1. The appellants are defendant 4 and the legal representative of defendant 3 in a suit for contribution based on a payment, made by the plain-tiffs who own lands in the same holding of which defendants 2 to 4 are pattadars, in order to save the holding from sale for arrears of rent due to defendant 1 the usufructuary mortgagee from the zamindar. The trial Court found most of the issues in favour of the plaintiffs but dismissed the suit on the, ground of nonjoinder of parties. The learned District Judge held that it was possible to give a just decree against defendants 2 to 4 without impleading others who are alleged to be in possession but had not been impleaded and that non-pattadar defendants 5 to 31 were not liable to pay rent to defendant 1 and are therefore not liable to contribute to the plaintiffs and remanded the suit for disposal by the trial Court. The two main arguments in appeal before this Court are: (1) that the suit is bad for non-joinder of parties; and (2) that the suit is barred by limitation.
2. The question of non-joinder depends on the following averments in the written statement of defendants 8 to 30 : 'These defendants submit that there are several others who are in enjoyment of lands pertaining to Schedule C properties and they are essential parties to the suit'. It seems to me that on such a pleading no issue such as that which was framed by the learned District Munsif really arises. If the defendants wish to object to a suit on the ground of non-joinder of parties, it is to my mind clearly incumbent upon them to state who are the parties that should have been joined and what is the nature of their interest in the suit. It is true that one of the defendants in his evidence gives the names of certain people who are alleged to be in possession of certain pieces of property included in the holding. Whether they are in possession as tenants or as licensees or benamidars we do not know. But whatever be the facts, I do not think that it was incumbent on the plaintiffs to make researches to discover the identity of supplemental defendants who in their opinion were not necessary, at any rate until the defendants raising the objection had given such information as would enable the plaintiffs to implead them. No do I think that it was necessary for the plaintiffs to take the trouble themselves by serving interrogatories upon the defendants to ascertain the names of possible supplemental defendants. Holding therefore as I do that this issue regarding non-joinder was raised on inadequate materials, it seems to me unnecessary to go therefore into the question whether the suit was liable to be dismissed by reason of the nonjoinder of persons whose names even now are not formally before the Court.
3. The question of limitation is one in which there is more substance. So far as this suit asks for personal reliefs against the defendants it seems to me clearly to fall either under Article 61 or under Article 99, Lim. Act, and it is immaterial which of these two Articles is applied since the period of limitation in both is three years from the date of payment. Both the Courts below have accepted the view which is taken in Aaanda Mohan Roy v. Maniruddin Mahomed 1917 36 IC 392 that the phrase 'date of payment' in. Col. 3 of both these Articles means the date on which the payment into Court was made effective by the appropriation of money to the sale which is to be set aside. That view seems also to be adopted in the later case, Gahar-Ali-Havaldar v. Abdul Owabab Shikdar 1928 56 Cal 192, in which it is observed that the criterion as to the date of payment must be the date on. which the plaintiff lost dominion over the money which he paid, and then it is assumed that the plaintiff continues to have dominion over the money which he has paid into Court to set aside a sale or in satisfaction of a decree until that money is appropriated by formal proceedings of the Court. With all respect, I find myself unable to agree either with the conclusion arrived at in this case or with the reasons upon which it is based.
4. I cannot accept the view that a person who makes a payment into Court to set aside a sale continues to have dominion over that money till the sale is set aside. Surely the correct view is that the Court has dominion over the money from the time when he paid the money into Court until the time when it is paid out to the decree-holder. Nor do I think it right to read into the Limitation Act words which are not there when the words which are there have themselves a clear and unmistakable meaning. Article 61 reads 'For money payable to the plaintiff for money paid for the defendant,' 'Three years from when the money is paid.' There is no such phrase as 'When the money is. paid effectively' or 'when the money is paid to the creditor of the defendant.' Still less is there any such phrase as 'When the sale is set aside.' It seems to me that any suit for contribution implies a detriment to the plaintiff and a benefit to the defendant. The Legislature in deciding arbitrarily the chosen point from which limitation should begin to run in such suits, chose the moat easily determined point, namely the date upon which the plaintiff suffered detriment by making the payment. If in the circumstances of the case there is interval of time between the date on which the plaintiff makes the payment and the date on which the defendant receives the benefit, the wording of the statute to my mind makes it quite clear that it is the former date which is the governing factor for purposes of limitation and not the latter.
5. I have not been directed to any Madras case which explicitly deals with this point and the case quoted by the learned District Munsif, that of Pattabhi Ramayya Naidu v. Ramayya Naidu (1897) 20 Mad 23, deals with quite a different situation, namely, that in which a debt due by the defendant is discharged by the sale of property belonging to the plaintiff, so that actually in such a case there is no payment at all until the proceeds of the sale are brought into Court. The position in such a case is quite different from that in which the plaintiff himself pays the money into Court to set aside a sale which has already been held. In the absence therefore of direct authority of this Court I prefer to follow the plain words of the Limitation Act and hold that, so far as the personal remedy is concerned, limitation must run from the date on which the payment into Court was made by the plaintiff, and it is quite clear that that date is more than three years prior to the date on which this suit was filed. This however does not dispose of the suit. The plaintiff expressly says
that the remaining Rs. 689 or such sum as may be found due by defendants 2 to 81 during the trial, with interest thereon from 12th September 1928 at one per cent per mensem, to be realised according to their proportion due by defendants 2 to 31 from those defendants or from the 0 schedule properties in the possession Of the defendants after declaring the charge which the plaintiffs have over them.
6. The learned District Munsif holds that the plaintiffs are entitled to a charge and that to the extent to which they claim a charge the suit falls under Article 132, Lim. Act, and is in time, regardless of the decision on the starting point for purposes of Articles 61 and 99. The learned District Judge finds that the suit is within time even if the shorter period of limitation is applied and does not therefore go into the question whether the plaintiffs have or have not a charge on the land. It seems to me to be well established that when a co-sharer pays Government revenue which is due on a holding in order to save that holding from sale for arrears of revenue he is entitled to step into the shoes of the Government and claim a first charge over the holding in respect of the amount due from his co-sharers towards the arrears which he has paid. There was at one time some doubt on the question whether such a charge would take precedence over mortgage rights; but that doubt has in my opinion been set at rest by the decision of a Bench of this Court in Chengalroya Reddi v. Udai Kavour, Since reported in 1936 Mad 752 which has not yet been reported in full though a short note of it can be found at 69 M L J 43. We are not, however, at this stage concerned with the question whether the plaintiffs have a first charge in preference to a mortgagee over this land, but whether they have a charge which they can enforce at all, and it has, I think, been long established that there is a charge in circumstances such as these, which charge is in no way different when the arrears paid are arrears due to the zamindar under the Madras Estates Land Act from the charge which results when they are arrears due to the Government in respect of land revenue.
7. Section 5, Madras Estates Land Act,] gives the landholder a first charge over the holding in respect of his rent and, in my opinion, any co-sharer who in order to save the property from sale for arrears of rent due under the Estates Land Act pays more than his share of the arrears, is entitled to something in the nature of a salvage lien as against his co-sharers for the amount which he has paid. In this view I hold that the suit, so far as it is a suit to recover the amount paid on behalf of the appellants by the enforcement of the charge against the holding in their possession, is not barred by limitation. I therefore dismiss the appeal with costs and direct the trial Court to proceed with the trial in the light of the observations in this judgment. (Leave to appeal is refused.)