S.P. Mohapatra, J.
1. This Second Appeal has been filed by defendants 1 and 2 against the reversing judgment of the lower appellate Court arising but of a suit for contribution in the following circumstances. The plaintiff and all the defendants in the present case, who are seven in number, were parties to a previous suit No. 34 of 1950, which was decreed against all the defendants in the previous suit who were only five in number, with costs. The plaintiff having paid the costs which were due on the basis of the decree in Title Suit No. 34 of 1950, has brought this suit for contribution.
The position will be clarified by reference to the genealogy which is attached to this judgment of mine. Nimai had four sons : Gourchandra, Narasingha, Bhagirathi and Ramkrushna. Ramkrushna's branch is extinct and we have nothing to do with his branch for the purpose of the present case. Gourchandra's son was Mohan. Mohan died leaving behind him his only daughter Taramani. Kishore, Pratap and Ramesh were the three sons of Taramani who were the plaintiffs in Title Suit No. 34 of 1950.
Narsingha had two sons : Gopal and Appanna. The present defendants 1 and 2 are the sons of Appanna, and they were also parties-defendants in the previous suit. Gopal's son Nandakishore was also a party-defendant in the previous suit but he having died in the meantime, his four sons--the present defendants 3 to 6--have been made parties in the present suit even though they were not parties to the previous suit wherein Nandakishore alone figured as one of the five defendants.
The present plaintiff Banamali, who is one of the sons of Bagirathi, was a party-defendant in the previous suit. The present defendant No. 7 Dwarikanath is the grandson of Radhananda who was the first son of Bhagirathi. He was also one of the parties-defendants in the previous suit. According to the plaintiffs version, as there were five defendants in the previous suit and there was a joint decree for costs against all, he is liable to meet the costs only to the extent of 1/5th and is entitled to the rest of the costs from the other four defendants in the previous suit equally; as such, according to the plaintiffs version, defendants 1 and 2, the present appellants, will be liable to pay costs to the extent of 2/5ths.
According to the version of these appellants, however, the liability to contribute has got to be assessed according to the interest that these defendants would have eventually obtained on the contingency that a decree was passed in their favour in the previous suit. Accordingly they assert that defendants 1 and 2 are liable only to the extent of 1/4th of the costs; the plaintiff is liable to 1/4th; defendant No. 7 is liable to 1/4th and as Nandakishore was liable to 1/4th, defendants 3 to 6 in the present suit will therefore be liable to 1/4th.
The trial Court accepted this contention of the defendants and allowed the decree against the present appellants only to the extent of Rs. 787/-and odd. The lower appellate Court, however, has made the apportionment of liability to contribute on per capita basis. Therefore he has found that defendants 1 and 2 are liable to pay 2/5ths of the costs of the previous suit, and according to his calculation, the amount payable to these appellants will be Rs. 1299/- and odd. It is against this decree of the lower appellate Court that the present appeal has been filed wherein the decree' passed by the trial court has not been challenged as the defendants did not file any appeal against the decree passed by the trial court.
2. It may be mentioned at the outset that in the previous suit the shebaiti rights of the members of the family were in question. The plaintiffs in title suit No. 34 of 1950 who were the daughter's sons of Mohan Bakshi, claimed 1/3rd interest in the shebaiti rights which was being challenged by the members of the other two branches belonging to Narasingha and Bhagirathi, on the assertion that the plaintiffs being the daughter's sons and strangers to the family, they were not entitled to any share whatsoever in the shebaiti rights.
Indeed their defence was negatived and a decree was passed with costs. The plaintiff having paid the entire costs, the question of apportionment is the only question that arises for consideration in this suit. The principle which will serve as a guidance for cases of this nature is too well known. Indeed no hard and fast rule can be laid down in the matter of apportionment of liability of the different parties in a suit for contribution; but nevertheless the position is well settled that the doctrine of contribution is developed on the basis of equity and not on the basis of contract.
It is based upon the principle of equality of burden and benefit. The true reason underlying the doctrine of contribution is indicated by the maxim 'equality is equity'. In a leading case, Dering v. Earl of Winchelses, (1787) 1 Cox 318, it was laid down that the doctrine was not founded on contract, but was the result of general equity Jen the ground of 'equality of burden of benefit'
A passage from the decision of their Lordships of the Privy Council reported in Md. Kasim Ali Khan v. Md. Sadiq Ali Khan, AIR 1938 PC 169, is worth being quoted.
'The principle established in the case of (1787) 1 Cox 318 is universal, that the right and duty of contribution is founded on doctrines of equity; it does not depend upon contract. This has been settled law in India since Rambux Chittangeo v. Modhoo Soodun Paul, 7 Suth WR 377, a Full Bench decision of the High Court at Calcutta in, Sir Barnes Peacock's time which contains a careful exposition of the matter from an Indian standpoint.'
Indeed, on the recognition of the principles of equity, Sections 69 and 70 of the Indian Contract Act came on the statute; but they are not exactly the creatures of contract and the provisions are based upon the relationship of the parties on the basis of quasi contracts. But nevertheless the origin of such principle is equity and equality. Having regard to the basic principle, it appears to me clear that in the present case the contention of the defence advanced On behalf of the present appellants, defendants 1 and 2 must prevail.
It transpires that the present plaintiff was one of the defendants in the previous suit who was taking a leading part in the interest of all and further he was contesting the case brought by the plaintiffs in the previous suit on behalf of the five defendants in the suit. The parties were contesting on the basis of their interest in the property which was the subject matter of the litigation in the previous suit. The position can be clarified by reference to one ordinary illustration.
Supposing the Party is interested in a very insignificant part of the property involved in the litigation and the other party-defendant is interested in the substantial portion of the property involved. If a decree is passed against both, undoubtedly the decree is passed against them making them jointly and severally liable; but different considerations will arise while making an apportionment of the liability in the suit for contribution.
It will be by far inequitable and unfair to impose equal liability by way of apportionment in a suit for contribution even against the party who had very insignificant interest in the property which was the subject matter of the litigation. The position therefore remains clear that an apportionment must be in accordance with equitable adjustment of the liability of the parties. In my view in the present case, the apportionment ought to be On the basis of the interest that the present defendants would have been entitled to in the event of their success in the previous litigation, that is to say, they being liable to the extent of 1/4th of the costs, indeed both the defendants being taken together.
The plaintiff was liable to the extent of 1/4th of the decree for costs in the present suit. Nandakishore was liable to the extent of 1/4th; as such defendants 3 to 6 of the present suit are therefore liable to the extent of 1/4th. Defendant No. 7 is liable for the balance of 1/4th. The calculations ought to he on the basis of the aforesaid direction. Accordingly, the appeal succeeds, the judgment and decree of the lower appellate Court are set aside, and the judgment and decree passed by the trial court are upheld. Parties are to bear their own costs throughout.
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Gourchandra Narasingha Bhagirathi Ramkrushna
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Mohan _________|_______ _____|________________
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Taramati Gopal Appanna Radhananda Banamali Nandlal
(daughter) | | |
| Nandkishore ________|________ Dayanidhi
______|________ | | | |
| | | | Nityanand Hrudayanand Dwaraknath
Kishore Pratap Ramesh |
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IIena Sriniwas Sachi Padma