BIRAJ KRISHNA MUKHERJEE, MANAGING DIRECTOR TO KUNDALA PRABHURAM SAMPAD SYNDICATE LTD Vs. PURNA CHANDRA TRIVEDY

JUDGEMENT

(1.) This is an appeal by defendant 1. The suit was one for contribution. There were two patnis which were held in the following manner: plaintiff one-third; defendants 2 to 10-one-third; defendants 11 to 16-one-third. Defendant 1 had a darpatni under defendants 2 to 10. Defendants 2 to 10 had a darpatni under defendants 11 to 16 and defendant 1 had a sepatni under them. There were the usual terms in the leases to the effect that the darpatnidar and the sepatnidar would pay one-third of the patni rent to the zamindar. Ex. 7 is one of the leases. In order to save the patnis from being brought to sale the plaintiff paid the whole of the amount due and then instituted the present suit for contribution. The plaintiff obtained a decree against all the defendants but it was rather stultified by a direction that he could realize the decretal amount from defendant 1 alone. Defendant 1 appealed without success and he has now appealed to this Court. There is no appeal or cross objection by the plaintiff against the inconsistency in the decree which I have just pointed out.

(2.) Defendant 1 is not one of the patnidars jointly liable with the plaintiff for the payment of the patni rent. He cannot therefore be made liable to contribute, unless the zamindar is entitled to sue him on the contracts to which he (the zamindar) was a stranger. This question has been frequently considered in this Court. It appears now to be well settled that ordinarily such a stranger cannot sue. The only opinion to the contrary which I have been able to discover is that of Lort-Williams J. in Khirode Behari Dutt V/s. man Gobinda . That opinion has been con. sidered amongst others in K.C. Mukhertjee V/s. kiran Chandra (1938) 42 C.W.N. 1212 and District Board, maldah V/s. Chandra Ketu narayan Singh , to which I myself was a party. While this opinion of the learned Judge has been frequently dissented from, it has never, so far as I know, been followed. Both the learned Judges in the Courts below took the view that the zamindar as a stranger could not sue on the contract. They got over the difficulty, however, the Subordinate Judge finding that the patnidar was a trustee for the zamindar, and the District Judge finding that he was an agent.

(3.) There are no materials to support either of these conclusions. The contract is one of a type which is frequently found and is precisely similar to those which were considered in the cases reported in K.C.Mukherjee V/s. Kiran Chandra (1938) 42 C.W.N. 1212 (referred to above) and Jiban krishna Mullick V/s. Nirupama Gupta (1926) 13 A.I.R. Cal. 1009. Those authorities are directly against the findings of the learned Judges in the Courts below, and we must overrule the contention that the appellant was liable to contribute because the zamindar would be entitled to sue him on the contracts. Reliance however was also placed upon Secs.69 and 70, Contract Act. On behalf of the appellant, Mr. Mukherjee contended that the former does not apply, firstly, because it has no application to contractual obligations, and secondly, because the suit is not one for reimbursement but one for contribution. In our opinion it would be very difficult to say that in no conceivable circumstances could the Section apply to contractual obligations. Such an interpretation would undoubtedly limit the usefulness of the Section and lead to most illogical results. For example, it would follow that, while a patnidar who paid the land revenue would be entitled to claim reimbursement from a zamindar, no such right would accrue to a darpatnidar who paid the patni rent. Such a distinction would be quite unreasonable and it has been held that in such circumstances the darpatnidar is entitled to claim reimbursement: videRajani Kanta V/s. lal Mahommad (1918) 5 A.I.R. Cal. 636. In support of the applicability of the Section, Mr. Das relied strongly upon the decision in Somashastri Vishwanathshastri V/s. Swamirao Kashinath (1917) 4 A.I.R. Bom. 55. Mr. Mukherjee asked to say that that is a halting decision to which very little weight can be attached. The facts as accurately reported in the head-note are as follows: K, who owned considerable property, gave a portion of it to his daughter's husband (plaintiff) in 1878, the deed of gift expressly providing that K undertook to pay the judi in respect of the portion. In 1902, K made a gift of the residue of his property to B, the gift deed containing special reference to the previous gift of 1878 and enjoining the donee to act acoording to that gift. The judi was regularly paid by E first and B afterwards. In 1905, B in his turn made a gift of the property to the defendant; the deed of gift in this case contained a reference to the gift of 1878 but it contained no words requiring the donee defendant to abide by the terms of that gift. The defendant having failed to pay the judi to Government, the plaintiff was required to pay it. He sued to recover the amount from the defendant.