KEDAR NATH MISTRI Vs. NARAYAN CHANDRA SAFUI

JUDGEMENT

(1.) This appeal is by the defendants in a suit for contribution.

(2.) The facts are that the plaintiff and his brother Jadu Safui held a jama of Rs. 32 under the landlords. Jadu sold his 8-annas share to the defendants who could not get their names registered in the landlord's sherishta as the tenancy was a non-transferable occupancy holding. Subsequently the landlords sued the plaintiff and his brother Jadu for arrears of rent. Jadu did not appear but the landlords claim in the suit was settled between them and the plaintiff at Rs. 162 out of which the plaintiff paid Rs. 81 and for the balance payable by the defendants there was a decree in terms of the solehnama. The amount not having been paid, the decree was executed by the landlords and the holding in suit was sold. The plaintiff thereupon deposited the necessary amount under Order 91, Rule 89, Civil P.C., and saved the tenancy. Thereafter he brought the present suit for contribution against the defendants claiming the amount due from the defendants to him out of the amount deposited in Court for setting aside the sale. Both the Courts below have found on the facts in favour of the plaintiff and have given him a modified decree.

(3.) The defendants appeal and three points have been urged before us by the learned advocate on their behalf. It is argued in the first place that the plaintiff must show before he can succeed in the suit that the payment was for the defendants and for their benefit. In order to show that the defendants enjoyed the benefit of the payment by the plaintiff he must prove that the defendants had an opportunity of exercising an option of either rejecting or accepting the benefit and reliance for this purpose has been placed upon the case of Jagambal V/s. Naina Pillai [1910] 33 Mad. 15. In that case it was held that where a person makes a payment in order to save his own interest as well as the interest of his cosharer, it is not to be presumed that such payment is made for the benefit of the cosharer. The judgment in that case has been expressed in wide terms but there is a sound principle underlying it. A payment made against the will of another person may not be a payment which would give rise to the right of contribution. A co-tenant may be unwilling to retain the tenancy which he considers onerous and allows it to be sold for arrears of rent. His co-tenant by paying the rent in order to protect his own interest cannot as a matter of course claim the benefit of Sec. 70, Contract Act. But such a case seldom arises and the reported cases On this point do not give indication of any such case having ever been set up. That a payment made for a certain person of which he enjoys the benefit may be presumed from circumstances until the contrary is asserted and proved. The view so broadly taken is Jagamba V/s. Naina Pillai [1910] 33 Mad. 15 by the Madras High Court has not found favour in this Court : see the cases of Jog Narani Singh V/s. Badri Das [1912] 16 C.L.J. 156 and Punkhlati Ghoudhurani V/s. Nani Lai Singh [1914] 19 C.L.J. 72. The principle which should guide Courts in such cases has been authoritatively laid down in Suchand Ghosal V/s. Balaram [1910] 38 Cal. 1 and elaborately discussed in a considered judgment in Nagendra Nath Roy V/s. Jugal Kishore Roy .