1. The suit which has given rife to this appeal was brought by the plaintiff appellant for contribution. The parties to thus case are co-mutawallis under a deed of endowment which reserves certain benefits in favour of certain persons hereinafter called the beneficiaries. Both the Courts below have dismissed the plaintiff's suit.
2. The beneficiaries instituted a suit against the parties to this case for recovery of what was receivable by them under the deed of endowment in respect of the years 1332-1334 Fasli. The present plaintiff was arrayed as the first defendant and the present defendant was the 2nd defendant. The latter did not enter appearance, and the proceedings were ex parte against her. The 1st defendant (the present plaintiff) contested the suit, inter alia, on the ground that half the property is entered in Mubarak Fatima's (the present defendant's) name, who had received from defendant No. 1 all her profits up to 1334 Fasli. One of the issues framed by the Court in that case was 'What amount, if any, is due to the plaintiff and against which defendant or against both,' The Court decreed the plaintiff's claim in these terms:
3. The plaintiffs are, therefore, entitled to a decree against both the defendants' as both are trustees of the endowed property appearing so in revenue papers.
4. The beneficiaries executed their decrees and obtained satisfaction thereof from the plaintiff alone. The present suit was brought by the plaintiff far recovery of half of what he had to pay to the beneficiaries under the decree obtained by them. His case is that the parties being co-mutawallis, the defendant ought to contribute half of what was payable to the beneficiaries. Both the lower Courts have found that the bulk of the profit came into the hands of the plaintiff and the latter is not, therefore, entitled to recover anything from the defendant, who has no funds in her hands belonging to the endowment. On that finding the plaintiff's suit was dismissed.
5. It is contended in second appeal that the decision in the beneficiaries' suit operates as res judicata between the parties to this case so far as the defendant's liability to contribute is concerned. I am unable to accept this contention. The present defendant, who was the 2nd defendant in the beneficiaries' suit, did not enter appearance. There was nothing in the pleas taken by the plaintiffs or the defendant No. 1 in that suit which amounted to an allegation that even though the bulk of the profits came into his hands the co-mutawalli, who was without funds, was nevertheless liable to contribute half of the money payable to the beneficiaries. The question to be decided now was not directly and substantially in issue in the beneficiaries' suit. All that the Court held in that case was that as between the beneficiaries on the one side and the two mutwallis on the other no specification of the latter's liability need be made. Accordingly a joint decree was passed. It was open to the beneficiaries to execute their decree against one or the other of the 'mutawallia' who were the judgment-debtors. It so happened that they obtained satisfaction of their decree from the mutawalli who had the funds of the endowment in his possession. It is not, in my opinion, open to the latter to sue his co-mutawalli for contribution, as if the co-mutawalli was under a personal obligation to pay to the beneficiaries. It was out of the income of the endowed property that the mutawallis were to pay to the beneficiaries. One of the two mutawallis realising the bulk of the profits of the endowed property was bound to pay to the beneficiaries. A suit like this can succeed only if it fulfills the requirements of Section 69 of the Indian Contract Act, which provides:
A person who is interested in the payment of money which another is bound by law to pay, and who, therefore, pays it, is entitled to be reimbursed by the other.
6. I have not before me the deed of endowment, and it is not possible to say that it contains any stipulation which, in all circumstances, directs each mutawalli to pay half of what is directed to be paid to the beneficiaries. I take it that the mutawallis who are in charge of the property have been made liable to pay certain sums out of the income thereof to the beneficiaries. If only one of the two mutawallis is in possession of the bulk of the income, and he pays off the beneficiaries, it cannot be said that he has paid what the other mutawalli was bound to pay. He has paid what he was himself bound to pay, having regard to the fact that the bulk of the profits came into his own hands. In this view I think the lower Court has correctly held that the plaintiff is not entitled to contribution and the plaintiff's suit was rightly dismissed. This appeal fails and is dismissed under Order XLI, Rule 11, Civil Procedure Code.