Kangal Ch. Pal v. Gopi Nath Pal

The Judgment of the Court was as follows:—

This appeal is preferred by Defendants Nos. 6 and 7 in a suit for contribution. The Plaintiffs in the suit held a two-anna odd share in a darputni tenure. The putnidar sued for arrears of rent due in respect of the years 1313 to 1316. The Defendants in that suit were the Defendants Nos. 5, 6 and 7 in the present suit. The putnidar obtained a decree and in the execution the darputni was sold in September 1911 and purchased by the present Defendant No. 4. On the 25th October 1911 the Plaintiffs deposited in Court the amount of the decree, namely, Rs. 4,180, together with the statutory compensation of five per cent on the purchase money due to the auction-purchaser, Rs. 285, and in consequence the sale was set aside. The Plaintiffs allege that in this connection they incurred costs amounting to Rs. 211-5-10. The suit was brought for contribution from the co-sharers in the darputni in respect of the three sums I have stated.

In the course of the suit, Defendants Nos. 1 and 4 came to terms with the Plaintiffs and a petition of compromise was filed. Defendants Nos. 8 and 11 died and their heirs were not brought on the record. A decree for contribution was made against Defendants for Nos. 5, 6, 7, 9 and 10. Defendants Nos. 5, 9 and 10 have not appealed.

The first point taken on behalf of the Appellants is that the Appellants and the Defendant No. 5 being only some of the co-sharers in the darputni, the decree obtained against them was only a money decree, that the darputni could not be sold in execution but only the right, title and interest of the Appellants and the Defendant No. 5, and that the payment made by the Plaintiffs for the purpose of having the sale set aside was simply officious. The answer is that, rightly or wrongly, the darputni was in fact sold in execution. The Appellants and the Defendant No. 5 are the present representatives of the original darputnidars. Other persons including the Plaintiffs and other Defendants on the record hold shares in the darputni acquired from the grantees of the lease or their successors. The putnidar has refused to recognise them on the ground that the lease forbade alienation. He brought a suit for ejectment on that ground which we are told was unsuccessful but neither the judgment in the suit nor the lease is before us. In the circumstances, however, it is quite unnecessary for us to form or to express any opinion on this question. The case of Suchand v. Balaram , where the facts were similar shows that a suit for contribution will lie in such circumstances. Separate judgments were delivered in that case but though the learned Judges gave different reasons they came to the same conclusion. The Chief Justice (Sir Lawrence Jenkins) upheld the decision of the Court below under sec. 70 of the Contract Act. Mr. Justice Doss was of opinion that the case came more properly within the terms of sec. 69. With great respect we prefer the view expressed by the Chief Justice which also accords with the view expressed in Jognarain v. Badri Das . The case of Batuk Nath v. Bepin Behary cannot be regarded as a decision to the contrary because the case turned on other questions and the applicability of sec. 69 was assumed without being considered or discussed. In the case before us, the Appellants were no doubt bound by law to satisfy the decree obtained against them but it can hardly be said that after the sale of the darputni they were bound by law to make the payments necessary for the purpose of having the sale set aside. There is that difficulty in the way of applying sec. 69. No difficulty attends the application of sec. 70. Nobody suggests that the payments made by the Plaintiffs were not made lawfully, or that the Plaintiffs intended to make them gratuitously. Their interest in the tenure, which is admitted by the Appellants, is an answer to the argument that they acted officiously. In our opinion this ground of appeal fails.

The second point taken is this. It is, established that out of the sum deposited to set aside the sale Rs. 2,000 was deposited by the Defendant No. 15. The decree in the rent suit was, as we have said, for the arrears of rent due in respect of the years 1313-1316. From 1313 to 1315 the darputni had been in the possession of the Defendant No. 15 as ijaradar. It was stipulated in his lease that he should pay the putnidar his dues. He was responsible therefore in the first instance for the rent due for that period. He has himself a small share in the darputni and the Appellants contend that they are entitled to the benefit of the payment made by him. We are of opinion that this contention should prevail. Whether he was moved by a belated sense of duty or whether he acted at the instance of the Plaintiffs or some other reason, the payment may well be regarded as a payment made in discharge or part discharge of obligations which he had neglected. The Appellants therefore will receive credit out of this sum for an amount proportionate to their share in the darputni.

The third point taken is that the Appellants should receive credit in respect of a further sum of Rs. 1,450 sail to have been deposited by all the shareholders with the father of Defendants Nos. 1-4 for the purpose of satisfying the landlord's decree. The point, however, was not taken, or at any rate was not insisted on in the Court below and the material facts have not been sufficiently elucidated. The contention must therefore be rejected.

One point remains. The learned Subordinate Judge reduced the amount claimed by the Plaintiffs on the score of costs to Rs. 20 and as to that no question is raised. The decree, however, makes the Appellants liable to contribute towards the statutory compensation. They contend that in that respect the decree is wrong. We were referred to Suchand's case aldeady cited. There Mr. Justice Doss dealing with the matter under sec. 69 of the Contract Act no doubt held that statutory compensation should be excluded from the reckoning. It will be observed that the Chief Justice merely said that the materials before the Court were insufficient for a decision and that the amount at stake was so trifling that it would not be profitable to direct a further enquiry; In the present case there is no doubt as to the facts and if the case falls within sec. 70, as we think it does, there is no difficulty. The contention put forward for the Appellants therefore fails.

In the result the decree of the Court below will be modified in accordance with our decision on the second point above dealt with. In other respects it will be confirmed. The parties will bear their own costs in both Courts.

N.G