Norman Macleod, C.J.
1. The question which arises in these applications under Section 25 of the Provincial Small Cause Courts Act, is whether, in the circumstances of the case, the plaintiff was entitled to contribution against the defendants with regard to the amount of costs which he had paid in a suit filed by one Krishnaji Mahadeo Ghate for possession by partition of his one-sixth share in certain property against the petitioner and his brothers, all of whom had to pay plaintiff's costs in those proceedings. The present plaintiff now seeks to recover by contribution from his co-defendants their shares in the costs in that suit, which he had paid to the successful plaintiff.
2. The learned Judge relying on the decision in Mulla Singh v. Jagannath Singh I.L.R. (1910) All. 585 dismissed the plaintiff's suit. He thought all the defendants were equally guilty in defending the proceeding brought by Krishnaji Mahadeo, and therefore, according to the principle laid down in that case, the plaintiff had no equity against the present defendants. .
3. No case has been decided in this Presidency where the point has been raised, and for that reason I granted the rules on these applications. We have been referred to the decision in Mahabir Prasad v. Darbhangi Thakur (1919) 4 P.L.J. 486 in which case the facts were somewhat similar, the plaintiff having brought a suit for a declaration that by reason of a previous partition, which still subsisted, the property in suit was not liable to be again partitioned. The defendants contested the claim, pleading that there had been no previous partition. That defence failed, and the suit was decreed with costs against all the contesting defendants jointly and severally. The decree was executed and costs were recovered against one of the defendants. He then instituted a suit to recover from his co-defendants their proportionate share of the costs recovered from him under the decree. The real issue seems to have been obscured by the defendants being allowed to raise an issue in the trial Court whether the plaintiff and defendants in the previous suit had been joint wrong-doers in so far as the defence in that suit was concerned. It appears to have been suggested that when several co-defendants joined in a defence which failed, that thereupon they became joint tort-feasors, in which case according to the English authorities one tort-feasor would not be entitled to contribution against the others. But, as pointed out by the learned Chief Justice, such a suggestion was not applicable to that case. His Lordship said (p. 493): -
To hold that it is a tort for the defendant by his pleadings to deny a fact which he knows to be true, even if he has no evidence to the contrary, is a proposition which cannot be supported on any known principle of law. It follows, therefore, that on the facts found by the lower Court the parties were not wrong-doers in the sense which would debar contribution between them.
4. His Lordship then went on to consider the cases which had been cited on one side or the other on the question of contribution, and it was pointed out that the English case of Deardy v. Middleweek (1881) 18 Ch. D. 236, which was relied upon in Mulla Singh v. Jagannath Singh I.L.R. (1910) All. 585, could not be considered as an authority, as Mr. Justice Fry in that case followed what was wrongly asserted by counsel before him to have been the dictum of the Court of Appeal in Real and Personal Advance Co. v. McCarthy (1881) 18 Ch. D. 362 which had been decided the day before. When reference is made to the report of that case, which appears in the same volume at p. 362, it will be found that their Lordships of the Appeal Court never said what was alleged to have been said by them, namely that 'no apportionment of or contribution for costs could be obtained by one co-defendant against another in an independent proceeding.' It seems difficult to imagine how those remarks could have been attributed to the Court of Appeal, as there was no question in that case of contribution between co-defendants. One defendant in the case had elected to give up the case and was directed to pay plaintiff's costs of the action so far as they were occasioned by his defence down to a certain date, and the only question was what costs the defendant who retired from the case was liable to pay under that order.
5. There is also the case of Shakul Kameed Alim Sahib v. Syed Ebrahim Sahib I.L.R. (1902) Mad. 373 which seems to be a decision directly in point, in which it was held that where A, B and C being defendants who had taken part in defending a suit, were ordered to pay the costs of the plaintiff therein, and A, one of those defendants, paid the whole amount due in respect of costs, he was entitled to sue the other defendants for contribution.
6. It seems to us on general principles of equity that when in a partition suit all the defendants equally contest the suit, and are directed to pay the plaintiff's costs, if one defendant pays the costs, he should be entitled to contribution from his other co-defendants, unless facts could be proved which would be considered sufficient to defeat the equity. The common defence raised by the defendants in the partition suit would not be such a fact.
7. We think, therefore, that the decrees of the lower Courts in these cases must be set aside and the plaintiff's claim decreed with costs throughout.