1. We think that, for the purposes of this reference, both the eases must be considered as governed by authority in this Court.
2. The Full Bench case of Bam Bux Chittanjeo v. Moodhoosoodun Paul Chowdhry (B. L. R., Sup. Vol., 675; s.c, 7 W. R., 377) clearly shows, that, in the case of co-sharers of an estate, where one co-sharer pays the whole revenue, he cannot recover contribution in a Small Cause Court from his co-sharer; co-sharers paying revenue to Government are not co-contractors in any sense, and therefore the principle laid down in the Full Bench case and in other subsequent cases with regard to them, is perfectly plain.
3. But the case of joint tenants who hold a tenure under a zemindar or other landlord at an entire rent, seems to fall within a different principle. Such co-tenants are to all intents and purposes co-contractors, as much so as persons who jointly purchase goods or borrow money; and if one should he compelled by the landlord to pay the whole rent, there seems no reason why, in accordance with the English and the Civil law, the others should not be bound by contract to repay him their proper proportions. This principle was acted upon by the Full Bench in Shaboo Majae v. Noorai Moollah (B. L. R., Sup. Vol., 691), in the case of a principal and surety, where it was held, that a surety having paid the debt could sue the principal in the Small Cause Court. But this distinction does not appear to have been recognized in later cases, and we have ascertained that, in an unreported case, Khethermomey Dossee v. Madhub Chunder Ghose (No. 726 of 1878, unreported), beard on the 20th June 1878 by Markby and Prinsep, JJ., where the circumstances were similar to the present, it was held, apparently on the authority of Shaboo Majee's Case (B. L. R., Sup. Vol., 691), that a suit for contribution would not lie in the Small Cause Court.
4. We find that a different view has been taken of such cases by the Madras and Allahabad High Courts [see Nath Prasad v. Baij Nath (I. L. R., 3 All., 66) and Govinda Muneya Tiruyan v. Bapu (5 Mad. H. C. Rep., 200)], and having regard to the number of petty cases of this nature, which must occur in the mofussil, we think that, on some fitting opportunity, it would be desirable that the subject should be reconsidered by a Full Bench of this Court. As we have not had the advantage in this case of hearing counsel on either side, we think it right to follow the rulings of this Court, and to confirm the judgment of the lower Court.
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