Reuben, J.:— This appeal is directed against a decision of the Subordinate Judge, Second Court, Gaya, affirming a decision of the Munsif, First Court, Gaya, in a suit for contribution. The appellant was defendant 1 in the suit. In village Dardha, under the proprietress Sayeeda Khatoon, there is a dar mokarari tenure comprising a share of eight annas Dokhta of the village. It is held in the following shares: (1) Plaintiff's two annas; (2) defendant 1, one anna, and (3) defendants 2 and 3 five annas. The one anna share was formerly held by Tufail Ahmad (defendant 5), from whom defendant 1 acquired it by purchase in 1345 Fasli. Darmokarari rent having fallen in arrears, the proprietress sued and obtained a decree against the plaintiffs for the arrears of rent for the years 1342 to 1345 Fasli. Defendant 1 was not impleaded in the rent suit. The plaintiffs deposited Rs. 1,945-7-0 towards satisfaction of the decree and, the other co-sharer dar mokararidars having paid their quota of the dues in accordance with their respective shares, brought this suit for contribution against defendant 1. On the allegation that defendant 1 in his sale-deed undertook to pay the arrears for 1342, they sought contribution from defendant 1 in respect of that year also, but in the alternative, sought contribution for this year from Tufail Ahmad.
2. Defendant 1 resisted, disclaiming liability on the ground that he was not a party to the rent suit, and further that, in the course of the execution of the decree for arrears of rent, his share of one anna was exempted from sale on an objection under O. 21, R. 58, filed by him. Tufail Ahmad being dead, his legal representatives have taken the defence that defendant 1 having undertaken the liability in the sale-deed, was liable to contribute and not Tufail Ahmad.
3. The learned Munsif accepted the defence of the representatives of Tufail Ahmad and, on considerations of equity, found defendant 1 liable to contribute in proportion to his share in the darmokarari interest. In view of the fact that the rent decree was not passed against him, and that his one anna share was exempted in the execution proceedings, he considered that Sections 69 and 70 of the Contract Act, have no application. On these findings, he proceeded to decree the suit in full. The Subordinate Judge in appeal has based the decree against defendant 1 on Section 43 of the Contract Act. Like the Munsif, he has relied upon the sale-deed as imposing on defendant 1 the liability to contribute in respect of the year 1342. He has pointed out that the Munsif inconsistently with his findings decreed the suit against the representatives of Tufail Ahmad, but he found himself unable to interfere as there was no appeal or cross-objection by them before him. Three contentions have been pressed before us: (1) That defendant 1 is not liable to contribute at all, (2) that be is not liable to contribute in respect of the year 1342, and (3) that he is not liable to contribute in respect of the decree for costs in the rent suit.
4. The first contention is rested on the decision of Das. J. in Kamaleshwari Prosad v. Jagarnath, A.I.R (7) 1920 Pat. 155 : (56 I.C 949). In that case, the landlord had obtained a decree for arrears of mokarari rent for the years 1315 to 1318 Fasli against two sets of tenants who formed defendants second and third parties in the subsequent suit for reimbursement. The plaintiff in the reimbursement suit, who was a co-sharer mokararidar, and who apparently bad not been impleaded in the rent suit paid Rs. 1067-4-9 in satisfaction of the decree and sued for reimbursement. Defendant 1 in the suit, who was a co-sharer mokararidar to the extent of two annas, having purchased this share on 8th September 1909, and was the mortgagee in possession as to three annas share from before the period covered by the rent suit had not been in pleaded as a defendant in the rent suit. His Lordship held that defendant 1, not being a party to the decree, was not bound to pay it as to the two annas share, but, as the mortgagee in possession of three annas, he was to that extent bound to pay it and, therefore, to this extent the plaintiff, subject to limitation, was entitled to succeed against him. That was a suit to which Section 69 of the Contract Act, in terms applied. Under this section reimbursement is sought from the persons “bound by law to pay.” Having found that as regards the two annas share the defendant 1 was not liable under S. 69, Das, J. did not investigate whether he could be made liable under any other provision of the law.
5. It is necessary to consider further the applicability of S. 69 to the present case, as Mr. Sanyal for the respondent-plaintiffs has urged strongly that this section applies. I reproduce below the provisions of this section:
“A person who is interested in the payment of money which another is bound to pay, and who therefore pays it, is entitled to be reimbursed by the other.”
Apparently, the section makes a distinction between a person interested in the payment of money and a person bound by law to pay it. The word “reimbursed” is significant and contrasts with the words “contribute” and “contribution” in S. 43, which empowers each of two or more joint promisors to compel every other joint promisor to contribute to the performance of the promise. Contribution is between persons equally bound, reimbursement between a person interested in payment and a person bound to pay. My reading of S. 69 is in accord with Manindra Chandra v. Jamahir Kumari, 32 Cal. 643 : (9 C.W.N 670), Jinnat Ali v. Fateh Ali, 15 C.W.N 332 : (9 I.C 219) and Biraj Krishna v. Purna Chandra, I.L.R (1939) 2 Cal. 226 : (A.I.R (26) 1939 Cal. 645). The same view was expressed by a Bench of the Madras High Court in Jagapatiraju v. Sadrusannama Arad, 39 Mad. 795 : (A.I.R (3) 1916 Mad. 980), which cited a still earlier decision of the Calcutta High Court reported in Futteh Ali v. Gunganath Roy, 8 Cal. 113 : (10 C.L.R 20). In the case before us, the plaintiffs were judgment-debtors in the rent decree and, therefore, bound by law to pay it. Hence, they cannot ask for reimbursement under S. 69, particularly from a person who was not himself a party to the decree.
6. Coming back to the applicability of Section 43 of the Contract Act, the learned counsel does not cite any authority other than Kamleshwari Prasad v. Jagarnath, A.I.R (7) 1920 Pat. 155 : (56 I.C 949) (ante) in support of his contention. Rent is a matter of contract between the landlord on one side and the tenant on the other. It has been faintly suggested that the liability of the tenants in this case was not joint. This is a question of fact which should have been raised in the pleadings. The proceedings in the Courts below seem to have been on the basis that the liability for rent was in this instance a joint one and the appellant cannot be allowed to change his position at this stage. The appellant and the plaintiffs, therefore, are in the position of joint promisors as regards the payment of rent and She plaintiffs are entitled to a decree for contribution under S. 43.
7. Coming to the second point, I think the appellant is entitled to succeed. It is not clear from the judgment of the Subordinate Judge whether in fact the appellant under the terms of the sale-deed bound himself to pay the arrears of rent for 1342 Fasli. It is not necessary for us to go into the question, however. Whether he bound himself to do so or not, this was a matter between him and his vendor. The plaintiffs were not a party to that agreement and, therefore, in respect of the year 1342 Fasli, the plaintiffs on one side and the appellant on the other cannot be regarded as co-promisors. That relationship existed for that year between the plaintiffs and Tufail Ahmad. Hence the decree unintentionally passed by the Munsif against the legal representatives of Tufail Ahmad was correct.
8. For the third contention reliance is placed on Kanto Mohan v. Gour Mohan, 45 C.W.N 357. The point of the decision is that the contribution sought under S. 43 must be in respect of the performance of the joint promise, and costs imposed by the Court in legal proceedings have, apart from special provision regarding them in the agreement, nothing to do with the promise. That decision is merely an authority that S. 43 does not generally apply to recovery of contribution in respect of costs imposed by a Court of law. It does not exclude contribution on equitable considerations. In fact, their Lordships, before refusing the plaintiff before them contribution in respect of costs incurred by him in legal proceedings carried by him to the Privy Council, considered whether on general equitable principles the plaintiff's co-debtors should be made to contribute towards those costs. The test adopted by a Division Bench of this Court in Bisambhardeo Narayan Singh v. Hitnarayan Singh, A.I.R (23) 1936 Pat. 49 : (15 Pat. 219) is laid down in the following extract from the judgment of Fazl Ali, J. (as he then was):
“It appears to me that the decision of Sir Dawson Miller in the last mentioned case, Mahabir Prasad…Plaintiff v. Darbhangi Thakur…Defendant ., A.I.R (6) 1919 Pat. 165 : (4 Pat. L.J 486) fully meets the points which have been raised before us in the present appeal and having regard to the clever and well reasoned decision of his Lordship we have no hesitation in adopting his view for the purpose of deciding the present case. In that case the learned Chief Justice expressed his views in these terms:
‘It seems clear therefore that the doctrine of contribution is well recognised in this country and that the only cases in which it will not be enforced are those in which a liability arises out of a joint wrong or where the equities of the case demand that the plaintiff should not recover as where the party sued was merely a formal defendant in the previous suit and not personally interested in result of it.’
“These remarks merely emphasise the fact that the claim of the plaintiff being based not upon any contract but upon the principle of equity cannot be enforced against a person against whom it will be inequitable to enforce it. Keeping this principle in view we have to decide whether there is any equity in favour of defendant 5 who is the appellant in Appeal No. 1207.”
Considering the facts of the present case, I do not see any equity in favour of the appellant. The appellant and the plaintiffs were equally in the wrong in withholding the dues of the pro-prietress on account of rent. But each of them were responsible for their own share of the rent and it was not a case of joint wrong. So far as the plaintiffs were in the wrong they have suffered in being mulcted for costs to the extent of their share of the arrears of rent. There is no reason why they should be penalised further by bearing the costs in respect of the arrears due from the appellant.
9. In the result, I would allow this appeal in part and direct that the decree of the Munsif be modified so as to relieve the appellant-defendant 1 of liability in respect of the year 1342 as regards rent, interest and other incidental expenses.
10. The appellant will get costs proportional to his success.
11. Sinha, J.:— I agree.
V.R.B
12. Appeal partly allowed.