LAL MOHAN THAKUR Vs. NANDA LAL

JUDGEMENT

(1.) This appeal is directed against a decree by which the District Judge, in reversal of the decree of the Court of first instance, has dismissed a suit for contribution. The plaintiffs and the second and third defendants are the joint proprietors of the residuary share of an estate Sahia, which bears No. 1211 on the Revenue Roll of the Collector of Shahabad. This residuary share comprises several villages and the aggregate Government revenue payable in respect thereof is Rs. 564-10-6 annually, together with Road and Public Works Cesses to the extent of Rs. 76-5-0. The plaintiffs allege that the defendants made default in the payment of revenue and cesses, with the result that they were driven to pay the same so as to save the property from inevitable sale. They now seek contribution from the defendants. The substantial question in controversy between the parties upon which the two Courts below have differed, relates to the principle upon which the respective liability of the parties is to be determined. It is necessary to mention at this stage that the different villages comprised in the residuary estate have become vested in different persons who are parties to this suit. As they are not in possession, each of the same share in all the villages, their respective liability to pay the Government revenue cannot be specified as a defined share of the total revenue. The liability of each, it is not disputed, must be proportionate to the assets of the land allotted to him. The question in dispute relates to the point of time with reference to which the assets are to be determined. The plaintiffs contend that the assets to be taken as the basis of contribution, are the assets upon which the Government revenue was fixed. The defendants contend, on the other hand, that the assets to be accepted as the basis of calculation, are the assets as they stand at the time of default in payment of Government revenue. The contention of the plaintiffs found favour with the original Court, while that of the defendant met with acceptance from the District Judge. In our opinion, the contention of the plaintiffs is well-founded and must prevail.

(2.) The Government revenue is fixed in perpetuity, and was based upon the assets as they stood at the time of the Settlement. In the case before us, the assets were determined, village by village, and the revenue proportionate to the assets of each village was also calculated, although the proprietor of the entire estate was made liable for the aggregate amount of revenue. The village?, as already stated, have, in course of time, become vested in different individuals. The question arises, if default is made by one of these persons, and the sale is averted by another, is the extent of the liability to be determined with reference to the assets on the basis whereof the revenue was calculated or upon the assets at the tim6 of the default? It is obvious that if the present assets be adopted as the basis of calculation, grave injustice may be done to those amongst the proprietors who have improved the condition of the properties vested in them, by their skill, capital or labour. According to the defendants, the liability of the proprietors inter se mast be adjusted from year to year. If a proprietor has by successful litigation increased his rent roll, another proprietor who has been less diligent or possibly less adventurous, at once becomes, entitled, on this theory, to bear a smaller share of the burden of the Government revenue. Again, if one proprietor judiciously lays out his capital, and thereby increases the assets of his village, his fellow-proprietor, who has taken no risk, finds himself in a position to transfer a portion of his burden to the other. To take another illustration, if the proprietor of one of the villages has the misfortune to lose a portion of his lands by diluvion (as has possibly happened in the case before us) or if part of his land has become sandy and uncultnrable or has relapsed into jungle, he can claim to throw the burden of revenue upon his fellow-proprietors who have in no way profited by the calamity which has befallen him and whose assets have remained unaltered from year to year. If the contention of the defendants be adopted, it would thus furnish an inducement to the less prosperous and successful proprietor systematically to make default in the payment of revenue, with the result that his honest fellow-proprietor must save the estate with his own money, and then establish the extent of his right of contribution by proof of assets of villages, which are not in his possession, and of the condition whereof he has prima facie no knowledge. This process must be repeated from year to year, and in every successive suit for contribution there must be an elaborate inquiry as to the assets during the particular year in which the default has been made. We are unable to hold that the principle thus put forward by the defendants is consistent with justice, equity and good conscience, which, after all, must guide the Court in adjusting the respective liabilities of joint owners of properties in contribution suits. On the other hand, the view maintained on behalf of the plaintiffs does not lead to any injustice. The assets of every village, with reference to which the revenue, fixed in perpetuity, was originally assessed, is known. The person, into whose hands a particular village passes, knows definitely the amount of revenue, which, as between himself and his fellow-proprietors, he may be called upon to contribute. If, by his diligence, skill, foresight or capital, he successfully increases the assets of the village vested in him, he does not, on the mere ground of increase of assets, become liable to contribute a larger share of the revenue than before. In the same manner, if, to his misfortune, his assets are diminished, he cannot justly call upon the other proprietors to bear a portion of the burden which hitherto had been justly borne by him. Bat it has been suggested by the learned Vakil for the defendants that Section 10 of Regulation I of 1793, as also Sections 5 and 9 of the Estates Partition Act (V of.1897 B. 0.), militate against this view. The statutory provisions, mentioned are, however, of no real assistance to the defendants, for no question of permanent separation or apportionment of the revenue arises in the cise before us. Nor do the decisions in Poorno Chunder v. Kishen Chunder 5 W.R. 112 and Jugobundoo Roy v. Fyez Buksh 8 W.R. 166 to which reference was made at the bar, throw any light upon the matter; the Court was not called upon in those cases to consider the point of time with reference to which the assets are to be determined for purposes of contribution. For the reasons we have explained, we are of opinion that, wherever, as here, information is available, the assets accepted as the basis for assesment of the revenue, should also be adopted as the basis for purposes of contribution. We are not now called upon to consider what basis should be adopted in cases where such information is not forthcoming; in cases of that description, the Court may possibly assume, in the absence of evidence to the contrary, that the assets have remained unaltered and thus base the calculations upon the present assets.

(3.) We may add that a question appears to have been raised in the primary Court, and possibly also in the Court of appeal below, as to the admissibility of registers produced from the Collectorate. We are satisfied that there is no substance in the objection. The-registers are public documents, and give details as to the areas of the different villages and the Government revenue charge able thereon at the time of the Settlement though it may not be possible to specify with absolute certainty the purpose for which the measurements were made and the registers prepared.