GOLLA KONDAMMA Vs. GOLLA CHINNA SUBBA REDDI

JUDGEMENT

(1.) The plaintiffs brought the suit for contribution against the defendants. Both the Courts have dismissed the plaintiffs suit on the ground that they are not entitled to contribution from the defendants. The plaintiffs have preferred this second appeal.

(2.) Pedda Subbareddi (1 plaintiff's husband), 1 defendant and one Golla Venkatasubba Reddi were brothers. In 1897 they divided their immovable properties, but did not divide their outstandings and some gold mohurs. Vonkatasubba-reddi brought O. S. No. 29 of 1913 on the file of the District Court of Cuddapah to recover his one-third share of the outstandings and gold mohurs against Pedda Subbareddi and Defendants Nos. 1 to 4. The District Court found that Rs. 7,118-14-8 was duo to Venkatasubba Reddi and passed a decree against the legal representative of Pedda Subbareddi for the whole amount and made the 2nd defendant, 1st defendant herein, jointly liable with them for Rs. 2,333-5-4 with interest thereon at 6 per cent. The plaintiffs herein claimed from the 1 defendant the amount in respect of which he was made jointly liable with them with costs and interest. Both the lower Courts found that there was no equity in favour of the plaintiffs and that Pedda Subbareddi was in possession of the outstandings of the family as the managing member and that he alone was accountable for the outstandings. The contention for the appellants is that the 1 defendant herein did not put forward in O. S. No. 29 of 1913 that he was in any way cheated by Pedda Subbareddi and that he got half of the outstandings available in 1913 and he does not now allege that he was in any way cheated by Pedda Subbareddi and, therefore, he ought to contribute his share of the amount for which he was made jointly liable along with Pedda Subbareddi's legal representatives.

(3.) The main argument of Mr. Krishnaswami Iyer is that there was a partition of the outstandings in 1913 between Pedda Subbareddi and the 1 defendant and he is not now entitled to go behind that partition arrangement unless he could show that there was fraud on the part of Pedda Subbareddi. From the findings of the learned District Judge in O. S. No. 29 of 1913 it is clear that the family outstandings amounted to Rs. 21,000 in 1904. In 1913 the outstandings amounted only to Rs. 14,000 and the 1 defendant got only half of that, namely, Rs. 7,000. Pedda Subbareddi, who was the managing member of the family, was left in charge of the collection of the outstandings from 1904. The question is whether in the circumstances the plaintiffs, who are the legal representatives of Pedda Subbareddi, can in equity claim from the 1 defendant contribution in respect of the amount he was made jointly liable with them. The right to contribution is an equitable one and the person against whom relief is sought is entitled to show that he is not liable for contribution. As observed by the learned Judges in Sive Panda V/s. Jujuiti Panda [1902] 25 Mad. 599: Without impugning the propriety of the judgment, it will, of course, be open to the party from whom contribution is sought to plead and establish that as between the joint debtors, the plaintiff is solely liable for the debtor or that he is not equally liable with the plaintiff.