GOPI NATH MUNSHI Vs. CHANDRA NATH MUNSHI

JUDGEMENT

(1.) These two appeals arise out of two suits for contribution. The plaintiff and the defendants are owners of five different jotes. The landlord obtained decrees for rent in respect of these five jotes. In execution of one of these decrees one of the jotes was put up to sale on the 29th of March 1909 and was purchased ostensibly by defendant No. 4 but really for the plaintiff for Rs. 1,600. The sale was confirmed on the 7th November 1909. On the 2nd March 1911 the landlord took out Rs. 564 14 annas 9 pies out of the sale proceeds in satisfaction of his decree for rent in respect of that jote. In execution of the decrees obtained by the landlord in respect of the four other jotes, the landlord attached the balance of the sale-proceeds and withdrew a sum of Rs. 963 3 annas 9 pies on the 24th February 1912. The sale of the 1st jote, however, was set aside on the 9th December 1912. The plaintiff, thereupon, attempted to get a refund of the amount realised from the landlord but failed, as he was one of the judgment debtors. The plaintiff then brought these suits for contribution against defendants Nos. 1 and 2. No relief was claimed against defendant No. 3 as he agreed to pay his share amicably to the plaintiff. The Court of first instance found that the defendants were benefited by the payments or rather by the satisfaction of the decrees, and gave a decree to the plaintiff. That decree was set aside by the learned Subordinate Judge on appeal; and the plaintiff has appealed to this Court.

(2.) Now the plaintiff and the defendants were jointly made liable under the decrees for rent and the joint liability having been discharged with the money of the plaintiff, there is no doubt that the defendants have obtained the benefit of the same. The learned Subordinate Judge held against the plaintiff, on the ground that the payment of Rs. 1,600 into Court was not lawful and that the character of the payment was not altered by the subsequent setting aside of the sale. This has reference to the fact that the plaintiff, being one of the judgment-debtors could not, having regard to the provisions of Section 173 of the Bengal Tenancy Act, purchase at the sale. It appears, however, that the plaintiff as well as the defendants bid for the jote and that it was the plaintiff s bid that was accepted. The purchase by the plaintiff was not void, but was only voidable. However that may be, after the sale was set aside, the money deposited became the money of the plaintiff alone and we do not see why, after the sale was set aside, the money should not be treated as having been lawfully paid, or appropriated in payment of the decrees for rent.

(3.) It is contended on behalf of the respondents that it is not in every case that a man has benefited by the money of another that an obligation to repay that money arises. Reference was made to the cases of Ram Tuhul Singh v. Biseswar Lall Sahoo 2 I.A. 131 : 23 W.R. 335 : 15 B.L.R. 203 : 3 Sar. P.C.J. 477 : 3 Suth. P.C.J. 136 Ruabon Steamship Company Limited v. London Assurance (1900) A.C. 6 at p. 15 : 69 L.J.Q.B. 86 : 81 L.T. 585 : 48 W.B. 225 : 9 Asp. M.C. 2 : 5 Com. Cas. 71 : 16 T.L.R. 90 and Abdul Wahid Khan v. Shalukha Bibi 21 C. 496 at p. 504 (P.C.) : 21 I.A. 26 : 6 Sar P.C.J. 390 : Rafique & Jacksons s P.C. No. 131 : 10 Ind. Dec. (N.S.) 961. These eases, however, are distinguishable. The first case was not a case between co-sharers, nor a suit for contribution. There was no obligation to pay any joint debt in that case. In the case of Ruabon Steamship Company Limited v. London Assurance (1900) A.C. 6 at p. 15 : 69 L.J.Q.B. 86 : 81 L.T. 585 : 48 W.R. 225 : 9 Asp. M.C. 2 : 5 Com. Cas. 71 : 16 T.L.R. 90 the Lord Chancellor, referring to the observations made by the learned Judges in the cases referred to in the judgment, observed that "the liability of each of the persons held to be bound to contribute is assumed to exist either by contract or by some obligation binding them all to equality of payment or sacrifice in respect of that common obligation. But this is the first time in which it has been sought to advance that principle where there is nothing in common between the two persons, except that one person has taken advantage of something that another person has done, there being no contract between them, there being no obligation by which each of them is bound and the duty to contribute is alleged to arise only on some general principle of justice that a man ought not to get an advantage unless he pays for it." The Lord Chancellor referring to the case of Dering v. Earl of Winchelsea 787, 1 R.R. 41 : 1 Cox. 318 : 29 E.R. 1184 stated that the principle established in that case was universal and that the right and duty of contribution was founded on doctrines of equity and that it did not depend upon contract. His Lordship further said: "if several persons are indebted and one makes the payment, the creditor is bound in conscience, if not by contract, to give to the party paying the debt all his remedies against the other debtors." "So in the case of land descending to co-parceners subject to a debt, if the creditor proceed against one of the co- parceners, the others must contribute."