1. In Small Cause Suit No. 1494 of 1919 on the file of the Court of the Subordinate Judge of Tanjore plaintiff sued for contribution. In O.S. No. 409 of 1906 on the file of the Court of the District Munsif of Tiruvadi he was sued as defendant No. 6 along with defendants, deceased father of the present defendant Nos. 3 to 8 and defendants Nos. 1 and 2 who are also defendants Nos. 1 and 2 in this suit. The costs were recovered from plaintiff and he sues for contribution. The lower Court has dismissed the suit on the ground that defendants Nos. 2, 5 and 6 in O.S. No. 409 of 1906 were joint tort feasors, and plaintiff files this petition for revision (1st defendant pleaded payment and the point was found against him).
2. There is authority for holding that there can be no decree for contribution among joint tort feasors. Vide Manja v. Kadugochen I.L.R. (1883) M. 89, Gobind Chunder Nundy v. Srigobind Chowdhry I.L.R. (1897) Cal. 330 though that authority is shaken by the observations of Lord Herschell in Parlmer v. W.P. Steam Shipping Co. L.R. 1894 A.C. 318 quoted in Siva Panda v. Jujusti Panda I.L.R. (1901) M. 599. However, assuming that the authority holds good, there remains the question of fact whether these defendants in O.S. No. 409 of 1906 are proved to have been joint tort feasors.
3. The second defendant actually pleads in his written statement that he made a fraudulent defence, but that plea has no evidentiary value, and can be ruled out on the principle nemo allegens turpitudinem suam est audiendus.
4. Respondents Nos. 3 to 8 are children of defendant No. 5 in O.S. No. 409 of 1906. In his judgment in that suit the Munsif held that defendants Nos. 5 and 6 were estopped under Section 317 of the old Code of Civil Procedure from pleading that the purchase of certain items was benami. He also found that the story was untrue and did not believe that the father of 6th defendant paid a moiety of the purchase money. The appellate Court found that plaintiff's evidence was defective, and that of defendants Nos. 5 and 6 was not sufficient to justify an affirmative conclusion. The Munsif also found that second defendant acted under the influence of defendants Nos. 5 and 6. On these findings it would be impossible to base a definite charge of perjury against defendants Nos. 5 and 6. The most that can be said is that they failed to convince the Court that their contention was true, and no one suggests that whenever joint defendants fail in a suit they should be treated as tort feasors.
5. Accordingly I find that plaintiff is entitled in law to claim contribution as sued for. The petition is allowed with costs to petitioner throughout.