Shiv Dayal, J.
1. Bhaskarrao and Gopalrao were two brothers. Bhaskarrao instituted a suit in the Tehsil ot Shajapur (Revenue Suit No. 31/1994) on 26-8-38 under Section 325 of the Qanoon Maal against (1) Gopalrao (2) his Mukhtar Aam, Deorao and (3) his wife Ramabai. in that suit a decree for restoration of possession of agricultural land as also mesne profits at Rs. 75/- per year was claimed, jointly and severally against all the three defendants. A decree in that suit was passed in favour of the plaintiff for possession as also for mesne profits at the rate of four times the annual rent 'against the defendanis'.
2. The present civil suit was instituted by Deorao (defendant No. 2 of the revenue suit) on the allegation that since the revenue decree was executed against him and the decree-holder sought sale of his properties, ha had to pay Rs. 2100/- in all to the decree-holder of that decree. In the present suit Deorao claimed contribution from the other two defendants in the revenue suit: (1) the heirs of Gopalrao (since died) and also (2) Mst. Ramabai. The claim in the present suit was for Rs. 1400/-. A decree for the entire claim was. passed in favour of the plaintiff against all the defendants by the trial Judge. On appeal, the Additional District Judge, Shajapur upheld the decree against the sons of Gopalrao as also against Ramabai. But he held Ramabai liable not because of her being the third defendant in the Revenue suit but be-cause of her being one of the heirs of deceased Gopalrao. The first appellate Court reduced the liability of the defendants from two-third to one-half and passed a decree for Rs. 1050/-.
3. This appeal has been filed by all the defendants praying for dismissal of the suit. The plaintiff has filed cross objections for enhancement of decretal amount to Rs. 1400/- and also for holding Ramabai personally liable.
4. It is first contended by Shri Sahasrabudhe for the defendants that no decree could be passed as the tact of payment of Rs. 2100/- was not proved by the plaintiff. The argument is that the decree-holder of the revenue suit was not examined nor did the courts below consider the statements of Deorao and Raghunathrao who were examined in' the present suit. It is also argued that exhibits P. 15 and P. 17 which were applications made in the Revenue suit in connection with the compromise between Bhaskarrao and Deorao were not proved according to law.
There is no force in the contention. No specific objection was taken in the written statement although there was a general denial. The certified copy of the order regarding compromise is Ex. P-16, in which it Is, stated that the judgment-debtor Deorao had paid the decretal amount. Although the sum paid has not been specified yet the decretal amount was Rs. 2439-8-3. It is a question of fact. Deorao stated that there was a compromise between him and Bhaskarrao for Rs. 2100/-It is true that he admitted in cross-examination that he was not himself present when the amount of Rs. 2100/-was paid to Bhaskarrao but he got this amount paid through Raghunath and he was satisfied when the execution was dismissed. Raghunath stated that he was instructed by Deorao to pay Rs. 2100/- to Bhaskarrao and accordingly he made the payment himself and obtained a receipt.
Although these statements are not specifically mentioned in the judgment, it cannot be said that there is no evidence to support the finding. There is no suggestion from the defendants that under the revenue decree the sum of Rs. 2100/- was not recoverable or that any defendant other than Deorao paid anything to Bhaskarrao. In these circumstances, I would not go behind the finding of fact.
5. Shri Sahasrabudhe then urges that the Revenue decree was a joint decree and no question of contribution arose. Moreover, apportionment could be made only according to the proportion of the guilt of the joint tort-feasors. I do not see any substance in this contention either. A decree passed against two or more tort-feasors can be executed against anyone of the defendants. Such defendant can be compelled to pay the entire amount of damages decreed. He has a right to contribution from the other wrong-doers. The earlier rule of the English Law which denies a right of contribution among joint tort-feasors is not applicable in India.
6. It was laid down in Merryweather v. Nixan, (1799) 8 T. R. 186, that if an action were brought for joint tort and one tort-feasor paid the whole damage recovered he had no right to claim contribution from the others. He could recover the whole or a portion of It under an express or an implied agreement for indemnity or contribution, provided that recovery in the particular case was not contrary to public policy. But no agreement for indemnity or contribution could be implied merely from (he fact that one tort-feasor paid under compulsion the whole damage arising from the tort.
This was the Common Law Rule (see Clerk and Undsell on Torts, 11th Edition, at page 110). The reason of the rule was that a wrongdoer was himself to bear the consequences of committing a tort and could not enforce an agreement, express or implied, to share the profit or loss of an unlawful undertaking. But the rule in (1799) 8 TR 186, is no longer the law in England, for now, by Section 6(l)(c) of the Law Reform (Married Women and Tort-feasors) Act, 1935, where damage is suffered by any person as a result of a tort, any tort-feasor liable in respect of that damage may recover contribution from any other tort-feasor who is, or would if sued have been liable in respect of the same damage, whether as a joint tort feasor or otherwise.
By Section 6(2) of the same Act, the contribution recoverable is such as may be found by the Court to be Just and equitable having regard to the responsibility for the damage of the person against whom contribution is claimed; he may be exempted altogether, or ordered to give a complete indemnity. See for instance Burohan v. Bayer (1936) 2 All ER 1165; and Croston v. Vaughan, (1938) 1 KB 540.
In India the rule in (1799) 8 TR 186, was not applied even before it was superseded by the Law Reform Act of 1935. Since Gopalrao was a joint tort-feasor, he was liable to contribution. In this view I am supported by Khushalrao v. Bapurao.. ILR (1942) Nag. 1 : (AIR 1942 Nag 52). The decision in Baijnath Thakur v. Bijadhar, AIR 1961 Pat 103, relied on by Shri Sahasrabudhe is not in point. In that case the question was about contribution for liability arising out of a joint decree against contesting and non-contesting defendants. It was held that the contesting defendants after payment of on decretal amount had no right to contribution against the non-contesting defendant.
7. As regards the proportion of guilt, the defendants did not take any plea in the written statement that they were less guilty than Deorao. In the absence of a plea, no relief can be granted1 to the defendants on mere surmises. Ex facie, Deorao was only a Mukhtar-Aam of Gopalrao, so that it does not appear how Gopalrao was less guilty than his Mukhtar-Aam. It was for the heirs of Gopal Rao seeking to avoid the liability to make out a definite case in their favour. Having regard to all the facts before the Court, the liability of the defendants was rightly held to be equal.
8. The learned Judge of the first appellate Court nas relieved the third defendant because of the statements made in paragraphs 5 & 8 of the plaint of the Revenue Suit (Ex. P-l). There it is stated that she was formally Joined as a defendant just because Gopal Rao and Deorao got the name or Ramabai (wife of Gopal Rao) entered in revenue papers on the disputed survey numbers. This shows that she was a pro forma defendant. She did not commit trespass. As her name appeared in revenue papers she was joined as a defendant. For this reason, her case can be disengaged. I agree with the first appellate Court that she is not liable in her personal capacity although she is liable as one of the heirs of Gopal Rao.
9. This brings me to the question whether the heirs of Gopal Rao are liable to contribution after his death. Shri Sahasrabudhe contends that they are not liable because it was an Avyavaharik debt within the meaning of the Hindu Law and even if Gopal Rao was liable to contribute, his heirs are not. Reliance is placed on Lachmi Prasad Singh v. BasantLal, 16 Ind Cas 970 (Cal); Deoba v. Babaia AIR 1927 Nag 337; and Ram Lal Misir v. Jagdish Trwari, AIR 1938 All 591. In my opinion not one of these cases is applicable here.
10. In England the common Law Rule was that actions of tort died with the person, whether he was the party injured or the tort-feasor. This was often expressed In the maxim actio personalis moritur cum persona. This rule was abrogated by the Law Reform (Miscellaneous Provisions) Act, 1934, which lays dawn the general rule that on the death of a person all causes of action subsisting against or vested in him shall survive against, or for the benefit of, his estate. But even in England the rule actio personalis moritur cum persona did not come into play if the suit had ended in a decree for damages in favour of the plaintiff.
11. Then again, a liability for tort does not amount to a debt; it is distinct from an obligation legally incurred in consequence of a contract or quasi-contract. Where a father is guilty of a civil wrong and a decree is passed against him, it does not become an Avyavaharik debt. His son is bound to pay subject to the condition that he has received assets from which the liability can be discharged. The liability will be governed by the provisions contained in Ss. 50 and 53 of the Code of Civil Procedure. In this view, I think, I am supported by the decision: in Bathanaswami Naidu v. Kannan, AIR 1943 Mad 415.
12. In the result, the appeal and the cross objections are both dismissed. Parties shall bear their own costs In this Court.