
Later, he was asked-
“Therefore, you, contemplated that there would be a
document which would have to be registered in connection
with the adjustment ?”
and he replied’ ‘Yes”. He also tells us that the parties
regarded the matter as confidential and so only three per-
sons were present, Tarak, Naku and himself. It is to be
observed that Naku, who is the second defendant, has not
entered the box.
Stopping there, it is evident that we have to rely on
the memory of a very interested person speaking nearly
thirteen years after the event about a transaction affecting
some Rs. 80,000. Nor is it the memory of some simple event
which might well have fixed itself in his mind. The question
whether and at what stage parties reach finality when writ-
ing is in contemplation is a difficult and complex one
involving delicate considerations of much nicety even when
the preliminaries are all in writing. The turn of a phrase
here, the use of a word there, may make a world of differ-
ence. The law regarding this was examined by me at some
length in the Nagpur High Court in Shamjibhai v. Jagoo
Hernchand Shah (1). How much greater are the difficulties
when we do not know the exact words the parties used and
have to delve into the mind of a dead man (Tarak) through
the impressions of an interested witness given some thirteen
years after the event.
I find it difficult to accept this version and consider
it would be dangerous to do so, particularly when the
(1) I.L.R. 1949 Nag. 381 at 586-588, and 598
25
190
witness is a hesitant and reluctant one, as his examination
discloses, and even evasive on some points; also when the
defendants have deliberately withheld from the Court assist-
ance which it was in their power to render–I refer to the
absence of Naku, the only other person present, from the
box. I am unable to accept this testimony.
Nor is this the only point. Despite the insistence of
the witness that the parties were on good terms and trusted
each other, the fact remains that Tarak found it necessary
to institute a suit for partition against his brothers and
fight it to a finish. They were not able to arrange matters
amicably. it was suggested in argument that was probably
because of creditors who could not be persuaded to agree and
it was pointed out that creditors were joined in the suit,
but that is not wholly convincing particularly when it is
admitted that Tarak was insisting on writing and regis-
tration.
It is evident that he, at any rate, was not prepared
to leave matters as they were and trust to the good faith of
his brothers.
Now we know that Tarak was in Calcutta about three
months after the date of the alleged agreement. We also know
that Kedar was most anxious to have such an agreement, for
he tells us so. He tells us further that there was before
them a rough draft of the terms. That document was produced
in Court. But the draft was neither signed nor initialled.
The only inference I can draw from these facts is that Tarak
either refused to agree or had not made up his mind. The
figures put forward by the defendants were contested on
behalf of the plaintiff and we were given an alternative set
of figures which in turn were contested by the other side,
but they were enough to show that the matter is not as
straightforward or as simple as the defendants would have us
believe. Therefore, Tarak’s inaction during the three
months and the omission of either side to initial the draft
point clearly, at the lowest, to hesitancy on Tarak’s part.
It may be he wanted his lawyers to examine his position or
it may be he refused to have anything to do with it.
191
It is just possible that there were negotiations, but on
those broad facts I am not prepared to believe the witness
when he tells us, or rather suggests, that the parties
reached finality. It would in any event be dangerous to
believe a witness in circumstances like this. But when the
defendants deliberately withheld from the Court that assist-
ance which is its due I can only conclude that their case
was too shaky to stand further proving. On these broad
grounds alone I would hold that the agreement is not proved.
Much was made in argument about the rule regarding the
weight to be given to the estimate of the judge who saw and
heard a witness. I do not doubt the soundness of the rule
but it can be pushed too far as their Lordships of the
Judicial Committee pointed out in Virappa v.
Periakaruppan(1). In the present case, the learned Judge
who tried the case believed Kedar not because of his demea-
nour but because the learned Judge considered that his story
was inherently probable. That, however, is a matter which
the learned appellate Judges were in as good a position to
appreciate as the learned trial Judge. If probability is to
be the test, then the conduct of Tarak suggests that it is
very improbable that he could have agreed.
That leaves at large the nature of the relief to which
the plaintiff is entitled. In the view I take, there being
no contract to the contrary, the plaintiff’s only remedy is
under section 92 of the Transfer of Property Act read with
section 82. The question is, has his suit been so framed ?
The plaintiff has claimed separate personal reliefs
against the defendants. As there is no personal covenant as
between the mortgagors or any “contract to the contrary”,
that relief’ cannot be granted.
The plaintiff has also asked for a declaration of charge
and for a decree under Order XXXIV, Civil Procedure Code.
The declaration of charge standing by itself is superfluous
although Order XXXIV, rule 2 (1) does require that the
decree in a mortgage suit shall
(1) A.I.R. 1945 P.C. 35 at 37.
192
“declare the amount so due” at the date of the decree. But
reading the two reliefs together, I am of opinion that
though the claim is inartistically worded the plaintiff has
in substance asked for a mortgage decree up to a limit of
Rs. 40,253-11-10 with interest against each defendant. No
other kind of decree could be given under Order XXXIV.
Therefore, though he has not used the word “subrogation” he
has asked in substance for the relief to which a subrogee
would be entitled under the Transfer of Property Act.
I would be slow to throw out a claim on a mere techni-
cality of pleading when the substance of the thing is there
and no prejudice is caused to the other side, however clum-
sily or inartistically the plaint may be worded. In any
event, it is always open to a court to give a plaintiff such
general or other relief as it deems just to the same extent
as if it had been asked for, provided that occasions no
prejudice to the other side beyond what can be compensated
for in costs.
In the circumstances, in the absence of agreement be-
tween the parties as to the figures, I would remand this
case to the High Court for (1) an enquiry regarding the sum
paid by the plaintiff’s father for satisfaction of the
mortgage dated the 12th June, 1936, (2) for the interest due
on that sum at the contract rate in the mortgage from the
date of payment to the date of decree, (a) lot the values of
the various properties mortgaged at the date of the mort-
gage.
When the figures are ascertained, I would direct that
the liability of each defendant be ascertained separately in
the manner prescribed by section 82, Transfer of Property
Act.
In. the event of this liability exceeding Rs.
40,253-11-10 with interest against either defendant, I would
direct that his liability be reduced to Rs. 40,253-11-10
plus interest.
When these figures are ascertained, I would direct that
a mortgage decree for sale be drawn up in the usual way
affording either defendant the right to redeem the whole of
the balance of the property
193
(excluding the plaintiff’s) for the aggregate sum due as
above and, in default of payment, limiting the liabilities
of each item of property to the sum rateably due on it under
section 82.
On the question of costs. The plaintiff repudiated
section 82 in the course of the arguments before us and
rested his case on section 43 of the Contract Act, nor did
he clearly and unmistakably plead a case of subrogation in
his plaint even in the alternative. The defendants, on the
other hand, set up a case which has failed on the facts. I
would, therefore, direct each side to bear its own costs in
this appeal.
As regards the costs incurred in the Courts below and
any costs which may be necessitated by a further enquiry,
they will be determined according to the final result of the
litigation and with due regard to all matters bearing on the
question of costs.
FAZL ALI J.–I agree.
Case remanded.
Agent for the appellant: M.S.K. Sastri.
Agent for the respondent: Ganpat Rai.