JINNAT ALI Vs. FATEH ALI MOBBAR CHOWDHURY

JUDGEMENT

(1.) A sum of Rs. 1,587-15 was recovered from the plaintiffs as being the jotedars of a certain jote in the Noabad Mahal of the District of Chittagong. The money was realised in execution of a certificate under the Public Demands Recovery Act, It represented the rents of the years 1904-1907. But the title of the principal defendant to an eight annas share in the jote having been declared, in Title Suit No. 45 of 1906, the plaintiffs sued him for a moiety of the sum recovered from him by certificate process. The first Court declined to allow contribution. The lower appellate Court has reversed that decision.

(2.) The point for determination in this second appeal is whether a person in wrongful possession of property can bring a suit for contribution against the person really entitled? The learned Vakil for the defendant-appellant argues that the certificate was not directed against his client, who derived no benefit from the plaintiff s payment of the sum mentioned therein. The argument involves a consideration of Sections 69 and 70of the Contrast Act. The defendants title to an eight annas share in the jote having been declared in the title suit, it must be taken that he was a co-sharer of the plaintiffs in the jote. It is true the certificate was not against the defendant and hence could not be enforced against him, but the plaintiffs, on satisfying it, would, according to the principles formulated in Section 43 (para. 2) of the Contract Act, have been entitled to sue the defendant for contribution. At the time of payment by the plaintiffs, however, they kept the defendant out of possession denying his title.

(3.) Section 69 of the Contract Act would apply where the payment is made for another person who is bound by law to pay. As already stated, though the defendant, being a co-sharer, was under an obligation to pay, the certificate was not against him, and he was kept out of possession of his share by the plaintiffs. Moreover, the words another person" in the section seem to indicate that the person making the payment is himself under no legal liability to make it. According to law, co-sharers are not only jointly but severally liable for rent. When, therefore, the plaintiffs paid up the rent, they may be considered to have done so in the discharge of their own liability for rent and not in satisfaction of the rent due by the defendant whom they had kept out of possession on denial of.