AJODHYA SINGH Vs. LALA JANNOO LAL

JUDGEMENT

(1.) One of the several proprietors of an estate brought a suit for the moharrari rent of his share against plaintiffs, defendants Nos. 1 and 2 and others and obtained a decree which was executed against the plaintiff alone. The plaintiff paid up the amount and obtained amicable contribution from all others of his co-judgment-debtors except defendants Nos. 1 and 2 and another, with regard to whom there is no dispute now. The plaintiff brought this suit for contribution against the unwilling defendants. The defendants Nos. 1 and 2 pleaded that they were the furzidars of one of the superior maliks and, having no interest in the moharrari tenure for which rent had been decreed, were not liable. The learned Sub-Judge gave effect to this plea and dismissed the suit against them. The learned District Judge in appeal by the plaintiff held that the case came within the purview of Section 69 of the Contract Act and decreed the suit without going into the question of fact whether the plea of benami was made out. It is contended on appeal before us that the learned Judge was wrong, that the rent decree was not res judicata between the plaintiff and the defendants and, therefore, the defendants were entitled to raise the question of their liability notwithstanding the decree and that the case must go back for a decision on the plea of benami. It is also contended that Secs.69 and 70 of the Contract Act have no application. The question of res judicata cannot arise in this case as the matter in issue in the rent suit was the joint liability of the several defendants of that case and the question in this case is the respective liabilities of several defendants amongst themselves and the parties are not the same, as the plaintiff does not claim through any one opposed to the defendants in the rent suit. The present suit is, however, based on the rent decree which may be taken as a part of the cause of action. It fixes the joint liability upon the plaintiffs and the defendants as between themselves on the one side and the decree-holder on the other. So far the decree is final and conclusive and must be taken as a settled fact. It is not open to the defendants to say that they ought not to have been made jointly liable in that case. All that they can say is that the amount of their respective liabilities has not been settled and as between themselves and the plaintiff the latter is liable to a greater extent if he had a greater share in the profits. That is not their plea, however: they say they ought not to have been made liable at all and some body else ought to have been made liable. We do not think they should be allowed to do this. If they had such a plea they should have raised it in the rent suit, see Siva Panda V/s. Jujusti Panda 25 M. 699.

(2.) In the case of Fateh Ali V/s. Gunga Nath Roy 8 C. 113 it was held that it was doubtful whether Secs.69 and 70 of the Contract Act are applied to a case of this kind as these Secs.seem to contemplate cases in which the party-making the payment was not himself jointly-liable. No reference was, however, made in this case to the judgment of Mr. Justice Markby in Mathoora Nath Chuttopadhya V/s. Kristo Kumar Ghose 4 C. 369, where Section 69 was held applicable to a case in which the purchaser of one portion of a mortgaged property, who paid the whole mortgage-decree, was held entitled to contribution from the purchaser of another portion of the mortgaged property.

(3.) In the case of Maharaja Manindra Chunder Nunay V/s. Jawahir Kumari Bibi 9 C.W.N. 670 : 32 C. 643, it was said of Section 69 that "it contemplates a case where the person who makes the payment is under no legal liability to make it and he pays the money for another person who is bound by law to pay." This case was, however, decided on the ground that the plaintiff purchased subject to the incumbrance which he paid off. So far, therefore, there does not seem to be any express decision against the application of Section 69 to the payment of a joint decree and on the other hand the decision in Mathoora Nath V/s. Kristo Kumar 4 C. 369 seems to favour the affirmative of the contention. There is no doubt that the wording of the section is open to the construction contended for by the learned Vakil for the appellants, but we do not think any hard and fast rule can be laid down excluding the operation of the section from a payment of a joint decree by one of the judgment-debtors. Every case must depend upon its own facts. In the present case the decree was by a fractional proprietor who could not by execution against the plaintiff alone imperil any interest other than that of the plaintiff, so that plaintiff cannot be said to have been interested in the payment of that part of the decree which was leviable from defendants Nos. 1 and 2 and cannot, therefore, recover under that section.