JUDGMENT Pramada Charan Banerji, J.
1. This appeal arises out of a suit for contribution brought by the plaintiff appellant against the defendants in respect of a mortgage, dated the 11th of April, 1908, alleged to have been executed in favour of Dalel Khan and Sikandar Khan by the parties to this suit. The plaintiff discharged the mortgage and he claims to recover from the defendants their rateable share of liability for the mortgage debt. The defendants denied the execution of the mortgage and the payment of consideration. It was further contended on behalf of Imam Ali that he was of unsound mind at the date of the mortgage, and that the mortgage, if at all made, had been obtained from him by undue influence. On behalf of Shahamat Ali, who is a minor, it was urged that his mother, who is said to have executed the mortgage as his guardian, was not competent to do so on his behalf, that there was no necessity for the mortgage, and that he did not benefit by it. The court of first instance found in favour of the defendants and dismissed the suit. Upon appeal the learned Judge came to the conclusion that Imam Ali was not of unsound mind at the date of the mortgage, that there was no undue influence, and that the execution of the mortgage was proved as well as the payment of consideration. The learned Judge decreed the claim against Imam Ali. As regards the minor defendant, he was of opinion that his mother, not being his legal guardian according to Muhammadan Law, was not competent to mortgage his property. He further proceeded to try the question of necessity, and on that point he observed that, although it did not seem that there was any ground for assuming that the money was not taken for necessity, it could not be said that the plaintiff had clearly proved the existence of necessity. He accordingly affirmed the decree of the first court as against the minor defendant. The plaintiff filed this appeal and objections have been preferred under Order XLI, Rule 22, on behalf of Imam Ali. We may deal with these objections first of all. It was urged that as the mortgage was not discharged under compulsion, the plaintiff could not maintain a suit for contribution. We do not agree with the contention. It is clear that if the plaintiff discharged the mortgage he relieved the property of the defendants from burden which lay on it, and is, therefore, entitled to be compensated for what he paid for the defendants and for their benefit. It was also not necessary, in order to entitle him to contribution, that he should have been put into possession of the property of the defendants. Ashe relieved the defendants of a burden, whether under compulsion of law or as a private transaction, he is entitled to claim that the defendants, his co-mortgagors, should pay him what he has paid for their benefit.
2. It is next urged that the lower court did not come to a clear finding as to Imam Ali's state of mind at the date of the mortgage, and as to undue influence. We think that the finding of the learned Judge on the point is as clear as it could be. He was distinctly of opinion that at the date of the mortgage the defendant Imam Ali was not of unsound mind such as incapacitated him from under standing the nature of the transaction. He also clearly found that there was no undue influence. The objections put forward on behalf of the respondent Imam Ali must, therefore, fail.
3. As for the appeal, the first ground of the learned Judge's decision, namely, that the mother of the defendant had no power to make the mortgage, and that the mortgage could not be binding whether it was for necessity and for the benefit of the minor or not, cannot be supported in view of the decisions of this Court in Majidan v. Ram Narain (1903) I.L.R. 26 All. 22, which followed the ruling in Hasan Ali v. Mehdi Husain (1877) I.L.R. 1 All. 533. According to these rulings, if the mother of the minor defendant, who was his de facto guardian, made the mortgage for the benefit of the minor and for necessity, the mortgage would be binding on the minor. The learned Judge's finding on the question of necessity is not very clear and is open to doubt. It is, therefore, necessary to obtain from the court below a clear and distinct finding on the issue whether the debt in question was incurred by the mother of Shahamat Ali, minor, for valid necessity and for his benefit. We refer this issue to the court below under Order XLI, Rule 25, of the Code of Civil Procedure. The court will decide the issue upon the evidence already on the record. On receipt of its finding the usual ten days will be allowed for filing objections.
Waish, J.
4. I want to say a word or two about this case out of respect to the learned Judge of the lower court. It is quite clear that he followed the dictum which has been cited from the argument in the Privy Council, and did not recognize that the decisions of this Court, which were quoted to him, were binding upon him. Now it is quite true that, in spite of the decision to which he came upon the point of law, he would still have to dispose of the issue as to necessity, and if he had done so in any shape or form, however unsatisfactory on the face of it, I should have to accept it. To my mind it is perfectly clear that he came to no decision at all. I look at the decisions to which he did come. In clear unambiguous language he held that the execution of the deed was proved. In clear unambiguous language he held that the two issues of unsound mind and undue influence failed. In clear unambiguous language he held that the mother had no power to mortgage. I, therefore, find that out of five decisions to which, he is alleged to have come he used clear unambiguous language in four. In the fifth he used language which under no circumstances can be called either clear or unambiguous. Mr. O'Conor sought to justify or rather to satisfy us that it was a finding of fact on two grounds. The first, as I understand him, is that it was a slipshod judgement; secondly, that there had already been a finding by the Subordinate Judge. To my mind both these points rather confirm the view which I took on a study of the language used by the District Judge. If it had been a slipshod judgement, one might possibly infer that he intended to come to some decision, But to my. mind it is a very clear and well expressed Judgment from the beginning to the end, and my view, therefore, is strengthened that he did not intend to come to any decision on this point Secondly, the fact that he had a decision before him of the Subordinate Judge on this point rather strengthens my view that the tendency of his mind was not to agree with the Subordinate Judge. He could have said, on the merits as to necessity that the Subordinate Judge had found that there was no necessity, and that he agreed with him. So far from saying that, he dwelt upon the strength of the argument in favour of necessity, and he went on to say, "it does not seem that there is any ground for assuming that the money was not taken for necessity, though it cannot be said that plaintiff has clearly proved this." Under these circumstances it is impossible for me to come to the conclusion that the District Judge intended to find that there was no necessity.