1. This is a suit for contribution by one brother against another which was dismissed by the Additional District Munsift' of Ellore whose decree was confirmed by the Principal Subordinate Judge of Ellore in appeal. The plaintiff has filed this second appeal in the High Court and the first point which requires decision is whether there is any right of appeal under Section 100 in the circumstances of the case.
2. A great deal of the controversy in the Courts below centered round the date at which two parts of a particular book were published. The two brothers who had been publishing books as a firm entered into a partition on 15th April, 1928, and one of the terms of that partition was to throw upon both of them any losses or difficulties which should result from any of their business carried on prior to the 22nd of March. If therefore the books in question were published after the 22nd March, this clause will not relate to them and plaintiff's case must necessarily fail. Plaintiff however relies upon Nos. 41 and 45 in the list of books in Schedule D to the partition deed and says that they relate to the books now in question, which therefore must have been published before the partition. Plaintiff's case was accepted by the learned District Munsiff on this point, but has not been accepted by the learned Subordinate Judge. In his discussion of the evidence, the learned Subordinate Judge relies upon a letter written by plaintiff himself in which he referred to the actual preparation of the books as having taken place in May, 1928 and to this letter the learned Subordinate Judge attached a very great importance. On the other hand, the learned Judge has entirely ignored the very important documents (Exs. N and N-l), which are printer's bills and are said by the plaintiff to relate to these books. Further, the learned Subordinate Judge has lightly dismissed the fact that the defendant has failed to prove that the actual books referred to in the partition deed were not the books which are the subject-matter of this suit. What the learned Subordinate Judge says is this:
I do not think that the lower Court was justified in inferring that these entries Exs. A-1 and A-2 relate to the books Exs. B and B-1, simply because the defendant has failed to prove that they relate to some other books.
The learned Judge goes on to say:
From the evidence that has been let in, I am inclined to think that Exs. A-1 and A-3 do not conclusively go to show that they refer to Exs. B and B-l.
It seems to me that in this manner of appreciating the evidence the learned Subordinate Judge has misdirected himself. This is not a criminal case in which the benefit of every reasonable doubt must necessarily go to the defendant. The fact that the defendant has failed to prove a positive case which is intended to rebut the case of the plaintiff must be given its due weight, and the learned Subordinate Judge is not entitled to require from any party conclusive proof of any fact. As has been pointed out in a previous judgment of my own in Prakasarao Naidu v. Ramamurti Naidu, 1937 M.W.N. 188. where a lower appellate Court required a standard of proof higher than that laid down by the Evidence Act that was an error of law or procedure which would justify interference under Section 100(1)(c) of the Code of Civil Procedure. I am accordingly of opinion that I am entitled to interfere in this case even though the finding of fact is against the appellant. The whole of the evidence has not been produced before me and I do not wish to make any further criticism of the way in which it has been considered by the learned Subordinate Judge as I propose instead of deciding this issue of fact myself to call for a finding from the lower appellate Court. This finding must be submitted within one month of the reopening of the Subordinate Court of Ellore after the vacation and must be upon issue I alone of the issues framed by the District Munsiff, and no further evidence can be allowed; time for objections ten days.
3. In pursuance of the above order of the High Court the Principal Subordinate Judge of Ellore submitted the following
Finding: * * * * *
The case coming on for final hearing after the receipt of the finding the Court delivered the following judgment:-This appeal arises out of a suit brought by the plaintiff against his brother for contribution. The plaintiff and his brother were members of a joint family. They entered into a partition in April, 1928, when they were jointly carrying on the business of publishing books and amongst the books which they had decided to publish was the 'English Primer' to be published in two parts. This Primer was originally written by one Mr. S. V. Thomas and the undisputed fact of this case is that the two brothers decided that it should be revised by one Mr. Srinivasa Rao. When this appeal first came on for hearing before me in April, 1941, there was no clear indication in the judgments of the Courts below as to the precise date of the publication of this English Primer and the appeal was remanded to the learned Subordinate Judge of Ellore for a finding on this point. He has submitted a finding which shows that Part I of the Primer was published before the date referred to in the partition deed and Part II after that date. The publication undoubtedly constituted an infringement of the copyright possessed by the widow of the original author of the book and when she took criminal proceedings against the plaintiff, the plaintiff was advised legally to compound the claim, and accordingly he paid a certain sum to the widow of Mr. Thomas and the prosecution was withdrawn. He has now sued his brother, the defendant, for recovery of one half of the money which he, thus, paid over to the widow of Mr. Thomas.
4. The first question which arises in this case is whether the terms of the partition agreement between the two brothers permit of this claim being made. The partition agreement recites
that if in respect of any transactions, which took place prior to the 22nd March, 1928, any loss has been sustained in connection with Rama & Company or Venkatrama & Company, such losses and difficulties shall be borne by both of us.
The question then is whether the payment which was made to the widow of Mr. Thomas was a loss occasioned by a transaction which took place before the 22nd March, 1928. As already indicated the finding now submitted by the learned Subordinate Judge is that the final act in the transaction, namely the publication of the English Primer took place partly before and partly after the 22nd March. But the learned Subordinate Judge has indicated that it is his opinion that in spite of the fact that Part II was not published until after that date the publication of both the parts falls within the meaning of this clause. It seems to me that this opinion is the correct one. The intention of the parties must have been that both should be liable to meet any losses which were occasioned by the joint acts of both, that is to say the transactions which took place while they were in partnership and before the partition. The 'transaction' in the present case cannot be restricted to the final publication of the book. It must obviously include the negotiations with Mr. Srinivasa Rao by which the firm had decided that the books should be published. It was those negotiations which were the real cause of the incurring of this expense by the plaintiff, for but for these negotiations the plaintiff would not have published Part I or Part II and even if the plaintiff had thought over his position and had decided not to publish either the one part or the other there would still have been a loss arising from the fact that they had necessarily to make some payment to Mr. Srinivasa Rao for a book which they were no longer able to publish. It is clear therefore that any loss which was incurred in connection with the whole of the transaction of printing and publishing this book owed its origin to events which took place before the 22nd March, 1928, and therefore under ' the terms of the partition agreement the loss must be borne equally by both brothers.
6. It only remains to consider the plea on behalf of the defendant that the payment to Mrs. Thomas was occasioned by the commission of a tort and that where a suit for contribution is brought by one tortfeasor against another, the rule in Merryweather v. Nixan (1799) 8 T.R. 186 : 101 E.R. 1337, should be applied and no relief should be granted. There is no clear finding by the learned Subordinate Judge who decided this case in appeal on the question whether the plaintiff and the defendant were joint tortfeasors, although he appears to incline to the opinion that if any tort had been committed, it was committed only by the plaintiff himself. It is unnecessary for me to come to any distinct finding, but it seems to me clear that if any tort was committed it was the joint action of both parties and that the learned Subordinate Judge had no justification for differentiating between the position of the plaintiff and the defendant in this respect.
7. On the question of law, however, I am unable to accede to the contention for the respondent that the rule in Merryweather v. Nixan (1799) 8 T.R. 186 : 101 E.R. 1337. should be applied in this country. In England the universal application of the rule had long been questioned and finally in 1935, a new Act was passed which made the rule in Merryweather v. Nixan (1799) 8 T.R. 186 : 101 E.R. 1337. no longer good law and no longer enforceable in the English Courts. It is only if I were bound by any authority in this country to apply the rule that I would think of doing so and it is conceded by the learned advocate for the respondent that the only authority which he can produce in favour of the application of the rule to a case in this country is one by a single Judge of this Court. I am not, with respect, prepared to follow that ruling or to apply the rule in Merryweather v. Nixan (1799) 8 T.R. 186 : 101 E.R. 1337. to any case. There is, therefore, no legal impediment to the granting of a decree to the plaintiff.
8. The decrees of the Courts below will, therefore, be set aside and this appeal allowed granting to the plaintiff a decree for the sum of Rs. 363-11-9 with interest at 6 per cent. from the date of the plaint to the date of realisation. The parties will give and take proportionate costs throughout.
9. Leave is refused.