ANT RAM Vs. MITHANLAL

JUDGEMENT

(1.) 1. This is a second appeal by a plaintiff, whose suit to recover from the two defendants, his own brothers, a sum amounting to Rs. 340, after having been decreed by the Court of first instance, has been decreed in part only by the lower Appellate Court. The sum covered by this appeal is Rs. 190. On behalf of the defendants-respondents a peliminary objection was raised to the effect that the cognizance of this appeal is barred by Section 102 of the Code of Civil Procedure. We have to determine whether the suit brought by the plaintiff Ant Ram was or was not one of a nature cognisable by a Court of Small Causes. It was a simple claim for money to an amount falling short of Rs. 500 and therefore fell within the cognizance of a Court of Small Causes, unless excluded by some Article in the Second Schedule of the Provincial Small Causes Courts Act (IX of 1887). There is really one Article alone (Article 41) about which there can ba any substantial argument. Something has been said about Articles 33 and 42, but they are so clearly inapplicable that we need not mention them further. On behalf of the applicant it is contended that the suit in question is a suit for contribution and that it was brought by himself, either as a sharer in joint property in respect of a payment made by him of money due from a co-sharer, or in the alternative made by him as a manager of joint property on account of the said property. As a matter of fact the question raised by this preliminary objection is one which we should have to consider in one form or another at the bearing of the appeal itself, because the only question decided against the plaintiff has been one of limitation, and in order to determine the question of limitation it would be necessary to determine the nature of the suit as brought. We have come to the conclusion that the preliminary objection must prevail, as the suit in question is not a suit for contribution at all within the meaning of Article 41 aforesaid and cannot be held to be concerned with joint property within the meaning of that Article. The somewhat peculiar circumstances out of which the litigation arises need not be gone into at length. The essential point is that a decree was passed on the 15th of February 1910, against all the three brothers who were parties to the present suit in favour of Musammat Basanti, the widow of a previously deceased brother. The object of that decree was to secure to this lady maintenance at the rate of Rs. 10 per mensem chargeable on the whole of the property which had belonged to the father of the three defendants. In consequence, however, of certain antecedent circumstances which need not be gone into, the Court thought fit to include in its decree an express direction that the present plaintiff, Ant Ram, should alone be liable for the payment of the money. The consequence of this is that the liability of the property, and, therefore, the liability of the remaining defendants, could not come into existence except in the event of failure on the part of Ant Ram to comply with the terms of the decree. We do not think there is any getting away from the fact that, at the time when he made the payments which formed the basis of his cause of action, Ant Ram alone was liable to make them under the terms of the decree. No doubt, under the peculiar circumstances, the fact of his making these payments gave rise to an equity in his favour as against his two brothers, and this equity has been recognised by the decree passed in the Courts below. The fact remains nevertheless that the suit as brought cannot be treated as one for contribution and, therefore, was not excluded from the cognizance of a Court of Small Causes. For authorities on this point it is sufficient to refer to two judgments of the Madras High Court, Mavula Animal v. Mavulu Maracoir 30 M. 212 : 17 M.L.J. 376 and Ramaswamy Pantulu v. Narayanamoorthy Pantulu 14 M.L.J. 480. We were referred in argument on the other side to a case of this Court, Fatima Bibi v. Hamida Biu 28 Ind. Cas. 587 : 13 A.L.J. 452. but that case is fully reconcilable with the Madras authorities and indeed proceeds on the same principles of law. What the learned Judge of this Court who decided that case laid stress upon was that the liability which the plaintiff had satisfied was a joint liability as between himself and the defendants at the moment when the payment was made, and, moreover, a liability attaching to a joint tenancy and therefore attaching to property jointly held by the parties to the suit. It was, therefore, a suit for contribution in the full sense of the word. We hold accordingly that no second appeal lies in this case and we dismiss this petition of appeal accordingly with costs including fees on the higher scale.

(2.) WALSH, J.--I entirely agree. One thing is quite clear, that it is only suits for contribution of a peculiar and special character which are included in this exemption. If what is ordinarily known as a suit for contribution was intended to be exempted nothing would have been easier than to say so. I think it must be taken that a litigant who wants to bring himself within Article 41 must clearly establish that his suit in every respect complies with the very precise definition.