Skip to content


(Mantrala) Yegnanarayana Vs. Vankamamidi Yagannadha Rao and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1932Mad1a
Appellant(Mantrala) Yegnanarayana
RespondentVankamamidi Yagannadha Rao and ors.
Cases Referred and W. H. Smith and Son v. Chinton and Harris
Excerpt:
.....from the other, was too widely laid down in merryweather v. 2: the better opinion is that the rule in merryweather v. the exception is where the act is not clearly illegal in itself. jarvies [1826] 4 bing 66 ,best, c. it was very clearly discussed whether there was any implied contractual relation between two joint tortfeasors so as to entitle one to contribution against the other, where one suffered all the consequences of the wrong doing. 185, which obtains in england, may well be applied. in this case the plaintiff knew well that defendant 1 had already entered into a contract with his brother for the sale of the lands; he has clearly committed an act which is a civil wrong and he has done that with intent to injure defendant 1. in this connexion i must also mention that the..........it will be observed thatin one of these three last mentioned cases was the question, how far the rule in merryweather v. nixan, 8 t.r. 185, should be followed in india, was decided though having regard to the remarks of the noble lords who decided palmer's case, [1894] a.c. 318 doubts wore expressed whether the doctrine should be applied at all in this country.15. it is now well recognized in england that the rule as between joint wrongdoers, one who has been sued alone and compelled to pay the whole damages has no right to indemnify or contribution from the other, was too widely laid down in merryweather v. nixan, 8 t.r. 185. this rule was considered in palmer v. w. and p. steam shipping co., [1894] a.c. 318. in that case a joint decree had been obtained against two persons for.....
Judgment:

Madhavan Nair, J.

1. The plaintiff is the appellant. The facts that need be stated for deciding the questions arising in this second appeal, are briefly these: Defendant 1 had agreed in 1920 to sell some lands which he had in Chinnatummidi Agraharam to his brother VenkataTamayya, who was cultivating them, for Rs. 1,800. In the same year he executed an agreement, Ex. B,to sell the same lands to the plaintiff; and afterwards executed in his favour a sale deed, Ex. A, for Rs. 3,500. After the sale deed was executed defendant 1's brother Venkataramayya brought a suit, O.S. No. 23 of 1921, in the Court of the District Munsif of Gudivada for specific performance of the agreement to sell the lands in his favour to which defendant 1 and the plaintiff were made parties. Defendant 1 did not contest that litigation and it was carried on solely by the plaintiff. That suit was decreed in favour of Venkataramayya and the decree was confirmed in appeal also. In the suit, which has given rise to this second appeal, the plaintiff sued to recover the amount of consideration which he has paid to defendant 1 for Ex. A as well as the costs which he incurred in the Gudivada Court, viz., the costs which he had to incur himself in defending the suit and also the costs which he had to pay the plaintiff in that suit. He also asked for damages. The learned Subordinate Judge found that the ' agreement to sell in favour of the plaintiff was brought into existence during the trial of the suit in the District Munsif's Court of Gudivada, that only a sum of Rs. 1,600 was paid by the plaintiff to defendant 1 and that as he was a joint tortfeasor with defendant 1 he is not entitled to get either the costs or the damages which he has claimed. In the result, the plaintiff was given a decree only for Rs. 1,600 with interest.

2. Disregarding the issues relating to the minor points raised in the case, the important issues with reference to the findings in which arguments were addressed to me on behalf of the appellant are these:

1-a. Did the plaintiff purchase plaint property from defendants with knowledge of the prior agreement to sell in favour of defendant 1's brother Venkataramayya and with an undertaking to risk the consequences of the litigation, if any, with him (Venkataramayya) as alleged by defendants 1 and 2?

5-a. Is plaintiff entitled to claim from defendants 1 and 2 costs he had to incur and costs had had to pay Venkataramyya in the litigation referred to in the plaint; and if so, are the amounts shown in the plaint account correct?

7. Are plaintiff and defendant 1 joint tortfeasors as alleged by defendants; and if so, is not this suit maintainable by the plaintiff?

3. These issues were all found against the plaintiff. On these issues the findings of the learned Sub-Judge, generally stated, are that defendant 1 told the plaintiff of his agreement to sell the lands to his brother, that he knowing of this agreement prevailed upon defendant 1 to sell the lands to him at an enhanced price and that defendant 1 was tempted to sell the lands to the plaintiff as he was prepared to pay him a higher price and also to fight out the matter with his brother. The learned Judge also found that the plaintiff alone was responsible for the litigation in the Gudivada Court and that he was a wrongdoer. On issue 7 his finding is:

I have no doubt that the plaintiff and defendant 1 colluded together and brought about the sale transaction with intent to defraud defendant 1's brother Venkataramayya.

4. In appeal, the learned District Judge confirmed the findings of the learned Sub-Judge on all, the above points, but he increased the interest payable by defendant 1 on Rs. 1,600. On the question regarding the plaintiff's right to recover costs which is the main point argued before me, the roarned District Judge gave the following finding:

It must therefore be taken that the plaintiff had knowledge of the sale to defendant 1's brother at the time he bought the land and his right to costs must be based upon that assumption. This being so, the transaction entered into between defendant 1 and the plaintiff seems to amount to a conspiracy to defraud defendant 1's brother, and if this be so, then the agreement to in demnify the plaintiff contained in the sale deed (Ex. A) would be illegal and contrary to public, policy.

5. I may here state that this latter observation refers to an agreement to indemnify contained in the sale deed on which special reliance was placed by the plaintiff in support of his claim for costs.

6. The main question of law for decision in this second appeal is this: Is the plaintiff a joint tortfeasor with defendant 1; and if so, is he entitled to recover the costs which he incurred in connexion with the Gudivada litigation conducted against him by defendant 1's brother? Before dealing with this question, I must first point out that this case is different from the class of cases where a person with the knowledge of a defect of the vendor's title to the lands takes a sale deed in his favour from the vendor. In such cases it has been held by this Court that

knowledge of the purchaser of the defect of title in his vendor does not affect his right to recover damages

when it is found that the sale deed is not enforceable: see the Full Bench decision in Adikesavan Naidu v. Gurunatha, Chetty (1917) 40 Mad. 338. The concurrent findings of the lower Courts show that the present case differs distinctly from that class of cases. Here the finding of the lower Courts is that the plaintiff, when he was told by defendant 1 that he had already entered into a contract with his brother to sell the suit lands to him, 'tempted'him to break that contract by offering to purchase the lands at a higher price and also undertaking to risk the consequences of the litigation that might ensue as a result of the breach of contract. The learned Judge says, as already pointed out, that they

colluded together and brought about the sale transaction with intent to defraud defendant 1's brother Venkataramayya.

7. The learned District Judge confirmed his opinion by saying that the transaction

entered into between defendant 1 and the plaintiff seems to amount to a conspiracy to defraud defendant 1's brother.

8. These findings which are binding on me in second appeal distinguish this case from the class of cases referred to above and show distinctly that the plaintiff is a joint tortfeasor along with defendant 1 with reference to the transaction in question. The plaintiff knew that there was a contract between defendant 1 and his brother; his interference in procuring a breach of that contract is a tort and is actionable. It is now the settled law that

an action lies for procuring a person under contract with the plaintiff to break his contract: see Pollock on Torts, p. 340.

9. In this case having regard to the findings of the Courts below I have no doubt that the plaintiff and defendant 1 are joint tortfeasors as held by the learned Sub-Judge and the learned District Judge.

10. The next question is, whether being joint tortfeasors, the plaintiff is entitled to claim contribution from defendant 1 with regard to the costs incurred by him in the Gudivada suit. In England it has been held in the well-known case of Merryweather v. Nixan 8 T.R. 185 that a suit for contribution between wrongdoers does not lie. The appellant argued that the principle of this decision should not be extended to India. Till very recently no definite pronouncement on this vexed question has been made by any Court in India; but in a recent decision of this Court, Palepu Narayanamurthy v. Komali Chandrayya A.I.R. 1927 Mad. 790, Waller, J., refused to follow this decision,

as in a case from Scotland, Palmer v. Wick Steam Shipping Co. [1894] A.C. 318, the House of Lords refused to follow that decision holding that it was not founded on any principle of equity.

11. I shall refer to this decision presently. In Siva Panda v. Jujusti Panda [1902] 28 Mad. 599, Benson and Bhashyam Ayyangar, JJ., observed that

No plea having been raised against the maintainability of the suit on the ground that the plaintiff and defendant were joint tortfeasors, it is unnecessary to consider how far the rule in the English case of Merryweather v. Nixan 8 T.R. 185, which Lord Herschell in Palmer v. W, and P. Steam Shipping Co. [1894] A.C. 318 felt bound to say did not appear to him 'to be founded on any principle of justice or equity or even of public policy, which justifies its extension to the jurisprudence of other countries,' should be followed in India or to consider the extent to which it was limited in England by the subsequent cases of Adamson v. Jarvies [1826] 4 Bing 66, Palmer v. Wick Steam Shipping Co. [1894] A.C. 318 and Burrows v. Rhodes and Jameson [1899] 1 Q.B. 816,

12. In Shakul Kameed Alim Sahib v. Syed Ebrahim Sahib, [1903] 26 Mad. 373 the following observations occur:

Even assuming the rule of law laid down in Merryweather v. Nixan 8 T.R. 185, forms part of the jurisprudence of this country (and this seems doubtful), see the observations of Lord Herschell in Palmer v. W. and P. Steam Shipping Co., [1894] A.C. 318 the doctrine does not apply to this case. In Merryweather v. Nixan, 8 T.R. 185, the suit was in tort. Here the suit was not in tort. Even the English doctrine is restricted to cases where it must bo presumed that the party knew 'he was committing an unlawful act; Pearson v. Skelton (9), or the act is of an obviously illegal character: Belts and Drewe v. Gibbons, [1834] 2 Ad. and E 57.

13. In Nihal Singh v. The Collector of Bulandshahr, [1916] 38 All. 237, it was observed: 'it is somewhat doubtful whether the doctrine of Merry weather v. Nixan, 8 T.R. 185, should be applied to India, but it is certain that it will not be extended: see the remarks of the other noble Lords who decided Palmer's case., [1894] A.C. 318, In our opinion however the question hardly arises in the present case.

14. It will be observed that

in one of these three last mentioned cases was the question, how far the rule in Merryweather v. Nixan, 8 T.R. 185, should be followed in India, was decided though having regard to the remarks of the noble Lords who decided Palmer's case, [1894] A.C. 318 doubts wore expressed whether the doctrine should be applied at all in this country.

15. It is now well recognized in England that the rule as between joint wrongdoers, one who has been sued alone and compelled to pay the whole damages has no right to indemnify or contribution from the other, was too widely laid down in Merryweather v. Nixan, 8 T.R. 185. This rule was considered in Palmer v. W. and P. Steam Shipping Co., [1894] A.C. 318. In that case a joint decree had been obtained against two persons for negligence. One of the judgment-debtors paid the entire amount of the decree and sued the other for contribution. The case came from Scotland. Lord Herschell observed at p. 324 of the report:

Much reliance was placed by the learned Counsel for the appellant upon the judgment in the English case of Merryweather v. Nixan, 8 T.R. 185. The reasons to be found in Lord Kenyon's judgment, so far as reported, are somewhat meagre and the statement of the facts of the case is not less so. It is now too late to question that decision in this country, but when I am asked to hold it to be part of the law of Scotland I am bound to say that it does not appear to me to bo founded on any principle of justice or equity, or even of public policy, which justifies its extension to the jurisprudence of other countries.

16. It is on the strength of this decision that it is now argued that the principle of the decision, in Merryweather v. Nixan, 8 T.R. 185, should not be applied in this case. In England by various decisions the application of the rule in Merryweather v. Nixan, 8 T.R. 185, has been limited to a special class of cases. The limits of the rule together with the oases bearing on the point are thus stated in Salmond on Torts at p. 103, para. 2:

The better opinion is that the rule in Merryweather v. Nixan, 8 T.R. 185 applies only to cases of wilful and conscious wrong-doing, and that it is not applicable to oases of mere negligence, accident, mistake, or other unintentional breaches of the law. In Betts v. Gibbons, [1834] 2 Ad. & E 57, it is said by Denman, C.J., the general rule is that between wrong-doers there is neither indemnity nor contribution; the exception is where the act is not clearly illegal in itself.

17. So in Adamson v. Jarvies [1826] 4 Bing 66 , Best, C.J. says:

From reason, justice and sound policy the rule that wrong-doers cannot have redress or contribution against each other is confined to cases where the person seeking redress must be presumed to have known that he was doing an unlawful act.

18. In Palmer v. W. and P. Steam Shipping Co., [1894] A.C. 318, Lord Herschell quotes these observations with special approval and regards them as establishing a right of contribution in a case of joint negligence. The learned author then states the statutory exceptions to the rule in Merryweather v. Nixan, 8 T.R. 185 and finally concludes by saying:

Except in the case of wilful wrong-doing, there is, if the foregoing interpretation of the rule in Mzrryweather v. Nixan, 8 T.R. 185 is correct, a right either of contribution or of indemnity between joint wrong-doers.

19. In similar language the limitation of the rule is stated also in Pollock on Torts: see the Edn. 13, p. 203. In Clerk and Lindsell on Torts (see p. 60) the limitation of the rule in Merryweather v. Nixan, 8 T.R. 185, is thus stated:

If an act is manifestly unlawful, or the doer of it knows it to be unlawful as constituting either a civil wrong or a criminal offence, he cannot maintain an action for contribution or indemnity against the liability which results therefrom. An express promise of indemnity to him for the commission of such act is void.

20. The statement is based on the authority of Burrows v. Rhodes and Jamson, [1899] 1 Q.B. 816. In that case Kennedy, J., observes thus:

It has, I think, long been settled law that if an act is manifestly unlawful, or the doer of it knows it to be unlawful, as constituting a civil wrong or a criminal offence, he cannot maintain an action for contribution or for indemnity against the liability which results to him therefrom. An express promise of indemnity to him for the commission of such an act is void, Where the circumstances constituting the unlawfulness of the act ate known to the door of it, his inability to claim contribution or indemnity appears to me to be clear.

21. The law thus stated was approved in Weld Blundell v. Stephens, [1920] A.C. 956. In W.H. Smith and Son v. Clinton and Harris, [1908] 99 L.T. 840, the law was thus summarized by Coleridge, J,:

The law appears to me to be as follows: It was very clearly discussed whether there was any implied contractual relation between two joint tortfeasors so as to entitle one to contribution against the other, where one suffered all the consequences of the wrong doing. The result of the various decisions seems to be that where one person requests another to commit an indifferent act, of which the illegality does not appear but which may subsequently be proved tortious, the contractual relation may arise; and where one party induces another party by fraud to commit a tortious act and that other party does not in fact know and need not be presumed to know that he was doing an unlawful act, he may have redress or contribution. The principle however of there being no contribution between tort-feasors is confined to cases where the party seeking redress or contribution may be presumed to know that he was committing an unlawful act.

22. From a consideration of the above authorities two points emerge, viz., (1) that though the rule in Merryweather v. Nixan, 8 T.R. 185, is not applicable in its broadest form, still if an act is unlawful or the doer of lit knows it to be unlawful as constituting either a civil wrong or a criminal offence he cannot maintain an action for contribution or for indemnity against the liability which results to nim therefrom; and (2) that an express promise of indemnity to him for the commission of such an act is void.

23. Now the question is why should not the rule in Merryweather v. Nixan, 8 T.R. 185, as modified by the subsequent decisions in England and followed in that country ha not followed in the present case? There may be no equity or reason or justice in support of the rule in its broad form but in its modified form which confines the application of the rule to cases where the doer of the act knows that the act ha commits to be unlawful as constituting a civil wrong or a criminal offence and then deliberately brings about the commission of such an act, why should the door be helped in claiming contribution against the liability resulting from his action? Surely, the plea that there is no justice or reason behind the rule cannot be urged against the modified form of the rule in Merryweather v. Nixan, 8 T.R. 185 for, it prevents contribution being claimed only by persons who knowingly commit an unlawful act. However much one may not be inclined to extend the rule in Merryweather v. Nixan, 8 T.R. 185 more than is absolutely necessary, I see no reason against the modified rule in that cage being applied in India as in England. If the modified form of the rule may be followed here as in England the answer to the question whether the plaintiff is or is not entitled to claim contribution in any particular case would depend upon the circumstances of that case. Having regard to the circumstances of the present case which I have narrated above, I think this is a proper case in which the modified rule in Merryweather v. Nixan, 8 T.R. 185, which obtains in England, may well be applied. In this case the plaintiff knew well that defendant 1 had already entered into a contract with his brother for the sale of the lands; in spite of the information which was given by the defendant he 'tempted'him to break the contract by offering a higher price and undertaking all the risks of the litigation that may happen as a result of the breach of the contract. As stated by the learned District Judge, he conspired with defendant 1 to defraud defendant 1's brother by persuading him to break the contract which he (defendant 1) had entered into with him. He has clearly committed an act which is a civil wrong and he has done that with intent to injure defendant 1. In this connexion I must also mention that the circumstances of the previous litigation show that the respondent was merely a formal defendant in the previous suit and not personally interested in the result of it This is clear from the fact stated by the learned District Judge that:

defendant 1 (respondent) did not contest that litigation and the litigation was carried on solely by the plaintiff (appellant).

24. I would also refer to the finding by the District Munsif on issue 1-a, already referred to that the appellant undertook 'to risk the consequences of the litigation, if any, with Venkataramayya,'as alleged by the respondent. If so, apart from all other considerations, why should the appellant be allowed to claim contribution from the respondent regarding the costs of that litigation? In these circumstances I am inclined to bold, following the rule of English law enunciated in the cases above referred to, that the plaintiff should not be allowed to claim contribution from defendant 1 for his costs incurred in the Gudivada suit. To allow him to claim contribution in this case would, in my opinion, be unjust and unreasonable My attention was drawn by the respondent to the decision of the Calcutta High Court in Gobind Chunder Nundu v. Sri-gobind Choudhury, [1897] 24 Cal. 330. In that case:

S granted to G and A a putni of a certain share in a zamindari, and thereupon P brought a suit against G, S and A for specific performance of an agreement to grant to him (P) the same share. That suit was decreed with costs, the whole of which was realized from G, In a suit for contribution brought by G against S and A the lower appellate Court found that G S and A had conspired in setting up a false defence in the former suit in order to defeat P's claim. It was held in second appeal that, assuming such collusion were proved, the suit for contribution was not maintainable, G, S and A being joint wrong doers.

25. It may be, as pointed out in Mahabir Prasad v. Darbhangi Thakur, [1919] 4 Pat. L.J. 486, that the denial by the defendants of a state of facts known by them to be true may not amount to an act legally wrongful disentitling one defendant from claiming contribution from the other with respect to the costs paid by him; still the case is an instance where a Court in India has not refused to apply the principle of non-contribution among joint tortfeasors. The decision in Mahabir Prasad v. Darbhangi Thahur, [1919] 4 Pat. L.J. 486 was not cited before me in the course of the arguments. 1 find that decision is a clear authority in support of the position which I have sought to establish in the foregoing paragraphs of this judgment, that there is no reason why in spite of the decision in Palmer v. W. and P. Steam Shipping Company, [1894] A.C. 318 we should not apply in India the modified rule in Merryweather v. Nixan, 8 T.R. 185 in a proper case. In that decision Dawson Miller, C. J., with whom Adamji, J., agreed observed:

That the rule of noncontribution between joint tortfeasors exists in India cannot, I think, be questioned; but the authorities appear to show that it ought only to apply to oases where the parties are wrong doers in the sense that they know or ought to have known that they were doing an illegal or wrongful act.

26. The learned Chief Justice further pointed out:

It seems clear...that the doctrine of contribution is well recognized in this country and that the only cases in which it will not be enforced are those in which a liability arises out of a joint wrong or where the equities of the case demand that the plaintiff should not recover or where the party sued was merely a formal defendant in the previous suit and not personally interested in the result of it. Again, there may be cases where it is just and proper that the liability should be apportioned in equal shares.

27. I may state that in laying down these propositions the learned Chief Justice has given full weight to the view of Lord Herschell, L.C., in Palmer's case, [1894] A.C. 318 that although it is now too late to question the decision in Merryweather v. Nixan, 8 T.R. 185 it did not appear to be founded on any principle of justice or equity which would justify its extension to the jurisdprudence of other countries. The present case falls strictly within the rule , of noncontribution as laid down in Mahabir Prasad v. Darbhangi Thahur, [1919] 4 Pat. L.J. 486. I have already stated in full the circumstances which, in my view, disentitle the appellant from claiming contribution from the respondent. From the facts of the case, so far as can be gathered from the judgment in Palepu Narayanamurthy v. Komali Ghandrayya A.I.R. 1927 Mad. 790 it does not appear whether the plaintiff in that case was guilty of any wilful wrong doing as the plaintiff certainly was in the present case. If he was not so guilty, then he would certainly be entitled to contribution from the defendant and the case would in that view in no way conflict with the view which I have expressed above.

28. In support of his claim to contribution the plaintiff relied not only on the general law but also upon an agreement to indemnify him contained in the sale deed, Ex. A, executed in his favour by defendant 1. In Ex. A he states:.if so, we or our heirs or relations, shall not raise any disputes at any time against you, your heirs and relations. I have not caused any alienations such as mortgage, sale etc., to others till now, in respect of this property. If any disputes should arise from any one in respect of this sale I shall settle them all at my own cost and allow you to enjoy this sale uninterruptedly....

29. In the first place, I am not sure whether the promise contained in the last sentence really amounts to an agreement to indemnify the plaintiff for costs in the litigation that may subsequently happen. Having regard to the context in which the last sentence appears, it is difficult to say that the defendant has thereby entered into an independent agreement to Indemnify the plaintiff. In that statement I think he only intended to affirm that he had a good title to the lands which he was prepared to defend if necessary. The District Judge's view of the agreement is this:

Further, as to the promised indemnity contained in Ex. A it could hardly have been contemplated, assuming for a moment that the intention of the parties was innocent, to indemnify the plaintiff against a law, in the title which the plaintiff knew at the time of the contract to exist; defendant 1 could only be taken to have agreed to indemnify the plaintiff against defects in the title and a litigation arising therefrom of which the plaintiff was not aware.

30. This is quite a possible view. In the second place, even if this amounts to an agreement to indemnify, it is clear from the decisions which I have already quoted, Burrows v. Rhodes and Jameson, [1899] 1 Q.B. 816 and W. H. Smith and Son v. Chinton and Harris, [1908] 99 L.T. 840, that such an agreement cannot be given effect to. In the latter case,

the defendants gave to the plaintiffs who were printing and publishing a paper for them, an undertaking that they, the defendants, would indemnify the plaintiffs against any claims whatever that might be made against them in respect of any libel that might appear in the paper. A libel was inserted in the paper with the knowledge of the plaintiffs' staff and an action was brought against the plaintiffs in respect thereof which they had to compromise by paving a certain sum of money and costs. In an action on the undertaking to indemnify, it was held that such a coatract could not be enforced in law.

31. For the above reasons, I hold that the plaintiff is not entitled to claim contribution from defendant 1 with regard to the costs incurred by him in the Gudivada Court nor is he entitled to claim any damages. The second appeal fails and is dismissed with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //