Daniels and Neave, JJ.
1. This was a suit for contribution in respect of a decree for mesne profits and costs passed jointly against the parties in the year 1912. A pedigree is given in the judgment of the court below. The parties are a son and grandsons of Daryao Singh, one of three brothers. The property in respect of which the decree for mesne profits was passed was that of a' pre-deceased brother, Puran Singh, whose widow, Musammat Sartaj Kuar, held possession of it till 1912 when she died. The present parties claimed a one-third share in the property on her death as collaterals, and obtained possession and got an order for mutation from the revenue court. The representatives of the other two branches filed a suit for possession and mesne profits and were successful. The plaintiff paid the entire decretal amount in 1918. Hence the present suit1.
2. The property was originally held by Musammat Sartaj Kuat under a partition deed of the 7th of January, 1902. Under this deed the representatives of Daryao Singh's branch were given an equal share in the family property with the branches of Daryao Singh's brothers, Girwar Singh and Narain Singh. Subsequently, on the death of a collateral named Moti Singh, litigation arose and Girwar Singh and Narain Singh denied the right of Daryao Singh's branch to any share on the ground that Daryao Singh was dead when the inheritance opened. The case went in appeal to the High Court where a compromise was arrived at. By this compromise certain property was granted to Daryao Singh's sons, but the deed of the 7th of January, 1902, was declared to be cancelled. Musammat Sartaj Kuar was no party to this litigation compromise, therefore, did not affect her share.
3. It has been generally recognized that the doctrine of Merry weather v. Nixan (1799) 8 T.R. 186, that no suit for contribution lies between tort feasors, does not apply in its full extent to India. A doubt has been expressed in some cases whether it applies at all, but the point has never been decided, nor is it necessary to decide it in this case. Nihal Singh v. The Collector of Bulandshahr (1916) I.L.R. 38 All. 237 and Bhagwan Das v. Rajpal Singh (1920) 24 Oudh Cases 148, are cases in point. There is a long course of authority, both of this Court and of other courts, for the proposition that if it does apply, it' applies only where it must be presumed that the party in1 default knew that he was committing an unlawful act or the act is one of an obviously illegal character. This was laid down by the Madras High Court in Shakul Kameed Sahib v. Syed Ebrahin Sahib (1902) I.L.R. 26 Mad. 373, by the Calcutta High Court in Hari Saran Maitra v. Jotindra Mohan (1900) 5 C.W.N. 393 and by this Court, in Krishna Ram v. Rakmini Sewak Singh (1887) I.L.R. 9 All. 221. Even where the decree was one for damages for a directly tortious act, namely, the wrongful cutting of trees, a suit for contribution was allowed under this rule in Suput Singh v. Imrit Ttewwri (1880) I.L.R. 5 Calc. 720 have, therefore, only to see whether there is anything in the circumstances to deprive the plaintiff of his right to contribution. If the cases has to be decided on grounds of justice, equity and good conscience, it is obviously equitable, in the case of a decree for mesne profits against parties who were in joint possession, that a person who had to satisfy the entire decree should be able to recover his share from his co-defendants, unless there has been something in his conduct to deprive him of this riht. The rule of justice, equity and good conscience is in general, no doubt, considered to be identical with the rule of English law, but there are exceptions, and there is the high authority of Lord Herschell in Palmer v. Wick (1894) A.C. 318 for the view that the rule in Merryweather v. Nixan (1799) 8 T.R. 186 is not founded on any principle of justice, equity, or even public policy which would justify its extension to the jurisprudence of other countries. Lord Watson, concurring, said that the merits of the rule were not such as to commend it to universal acceptation, and Lord Halsbury and Lord Shand concurred in these opinions.
4. The two facts relied on by the lower court as destroying the plaintiff's cause of action are that after the partition deed of 1902 a judgment had been passed holding feat the parties to this suit were not entitled to a third share in the property, and, secondly, that the High Court compromises declared the partition deed of 1902 to be cancelled. It is, however, important to notice that Musammat Sartaj Kuan's share under the partition deed was not affected by the compromise, and the parties might, therefore, very well be under the impression that compromise held good in respect of it and that they were entitled to claim their share in it. It is even stated in the judgment of the lower appellate court, on what evidence we do not know, that the mutation which the present parties obtained in respect of Musammat Sartaj Kuar's share was apparently given on the strength of the partition deed of the 7th of January, 1902, that is, on a ground of right and not on the ground of mere possession. If that is so, the case in favour of the plaintiff is still further strengthened. The mere tact that a decree for mesne profits implies that the possession of the parties was unlawful is not sufficient in itself to do away with the right to contribution. In our opinion the suit should have been decreed, and we accordingly allow the appeal, set aside the decrees of both the courts below and decree the suit for the amount claimed in the plaint against the first two defendants only. The appellant will get his costs in all courts against the first two defendants. The other defendants are the representatives of Girwar Singh and Narain Singh and are in no way liable to the plaintiff's claim. So far as the decrees of the courts below award costs in favour of the defendants Nos. 3 and 4, the decrees will stand good.