Authored By : Mitter, John Freeman Norris, Arthur Wilson,Henry Thoby Princep, Loftus Richard Tottenham

Mitter, J.

1. After carefully considering the arguments addressed to usin this case, I retain the opinion which I expressed in Enayet Hossein aliasDhunnoo Mea v. Muddunmoonee Shahoon 14. B.L.R. 155. In the majority of cases asobserved in that decision, a contrary view would result in injustice. Generallya co-sharer defaults to pay his quota of Government revenue when he is ininsolvent circumstances. In these cases a mere personal decree against thedefaulting co-sharer would be useless. On the other hand, if the principle laiddown in that case be adopted, I cannot conceive of any instance in whichinjustice is likely to be done to any party. In cases not governed by anyparticular legislative enactment, Courts in this country are directed by theLegislature to act according to justice, equity and good conscience. It seemsto me that if in this case we give effect to a principle which preventsinjustice in many cases and in no conceivable case operates unjustly, which hasbeen acted upon for more than 12 years and which had been adopted by theLegislature in cognate subjects, we shall be strictly following the directionof the Legislature referred to above. In Enayet Hossein v. Muddunmoonee Shahoon14 B.L.R. 155 Mr. Justice Markby and myself to a great extent relied upon adictum of the Judicial Committee of the Privy Council in Nogender Chunder Ghosev. Kamini Dasi 11 M.I.A. 258. It has been suggested that that dictum wasintended to be applicable to payment of Government revenue by a mortgagee only.It is true that in that particular case the payment of revenue was made by amortgagee, but it seems to me that the dictum was laid down in terms wideenough to include any person who is interested in making it. If it was intendedto be applicable to payment of government revenue by a mortgagee only, I imagineit was also intended not to give to the mortgagee in respect of this paymentany right superior to that which be has under the mortgage. Thus if a secondmortgagee makes the payment, he would not be entitled to priority over thefirst mortgagee in respect of such payment. But that that was not intended isclear from the express language of the dictum. It says: "Considering thatthe payment of the revenue by the mortgagee will prevent the taluk from beingsold, their Lordships would, if that were the sole question for theirconsideration, find it difficult to come to any other conclusion than that theperson who had such an interest in the taluk as entitled him to pay the revenuedue to the Government and did actually pay it, was thereby entitled to a chargeon the taluk as against all persons interested there in for the amount of themoney so paid." According to this dictum, therefore, a person, who makesthe payment under the circumstances mentioned there, is entitled to a chargefor the money paid " as against all persons interested therein." Itfollows, therefore, that if a second mortgagee makes the payment, he would beentitled to a charge for the money paid by him as against the first mortgagee.This is exactly the principle upon which certain Irish cases, to which I shallrefer hereafter, have been decided. Then, again, in describing the class ofpersons who would be entitled to a charge by payment of Government revenue,their Lordships used the expression: "That the person who had such aninterest in the taluk as entitled him to pay the revenue, &c." Thisdescription is wide enough to include all persons interested in making thepayment. The judgment of the Judicial Committee was delivered by Lord Romilly,then Master of the Rolls, and it has been said that his Lordship, in decidingcases in his own Court, has disapproved of the doctrine which it is contendedhas been laid down by the dictum in question. But no English case has beencited before us showing that he entertained a different opinion. It seems to methat in holding that a person who is interested in protecting the property bypayment of Government revenue is entitled to a charge by making the payment"as against all persons interested therein," his Lordship has put iton the principle of a salvage lion. The Legislature in this country has alsoadopted this principle in the last two Beneal Tenancy Acts. It was for thefirst time recognized in Reg. VIII of 1819, Section 13, which enacts that moneyadvanced by an under-tenant to protect the superior putni taluk from sale"shall be considered as a loan made to the proprietor of the tenurepreserved from sale by such means (i.e., by payment), and the taluk sopreserved shall be the security to the person or persons making the advance,who shall be considered to have a lien thereupon in the same manner as if theloan had been made upon mortgage." In the sale law of 1845, a personalremedy was given to persons who are not co-sharers, and who are interested topay the revenue to protect their interest. In the sale law of 1859, the sameprovision was made with this addition, that in the case of a holder of a lienthe amount paid by him "shall be added to the amount of the originallien." In the Rent Act of 1869, Section 62 extends the provisions ofSection 13 of Reg. VIII of 1819, cited above, to payments made bynon-defaulting under-tenants to save the superior tenure from sale. The lastenactment on this subject is contained in Section 171 of the Bengal TenancyAct, 1885, which provides that the amount paid in order to prevent the sale ofa tenure or holding by a person having an interest in it, which interest wouldbe voidable upon the sale thereof, "shall be deemed to be a debt bearinginterest at 12 per centum per annum, and secured by a mortgage of the tenure orholding to him." It further provides that this "mortgage shall takepriority of every other charge on the tenure or holding other than a charge forarrears of rent." It was contended before us that the sale laws of 1845and 1859 giving only a personal remedy, the intention of the Legislature wasthat an owner of a fractional share of a zamindari should not be deemed to haveacquired a charge upon the remaining share for saving the whole zamindari bythe payment of Government revenue. Adopting this argument the Sudder DewanyAdawlut in Gobindpersaud Pundit v. Mussummat Soonduri Kunvmr Debia S.D.A.(1856) 867 and the High Court in Fagan v. Sreemotee Dasi Marsh. 266 decidedagainst the existence of this lien. The decision of the Judicial Committee inNogenderchunder Ghose v. Srimati Kamini Dasi 11 M.I.A. 258 cited above, waspassed in appeal against this latter judgment of the High Court. Having regardto the dictum laid down by the Judicial Committee and extracted above, it isclear that their Lordships did not approve of this argument. They observe:"This section (i.e., the section in the sale law of 1845 bearing upon thissubject) clearly authorizes the personal action, but it gives no remedy againstthe land which it leaves to the then existing law."

2. In passing I may remark that the two cases from theSudder decisions of 1850 and 1852, referred to in the course of the argument,have no direct bearing upon the question under our consideration. This was thestate of the case-law on the subject when Enayet Hassein v. MuddunmooneeShahoon 14 B.L.R. 155 was decided. The principle laid down in this decision wasacted upon in Nobin Chundet Roy v. Rup Lall Dass 9 C. 877 decided by McDonelland Field, JJ., in Ram butt Singh v. Horakh Narain Singh 6 C. 549 :8 C.L.R. 209decided by Maclean, J., and myself, in Mohesh Chunder Banerji v. Ram PrasunoChowdhry 6 C. 549 decided by Jackson and Tottenham, JJ., and in Deo Nundun Aghav. Deshputty Singh 8 C.L.R. 210 note, decided by Jackson and White, JJ. Atfirst sight the case of Mohesh Chunder Banerji v. Ram Prosunno Chowdhry 6 C.L.R28 does not seem to touch the question under our consideration; but on a closeranalysis of the judgment, it would appear that it not only affirms theprinciple in Enayet Hosseins case, but goes further, though in the samedirection. The facts of that case are these. The plaintiffs, appellants, werethe holders of a bond executed by defendants Nos. 1 and 17, in which a putnitaluk was hypothecated as a security for the loan. The taluk belonged to thedefendants Nos. 1 to 40. On the 13th of May, 1875, i.e., on a date subsequentto the bond, the putnidars made default to pay rent to the zemindars. The talukwas advertized for sale under Reg. VIII of 1819. The plaintiffs, in order toprotect their interests as mortgagees, paid the rent. In May, 1876, Messrs.Gisborne & Co., who were also made defendants, are alleged to havedeposited a certain amount of money in order to save the taluk from being soldin execution of a decree in a suit brought by the zemindars against theputnidars. They were assignees of a durputni interest in the taluk. Theplaintiffs sought to recover the sum advanced under the bond, as well as thesum advanced by them to protect the putni from sale. The lower Court decreedthe claim covered by the bond against the defendants Nos. 1 to 4, 17, 18, 19and 22, i.e., against persons who signed and made the bond, and those, whobeing co-parceners in the property mortgaged, by their presence andacquiescence were held to have taken part in the transaction. As to the rest ofthe claim, the lower Court held that the payments were voluntary, and that theplaintiffs acquired no charge upon the putni taluk in respect of them. Inappeal to this Court by the plaintiffs it was contended on behalf of Messrs.Gisborne & Co., respondents, that the payment made by them being the lastpayment made for the purpose of saving the taluk, was entitled to priority onthe principle applicable to bottomry bonds. This Court held that the decree regardingthe claim covered by the bond was right; but the learned Judges were of opinionthat the payments made by the plaintiffs to protect the sale of this land underthe putni sale law were not voluntary payments, but constituted a good chargeon this property, and it makes no difference for this purpose whether the suitupon the bond is followed by a decree as against all the defendants sued oragainst a part of them. They further directed an enquiry into the claim putforward by Messrs. Gisborne & Co. Now it seems to me that, in declaring thepayments made to save the putni as a charge upon the whole taluk and not onlyupon that portion which was found to have been mortgaged, the learned Judgesaffirmed the principle laid down in Enayet Hosseins case, and in directing anenquiry into the claim of Messrs. Gisborne & Co., they went farther in thesame direction by indicating their inclination of opinion that the rights ofthe parties claiming such a charge should be regulated by the principle ofsalvage lien. Unless that was the inclination of their opinion, it would havebeen unnecessary to direct a further enquiry into the claim of Messrs. Gisborne& Co., because that claim consisted of payments made subsequent co thosemade by the plaintiffs. The learned Judges were evidently inclined to theopinion that the payment alleged to have been made by Messrs. Gisborne &Co., thougn made last in point of date, should be deemed to have priority overthe earlier payments made by the plaintiffs. Referring to these cases, SirCharles Sargent, Chief Justice, and Mr. Justice Birdwood, in Achut Ram ChundraPal v. Hari Kunti 11 B. 313 said: "We think the Calcutta decisions towhich we have referred as recognizing a charge in those cases in which theassessment is paid by a part-owner to save the estate, are in accordance withequity, justice, and good conscience, and should be followed in thiscountry." The only case in which a doubt has been expressed as to theexistence of any such charge as that contended for is Kristo Mohinee Dasi v.Kaliprosono Ghose 8 C. 4C2. But that case was decided upon other points whichrendered it unnecessary to decide the question under our consideration. Mr.Justice Pontifex in delivering his judgment says : "Had it been necessaryto deal with this question, we would certainly have referred it to a FullBench, for we are not, as at present advised, at all satisfied as to thecorrectness of those decisions. They no doubt enunciate what at the first blushseems to be an attractive and catching equity, but it is difficult to see onwhat foundation such an equity could rest. Mr. Pugh has attempted to supportthe cases referred to, on the authority of certain Irish cases which aretreated as insurance cases. It is sufficient with respect to those cases to saythat there is a substantial difference between them and the present case. Inall of those cases the person who claimed the lien was previously interested inthe estate which his payment went to save. But in the present case A had nointerest in Bs share of the share originally held by A and B, and it may beremarked that none of the Irish cases go the length of establishing a personalliability." If what is enunciated in those cases at the first blush seemsto be an attractive and catching equity, then, unless it is shown that in somecases it results in injustice, there would be no substantial ground forrejecting it after it has been acted upon in our Courts for several years. Ifit had been simply an attractive and catching equity, the Legislature in thiscountry would not have adopted it in the recent; Bengal Tenancy Act, 1885. Ishall show hereafter that there is no substantial difference between the Irishcases referred to above and the present case. In order to give rise to theequity it is not necessary that A should have an interest in Bs share, but itwould be sufficient, as held by their Lordships of the Judicial Committee inNogender Chunder Ghoses case, if A has such an interest in the taluk owned byhim and B as would entitle A to pay the revenue due to the Government. Thefoundation for such an equity is, as I have already stated, that if it be notacted upon it would result in injustice in many cases, and its adoption doesnot operate unjustly in any conceivable case. This appears to me to be asufficient foundation for it, especially when the Legislature in this countryhas approved of it and enunciated it in Section 171 of the Bengal Tenancy Act,1885. It would be only reasonable to suppose that if it were not well founded,it would not have been adopted by the Legislature in the analogous case ofpayment of rent.

3. In the reference order it is stated that English Courtsof Equity do not seem to act upon such a rule as was laid down in EnayetHosseins case, and in support of this proposition Ex parte Young 2 v. and B.242, and Kay v. Johnston, 21 Beav. 536 have been referred to. In Ex parte Youngthe facts were these: Two of the part-owners of a ship became bankrupts andtheir share in the ship was sold by the assignee. Young for himself and otherpart-owners applied out of these sale-proceeds for a liquidated amount due tothem by the bankrupts, who were the managing owners, for freight and earningsafter deducting expenses on an account being taken. This application was basedupon the contention that the part-owners of: a ship, though tenants in common,are entitled to consider it as a chattel used in the partnership and as liableto be dealt with as partnership effects. This contention was overruled. Itseems to ma that this decision does not touch the question under ourconsideration. In Kay v. Johnston 21 Beav. 536, the plaintiff and thedefendants were joint-owners and in joint-occupation of a house. The plaintiffadvanced to the defendants some money which was spent in the house in decorationsand improvements. It was decided that the plaintiff was not entitled to a lienon the share of the defendant, in respect of money which was originally his,but was advanced to the defendant and laid out by him in the decorations andimprovements of the house. This case is distinguishable from the present case .Here the plaintiff was not compelled to pay any money for the protection of hisinterest in the house. It was paid quite voluntarily to improve the house. Suchvoluntary payment could not reasonably be held to be a charge on the house.These are the only two cases referred to in the course of the argument in orderto establish that English Courts of Equity have refused to act upon theprinciple laid down in Enayet Hosseins case. But it seems to me that they donot conflict with it. On the other hand, there are English and Irish caseswhich lend considerable support to the decision in Enayet Hosseins case. InHibbert v. Coke I.S. and Section 522 a tenant for life of real estates, under aWill spent money in finishing a mansion house which the testator had leftunfinished. In a suit for administering the trusts of the Will, the Courtdirected an enquiry whether it was for the benefit of all parties interestedthat the mansion house should be finished, and said if it was found for thebenefit of all parties interested that the mansion house should have beenfinished, and there was no personal estate applicable, the expense should be acharge upon the real estates. In Shearman v. British Empire Mutual LifeAssurance Company L.R. 14 Eq. 4 it was held that the premiums paid by amortgagor of a policy of insurance after he became bankrupt were in the natureof salvage money, and ought to be repaid with interest at Rs. 4 per cent, outof the money covered by the policy. In Kehoe v. Hales 5 Ir. 597 an encumbranceragreed to advance a sum of money to preserve the lands of K from eviction fornon-payment of rent, and took a security by deed affecting the lands of K andother lands for the repayment of the money so to be advanced. She afterwardspaid the rent and redeemed the lands of K. It was held that under thecircumstances she was entitled, as against a person who was an encumbrancer onthe lands at the time when they were redeemed, to be paid the sum advanced inpriority; and that as full effect could not be given to her security by deedshe was remitted to erlien. In Feather-stone v. Mitchell 11 Ir. 35 theplaintiff, a decree-holder, while the property of the judgment-debtor was inthe hands of a receiver for satisfaction of his decree, made advances forpayment of the head-rent with the sanction of the Court and thereby saved theproperty. It was found for some reasons, which it is not material to statehere, that he was not entitled as decree-holder to sell the property during thelife-time of the debtor. It was held that as a salvager, though not as adecree-holder, he was entitled to sell the property and realize his salvageadvances from the proceeds of the sale. In Locke v. Evans II Ir. 52 a sub-tenantwho had redeemed his landlords interest by advances for head-rent, filed abill for the sale of that interest, and subsequently made further advances forthe same purpose. It was held that these several advances constituted the firstcharge on the landlords interest in priority to incumbrances prior in date,and that the salvager was entitled to a sale for payment. In Hamilton v. Denny1 Ball and Beatty 199, a lease was granted to A and B as joint tenants. Bsmoiety of the property had been settled by him. A payment of the renewal finesmade by A was held to be a charge upon Bs settled share. In the matter ofTharp 2 Sm. & Giff. 579 Lord St. Leonards, referring to these Irish cases,said: "In Ireland it is a very common equity to have as a prior charge toall other encumbrances what is called salvage money : where a lease-holdestate, or an estate held for lives to which half a dozen people are entitledin succession, many of them being mortgagees according to certain priorities,the last man of all who is entitled after everybody being in possessionredeems, I may say, the estate by paying the landlord, who otherwise would haverecovered the estate and taken it from everybody; this payment is what iscalled salvage money. That is an established equity and a very proper equity.He that pays the salvage has a prior encumbrance to every other charge andinterest, because, so far as any interest is left to anybody beyond a charge,it is acquired by that payment in the shape of redemption money." Mr. Msher,the author of a well-known treatise on the Law of Mortgage, says in his recentedition "that the lien is also allowed in respect of advances in thenature of salvage, namely, such as are made for the redemption of property forrenewal fines or other payments made by way of salvage; and then whether he whopays the money fills the character of a trustee, joint tenant, tenant for life,or mortgagee or other creditor, and even though if be claimed to be a creditorhis debt is disputed, he has a lien on the estate or interest of the person forwhose benefit the payment was made in the property discharged," paragraph216. The learned author cites several cases in support of his opinion. He citesalso a recent case, namely, Leslie v. French L.R. 23 Ch. Div. 564, which to acertain extent conflicts with his opinion. In this last mentioned case there isthis peculiar feature, that the person who paid the money in the nature of,salvage had a prospect of becoming the sole owner of the property saved byright of survivorship. Conceding, however, that this case is against thecontention in favour of the existence of a lien, yet there is, as I have shownabove, a strong array of authorities in support of it. On the whole I am ofopinion that the question referred to us should be answered in the affirmative.I may notice, however, that there is another question which calls for decisionin these cases, namely, whether a bona fide purchaser for value without noticewould be affected by a charge of this kind if it exists. I am inclined toanswer this question in the negative, but as it has not been referred to us, Ido not think it necessary to say anything more upon it.

John Freeman Norris, J.

4. I concur in the judgment just delivered by my brotherMitter. I express no opinion upon the question whether a bona fide purchaserfor value without notice would be affected by a charge of this kind.

Arthur Wilson, J.

5. The question we are asked is, whether a part-owner of anestate who pays the whole Government revenue, thereby obtains a charge upon theshare of his co-owner to the extent of the latters share of the revenue. Thereis no statutory provision giving such a charge; if it exists, it must be byvirtue of a broad principle of equity. It is clear, I think, that there can beno difference between the right of a part-owner and that of a tenure-holder, orother person having an interest in the estate; and it is clear, I think, thatthere can be no difference between one who pays Government revenue, and one whomakes any other payment necessary to save the estate. And the contention beforeus has been in favour of the broad proposition that a payment of Governmentrevenue, or any other payment necessary to save the estate, if made by onehaving an interest which would be sacrificed by the loss of the estate, gives acharge on the estate for the money paid. We have to say whether any such ruleof equity is in force in this country.

6. In England it is, I think, now settled that no suchgeneral rule exists. A mortgagee, if he has to make payments necessary for thepreservation of the mortgaged property, or even in some cases for itsimprovement, may add them to the amount covered by his security. There are someother special cases, such as that of trustees, in which a like lien may ariseapart from contract. But even in the case of a mortgagee the right conceded byEnglish law is a very different one from that now contended for : according tothe English doctrine, as I understand it, the mortgagee of an undivided share ofan estate who paid the whole revenue to save his lien might add the amount tohis charge, thus increasing the extent of his lien on the share of his ownmortgagor, whereas by the doctrine now contended for he also acquires a newlien upon the shares of the other part-owners; and, except in the case of amortgagee and the few other excepted cases, payments of the kind in questiongive rise to no charge. I do not think it necessary to examine the Englishauthorities at large, for that has bean done and the law explained by Fry,L.J., in In re Leslie L.R. 23 Ch. Div. 552, and by the Court of Appeal inFalcke v. Scottish Imperial Insurance Go. L.R. 34 Oh. Div. 234 . In the latterof these cases the doctrine of what has been called salvage lien, acted upon insome Irish cases, is I think authoritatively rejected.

7. In this country it has long been well settled that onepart-owner, paying the whole Government revenue, may sue his co-owner forcontribution, though the precise process of reasoning by which the conclusionshould be arrived at was not always very satisfactorily stated. The matter wasexplained in the judgment of a Full Bench of this Court delivered by Peacock,G.J., Ram Buksh Chittangeo v. Modhusudan Pal Chowdhry B.L.R. Sup. 675 : 7 W.R.377. But it was settled law in the Court of Sudder Dewany that the right of thepart-owner in such a case was limited to a personal suit for contribution andcarried no charge on the estate. In Andrew v. Harris S.D.A. (1852) 697 it washeld that a part-owner of an estate could not recover from his co-owner arrearsof Government revenue which accrued due before the latter acquired his share,whereas if the doctrine contended for were true, he could do so to the extentof the value of his share. In Sone Kolee Kunwar v. Sheik Ezhar Hosscin S.D.A.(1855) 44 the same thing was again held. In Gobindpershad Pundit v. SoonduriKunwar Debia S.D.A. (1856) 867 it was held that a tenure-holder who paidGovernment revenue had no preferential lien on the zamindari. In Manik Mulla Chowdhrainv. Parbuttee Chowdhrain S.D.A. (1859) 515 the same Court in explaining that thecase before it fell under a different principle said: "We have always heldthat the decree for contribution which a proprietor in an ijmali estate obtainsagainst his co-proprietors is a personal decree, in the sense that it conveyedno lien on the estate binding against third parties, such as would have beenderived from a decree under Section 13, Regulation VIII of 1819."

8. In 1867 the case of Nogender Chunder Ghose v. Kamini Dosi11 M.I.A. 244 came before the Privy Council. The circumstances of the case weresomewhat complicated, and it is unnecessary to examine them for the presentpurpose; it is enough to say that before the Judicial Committee it was arguedthat the appellant, the representative of a mortgagee, was entitled as againstthe respondent, the representative of the mortgagor, to a lien upon themortgaged property for Government revenue paid to save the estate. What wasactually decided was that, as the suit was framed, the question could not beraised in that suit. But at page 258 of the report we find it said:"Considering that the payment of the revenue by the mortgagee will preventthe taluk from being sold, their Lordships would, if that were the sole questionfor their consideration, find it difficult to come to any other conclusion thanthat the person who had such an interest in the taluk as entitled him to paythe revenue due to the Government, and did actually pay it, was therebyentitled to a charge on the taluk as against all persons interested therein forthe amount of the money so paid." This dictum of the Privy Council has notthe weight of a decision, but it is of course entitled to the most carefulconsideration. In applying it the first thing obviously is to ascertain theprecise meaning of the observation. And upon the best consideration I have beenable to give to the subject I do not think we should be justified in applyingthe dictum of their Lordships to any case except one similar to the case beforethem, which was the case of a mortgagee. I think so first, because of thecontext in which the words I have cited occur. The learned Counsel, who arguedthe case for the appellant, according to the report, stated the question whichhe asked the Judicial Committee to answer in the affirmative as follows:"Whether the heir of the mortgagee paying arrears of Government revenue tosave the estate from sale for arrears which the mortgagors widow allowed it tofall into, is not entitled under Act No. I of 1845, Section 9, to a lien orcharge on the mortgaged estate." The dictum of their Lordships, which Ihave already cited, occurs on page 258 of the report. On the next page, and inalmost the next sentence, it is said: "There were two courses open to her(the plaintiff); she might have instituted a suit to enforce the mortgage andto tack to the mortgage the amount of the revenue paid by her to save theestate, and to have the estate sold to pay that amount, or she might haveproceeded under the ninth section of Act No. I of 1845." Thus anexamination of the report of the case tends in my judgment to show that theobservation of the Judicial Committee ought to be understood as applicable to acase such as the one before it, the case of the mortgagee. I am led to the sameconclusion by another consideration. Two of the decisions of the Court ofSudder Dewany on the subject in question were cited before the Privy Council.And to my mind it seems improbable that their Lordships can have intended by adictum, in a case argued only on one side, and without assigning any reasons,to overrule, or suggest the propriety of overruling, a current of decisions ofthe Court of Sudder Dewany, and introduce a rule of equity so broad as that insupport of which their words have been cited.

9. Since that decision of the Privy Council this matter hason several occasions come before this Court. In Enayet Hossein v. MuddunmooneeShahoon 14 B.L.R. 155 one of the sharers of an estate sued the personsinterested in the other shares and asked, amongst other things, to have itdeclared that Government revenue, which he had paid in respect of thedefendants shares and to save the estate, was a charge on these shares. Makbyand Mitter, JJ., held that it was so charged. Those learned Judges based theirdecision mainly upon the dictum of the Judicial Committee which I have cited. Ihave already given my reasons for thinking that that dictum is not applicableto such a case. In Bam Dutt Singh v. Horakh Narain Singh 6 C. 549 : 8 C.L.R.209 Mitter and Maclean, JJ., applied the same rule in a case in which theplaintiff, who held one mouzah of a revenue-paying estate under a ticca leaseand by bai-bil-wafa, sued the owner of another mouzah of the same estate inrespect of revenue that he had paid. The decision carried the matter somewhatfurther than the former decision had done. But I have no hesitation in thinkingthat it did so rightly if the former decision was right, for I can see nodistinction between the two cases. In Mohesh Chunder Banerji v. Ram ProsonoGhowdhry 4 C. 539 a similar charge was allowed, but that was the case of amortgagee, and I cannot say positively from the report whether a lien was givenon anything more than the subject-matter of the mortgage. In Kristo Mohini Dasiv. Kali Prosunno Ghose 8 C. 402 Garth, C.J., and Pontifex, J. expressedstrongly their dissent from the view taken by this Court on the matter inquestion, but it was not necessary in that case to arrive at any decision. InNobin Chunder Roy v. Rup Lall Das 9 C. 377 Mcdonell and Field, JJ., followedthe decision in Enayet Hossein v. Muddunmoonee Shahoon; the opinions of Garth,C.J., and Pontifex, J., in the case just mentioned, do not appear to have beenreferred to. In a very recent case in the Bombay High Court which has appearedsince the argument of this case, Achul Ram Chunder Pai v. Hari Kamti 11 B. 313Sargent, C.J., and Birdwood, J., expressed their concurrence in the same view,but the point was not strictly necessary for the decision of the case, for onthe facts the learned Judges held that no such rule as that in question foundplace.

10. Although there is no statutory enactment directlyaffecting the precise case now before us, which is that of a part-owner, thereare some enactments which have, I think, a material bearing upon the existenceof the general principle of equity contended for. In Regulation VIII of 1819,the Putni Regulation, Section 13, it is enacted that if a putni taluk is aboutto be sold for non-payment of the rent due to the zemindar, any of thetalukdars of the second degree may pay the amount and stop the sale. And"if the person or persons making such a deposit in order to stay the saleof the superior tenure shall have already paid the whole of the rent due fromhimself or themselves, so that the amount lodged is an advance from privatefunds, and not a disbursement on account of the said rent, such deposit shallbe considered as a loan made to the proprietor of the tenure preserved fromsale by such means, and the taluk so preserved shall be the security to theperson or persons making the advance, who shall be considered to have a lienthereupon in the same manner as if the loan had been made upon mortgage ; andhe or they shall be entitled, on applying for the same, to obtain immediatepossession of the tenure of the defaulter, in order to recover the amount soadvanced from any profits belonging thereto." Bengal Act VIII of 1869,Section 62, applied the provisions of the Regulation just cited to the case ofa tenure about to be sold under that Act, and the payment of the rent by"any one interested in the protection of the under tenure ." And nowby the Bengal Tenancy Act VIII of 1885, Section 171, somewhat similarprotection is given to "any person having in a tenure or holdingadvertised for sale" "an interest which would be avoidable upon thesale," who pays "the amount requisite to prevent the sale." I donot think any strong inference can be drawn from such enactments as these,either for or against the general principle contended for. I certainly thinknone can safely be drawn in favour of it; otherwise we should be led to thestrange conclusion that wherever the Legislature has made a protectiveprovision of this nature in a particular instance, we should have to infer fromthe very fact of its having been made that it is useless, because we shouldhave to infer the existence of a general principle governing the case andrendering the specific enactment unnecessary.

11. The provisions of Act XI of 1859 have, I think, a muchcloser bearing upon the question before us. Section 9 of that Act says:"The Collector, or other officer as aforesaid, shall at any time beforesunset of the latest day of payment determined according to Section 1ll of thisAct, receive as a deposit from any person, not being a proprietor of the estateor share of an estate in arrear, the amount of the arrear of revenue due, to becredited in payment of the arrear at sunset as aforesaid, unless before thattime the arrear shall have been paid by a defaulting proprietor of the estate.And in case the person so depositing, whose money shall have been credited inthe manner aforesaid, shall be a party in a suit pending before a Court ofJustice for the possession of the estate or share from which the arrear is due,or any part thereof, it shall be competent to the said Court to order the saidparty to be put into temporary possession of the said estate or share, or partthereof, subject to the rules in force for taking security in the cases of partiesin civil suits. And if the person so depositing, whose money shall have beencredited as aforesaid, shall prove before a competent Civil Court that thedeposit was made in order to protect an interest of the said person, whichwould have been endangered or damaged by the sale, or which he believed in goodfaith would have been endangered or damaged by the sale, he shall be entitledto recover the amount of the deposit, with or without interest as the Court maydetermine, from the defaulting proprietor. And if the party so depositing,whose money shall have been credited as aforesaid, shall prove before such aCourt that the deposit was necessary in order to protect any lien he bad on theestate or share or part thereof, the amount so credited shall be added to theamount of the original lien." The corresponding Section 9 of Act I of 1845was in similar terms, except that it did not contain the last clause aboutlien. It could not of course be contended that an enactment which purportsexpressly to confer a narrow and limited right, of necessity excludes a largerright, if the existence of the larger right is clearly established apart fromthe special enactment. But where the existence of a larger right is not clearbut highly doubtful, I think the express creation of the narrower right tendsstrongly to negative the existence of the larger. In Section 9 the Legislaturedealing with two classes of persons says that one of them shall have a personalright of suit, and that the other shall have a lien besides. I think theinference is that the Legislature intended the section to represent the law,and that seems to me to go far to negative the doctrine new contended for, bywhich both classes alike would have a lien. So too when in the same section itis said that if the holder of a lien pays the revenue, "the amount shallbe added to the amount of the original lien." I think the inference isthat that is the lien which the Legislature intended him to have, a lien on theinterest of his own mortgagor, not as now contended a general lien on all theinterests in the estate. I have not overlooked the fact that the case of apart-owner is not dealt with in Section 9, nor, except in a particularinstance, in Section 15, expressly dealt with at all. But the doctrine contendedfor is general.

12. The matter appears to me to stand thus: I think it issettled that according to the rules of equity in force in England, no such lienas that contended for exists. The same rule was consistently applied in theCourt of Sudder Dewany. The recent cases in this country, in which a differentview has been taken, have been based upon what seems to me a misapprehension ofthe meaning of the dictum of the Privy Council in the case referred to. Andthere are strong indications of an intention on the part of the Legislatureinconsistent with such lien. We are not, under these circumstances, in myopinion, at liberty to treat the matter as if it were res integra, and, underthe name of equity and good conscience, to adopt whatever rule we think mostlikely to work well. If we were, I should hesitate much before adopting such arule as that pressed upon us. In the tangle of interests which an estate inthis country presents-zamindari rights, tenures, and under-tenures withoutlimit, every one of them commonly held in co-ownership,, and every share ofevery interest perhaps subject to mortgages. I cannot pretend to foresee whatthe consequences may be of broadly laying down such a doctrine as we are askedto do. I am disposed to think it a safer course to leave the Legislature totreat the matter as it may think fit, dealing, as heretofore, with each classof persons as occasion requires, and conferring such liens and subject to suchrestrictions as may be deemed desirable., I should answer the question referredto us in the negative.

Henry Thoby Princep, J.

13. I concur with the judgment of Wilson, J.

Loftus Richard Tottenham, J.

14. I now feel constrained to concur in the view expressedin Mr. Justice Wilsons judgment. For, on the one hand, it is clear that thelaw of England does not recognize the lien which the plaintiff seeks toestablish in this case; and on the other hand, it was not recognized in thiscountry until the principle was affirmed in Enayet Hosseins case 14 B.L.R. 155and the decision in that case as well as those in which the principle has sincebean followed are based upon a dictum of the Judicial Committee in the ex parteappeal of Nogender Chunder Ghose v. Kamini Dasi 11 M.I.A. 241. I was myself aparty to one of the judgments of this Court in which effect was given to thatdictum--Mohesh Chunder Banerjee v. Ram Prosunno Chowdhry 6 C.L.R. 26. But I ambound to say that the further consideration which I have now had to give to thequestion has satisfied me that I too readily accepted that dictum as implyingmore than I now think their Lordships can have intended. The case was that of amortgagee, as was also that in which I was one of the Judges who affirmed theprinciple now in question. But I think now that it is at least extremelydoubtful, for the reasons stated by Mr. Justice "Wilson, whether theirLordships intended to commit themselves in that case to the opinion that aco-owner of an estate, by the payment of the Government revenue which he isbound by law to pay, thereby acquires a lien upon the whole estate of hisco-sharers for the amount paid, which he is by equity entitled to enforceagainst it after it has passed by sale to a stranger. The proposed equity is soattractive and has been so powerfully supported in Mr. Justice Mittersjudgment,, while it has also has been approved by such authorities as the HighCourts of Bombay and Allahabad, that it is somewhat difficult to me to resistit; but nevertheless I cannot quite persuade myself of its soundness. I would,therefore, answer the question in the negative.

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Mozaffer Hosain Shaha and Ors. vs. Kinu Ram Das (23.05.1887 - CALHC)