Ganapatia Pillai, J.
1. These three appeals arise out of a common judgment of the Subordinate Judge of Tanjore in the following six suits : O.S. Nos. 14, 15, 16, 21, 22 and 24 of 1949. All the suits were for contribution, and, in the alternative, for partition, against defendants 1 to 17 in those suits, who are the successors-in-interest of one AL. AR. Arunachalam Chettiar. Some other defendants were also impleaded in all these suits, but as against them, no relief of contribution was claimed. The alternative claim for partition of the properties was given up in the lower Court and is not in issue now. The appellant in A.S. No. 150 of 1952 is the plaintiff in O.S. No. 14 of 1949. The appellant in A.S. No. 151 of 1952 is the plaintiff in O.S. No. 22 of 1949, and the appellants in A.S. No. 580 of 1955 which was originally filed in the District Court, West Tanjore, but subsequently transferred to this Court are the plaintiffs in O.S. No. 21 of 1949.
2. All the suits related to a common claim by the different plaintiffs. The claim arose under the following circumstances. On the death of the last Rani of the Tanjore Raj, there were several claimants to the properties she left and the receiver in possession of the properties filed an inter-pleader suit which was ultimately numbered as O.S. No. 3 of 1919 on the file of the District Court, West Tanjore. By the preliminary decree in that suit passed on 1st July, 1918, defendants 1 and 2 therein, sons of the adopted son of the late Raja of Tanjore, were declared entitled to a one-fourth share, and defendants 4 to 11 in that litigation, known compendiously as Mangala Vilas defendants, were declared entitled to the remaining three-fourth share. During the pendency of the appeal against this preliminary decree in the High Court, the successful claimants in the lower Court were allowed to withdraw from Court monies collected and deposited by the receiver in possession.
3. On 29th January, 1923, that is, even before the appeal against the preliminary decree was disposed of in the High Court, AL. AR. Arunachalam Chettiar purchased a half share of the properties allottable to defendants 8, 9, 11, 25 and 26 in that suit. Soon after the purchase, Arunachalam Chettiar got himself impleaded as defendant 31 in the suit. The High Court modified the preliminary decree of the lower Court on 21st February, 1924, by reducing the share of the Mangala Vilas defendants from three-fourth to three-seventh. In the final decree passed in the case on 27th February, 1926, a charge was created over the entire properties allotted to the Mangala Vilas defendants for repayment of the excess amount drawn by them before the preliminary decree was modified in appeal by High Court. By the same decree, for the half share of properties purchased by Arunachalam Chettiar specific items were allotted to him and they form Schedule 12 to the decree. These properties also were subject to the charge created in favour of defendants 1 and 2, who could be called the legitimate descendants of the Rajah as against Mangala Vilas branch, who constituted the illegitimate descendants of the late Rajah. Though the purchase made by Arunachalam Chettiar was made in his name, it is common ground that the funds for this purchase were provided in 25 shares by a number of people. Arunachalam Chettiar himself contributed 13 1/4 shares. Defendants 18 to 20 in O.S. No. 14 of 1949 contributed six shares ; and the remaining shares were contributed by the plaintiffs in O.S. No. 14 of 1949, the fathers of defendant 21, of defendants 22, 23 and 26 and of defendants 24 and 25. The properties acquired by Arunachalam Chettiar could not be divided immediately, because an appeal to the Privy Council against the appellate decree was pending and it was disposed of only on 27th February, 1936. Immediately thereafter, defendant 23 in O.S. No. 14 of 1949 instituted a partition suit, O.S. No. 21 of 1936, in the Sub-Court, Tanjore, and a final decree was obtained in that suit, allotting equally to all the 25 shares all the properties acquired by Arunachalam Chettiar. But no provision was made for the discharge of the liability imposed by the final decree in the palace suit, O.S. No. 3 of 1919 for restitution of the excess amounts drawn by the Mangala Vilas defendants. The claim, in substance, in the cases with which we are now concerned, are that these plaintiffs had been forced to pay sums, by execution being levied against properties allotted to them under the partition decree in O.S. No. 21 of 1936, more than their due share of the common burden and this was sought to be recovered from those sharers who had contributed less than what they should have contributed.
4. The main contesting defendants were the successors-in-interest of AL.AR. Arunachalam Chettiar, who could be compendiously called AL.AR. group. Various defences were put forward and a number of issues were raised to cover those defences by the lower Court. It may not be necessary for the disposal of these appeals to refer to all those defences.
5. The learned Subordinate Judge held that the plaintiffs in these suits were not entitled to contribution. His reasoning for reaching this conclusion can be stated thus. The basis of contribution is not personal. It arises out of possession of property. The only statutory provision which would sustain such a claim is Section 82 of the Transfer of Property Act. By the consent partition decree, even the liability to contribute based on Section 82 of the Transfer of Property Act has been abolished. Therefore, every sharer, to whom property was allotted under the partition decree, must bear the burden of the restitution charge without any recourse to other sharers who got properties under that decree. The learned Subordinate Judge also found that the suit was bad for multifariousness. The respondents in this appeal did not seek to justify this finding of the learned Judge and we are unable to see any reason why the suit was bad for multifariousness. The only reason given by the learned Subordinate Judge for his conclusion upon this issue was that all the materials necessary for enabling him to work out the liability of the defendants for contribution were not before Court, and therefore he was justified in holding that the plaintiffs were not entitled to contribution. In support of this conclusion, the learned Judge relied on the Privy Council decision in Faqir Chand v. Aziz Ahmed (1931) 62 M.L.J. 492 : L.R. 59. IndAp 106 : I.L.R. (1931) All. 199. We are unable to see what relevance this decision has on the question of multifariousness. Nor are we able to agree with the learned Subordinate Judge that the materials placed before him for ascertaining the amount payable by each set of defendants were insufficient. We do not therefore agree with the trial Judge that these suits should be dismissed on this ground.
6. Mr. T. Venkatadri, learned Counsel for the respondents, made no attempt to justify the finding of the trial Judge that the basis of the claim for contribution is the statutory provision in Section 82 of the Transfer of Property Act. That section reads thus:
Where property subject to a mortgage belongs to two or more persons having distinct and separate rights of ownership therein, the different shares in or parts of such property owned by such persons are, in the absence of a contract to the contrary, liable to contribute rateably to the debt secured by the mortgage, and, for the purpose of determining the rate at which each such share or part shall contribute, the value thereof shall be deemed to be its value at the date of the mortgage after deduction of the amount of any other mortgage or charge to which it may have been subject on that date.
Where, of two properties belonging to the same owner, one is mortgaged to secure one deb and then both are mortgaged to secure another debt, and the former debt is paid out of the former property, each property is, in the absence of a contract to the contrary, liable to contribute rateably to the latter debt after deducting the amount of the former debt from the value of the property out of which it has been paid.
These two paragraphs of the section deal with two instances of a claim for contribution arising under a mortgage. The first deals with a case of a mortgage over one property owned by two or more persons in distinct and separate rights. The second deals with a case where, out of two separate properties belonging to the same owner, one is mortgaged to secure one debt, and, subsequently, both are mortgaged to secure another debt. The property which is subject to both the debts is held liable to contribute rateably to the second debt only after deducting the amount of the former debt from the value of the property out of which it has been paid. In both these cases, the right of contribution is available only against persons who stand in the position of co-mortgagors or their successors-in-interest or against the same property subject to two different mortgages. But the basic principle on which this section proceeds is the unity of the mortgage debt. The first part of this section deals only with one mortgage debt over one property owned by more than one person. But the second part of the section deals with more than one mortgage debt. Here again, the principle of contribution comes into existence only with reference to the liability of the item of property which had borne the burden of more than one mortgage debt.
7. Applying Section 82 to the facts of this case, it will be evident that, if at all, it could have been invoked only severally by defendants 8, 9, 11, 25 and 26 in the Mangala Vilas group on the basis of the restitution charge against each set of defendants as the unit. By the clause in the final decree which gave this restitution charge, no common burden was cast upon all these defendants, each one of whom or one or other of whom forming a group was made liable to pay specified sums either to the first defendant or to the second defendant, the legitimate descendants of the Rajah. All these defendants, namely, defendants 8, 9, 11, 25 and 26, could not have formed a group for the purpose of a claim of contribution based upon Section 82 of the Transfer of Property Act, because, admittedly, the clause in the decree did not create a common restitution charge against these defendants on all the properties allotted to them for the amounts payable separately to defendants 1 and 2. In the first place, the amount repayable to the first defendant was a separate charge, just as the amount repayable to the second defendant was the subject of a separate charge. In respect of these two separate charges, the Mangala Vilas group of defendants were liable not together, but separately in respect of the properties allotted to them. The effect of the purchase by Arunachalam Chettiar of a half share of the properties allowable to all these defendants, namely, the Mangala Vilas group, was to convert the separate liability of these various defendants in respect of the restitution charges into a, common liability, to which Section 82 cannot in terms apply.
8. The only other statutory provisions relating to contribution are Section 43 of the Indian Contract Act and Section 92 of the Transfer of Property Act. For the same reasons for which Section 82 has been held by us to be not applicable in terms to the liability in this case, Section 92 of the Transfer of Property Act also would not apply. Section 43 of the Contract Act deals with a liability for contribution arising out of an express contract. That is not the case here. Therefore, we have got to find out the legal basis for the claim for contribution. In our opinion, apart from these statutory provisions, a claim for contribution can be made, founded on the principle of a common burden shared by many people, but discharged by one, with the result that the remaining sharers enjoyed the benefit of that discharge. This principle of law applies in many situations as between co-tenants and sharers in properties held in common like partners, coparceners and co-owners. In the case of co-tenants, Freeman, in his standard work on Co-tenancy & Partition, Second Edition, pages 321 and 322, describes this liability thus:
The liability to contribute is the result of a general equity, founded on the quality of burthens and benefits. To establish the right of contribution, the plaintiff must show that his payment has removed a common burthen from the shoulders of himself and the defendants and that they are each benefited by it. This occurs in all cases of payments made by one surety, on the debt for which several are bound a common burthen is removed and a common benefit received. But the doctrine of contribution is not at all founded on contract :...So too, it applies to cases where the liability does not, in any shape, arise out of a contract, as when a common property, held by purchase, descent, or devise, is liable to the payment of a sum of money, and one is compelled to pay the whole, he shall have contribution from his co-tenant...Precisely, the same right of contribution would have arisen if the parties, instead of being co-tenants, had been owners in severalty of lands embraced in and subject to the same mortgage or other lien.
The same principle is expressed thus in Lindley on Partnership, 11th edition, at pages 454-455:
An agreement may undoubtedly give rise to a right to indemnity or contribution ; but the absence of an agreement giving rise to such a right is by no means fatal to its existence. The general principle which prescribes equality of burden and of benefit is amply sufficient to create a right of contribution in many cases in which it is impossible to found it upon any genuine contract, express or tacit. The common feature of such cases is that one person has sustained some loss which would have fallen upon others as well as upon himself, but which has been averted from them at his expense.
As examples, Lindley gives the following instances:
(a) Where one tenant-in-common repairs the common properly, and so saves it from destruction ;
(b) Where one of several sureties pays a debt for which all are liable ;
(c) Where one person has his goods thrown overboard in order to save the ship and the rest of its cargo.
It will be noticed that the basis of contribution in all these instances is not only the common ownership of property, but also a common liability which was discharged by one person conferring benefit upon the other persons, subject to that liability. This being, in our opinion, the true principle, the liability to contribute in this case ' arose by reason of the common purchase of the properties by Arunachalam Chettiar. It is true that different items of properties purchased were subject to different liabilities for restitution in favour of defendants 1 and 2 in the palace suit; but, as amongst the 25 sharers who purchased the property, namely, the half share belonging to the Mangala Vilas group of defendants, the totality of the burden upon the various properties included in the purchase for the sums due to defendants 1 and 2 is the common burden of all the purchasers. There is no case here of any contract or agreement between the purchasers as to the distribution of this burden. Therefore the principle of equality of benefit is based upon the corollary of equality of liability. Thus, the right of contribution in this case arises by reason of the common purchase of the several properties which were subject to several burdens. Having said that there was no agreement among the common purchasers as regards the distribution of this burden at time of the purchase, we must notice that there was also no agreement among them at the time when a consent partition decree was passed in O.S. No. 21 of 1936. We have perused the Commissioner's report in this case to satisfy ourselves that the burden of the restitution charge in favour of defendants 1 and 2 existing over these properties which were partitioned, was not taken into account for effecting the division. This circumstance, curiously enough, is stressed both by the learned trial Judge and by learned Counsel for the respondents as the basis of escape from liability for contribution. In our opinion, just the reverse is the true inference.
9. This general principle of law, namely, equality of burden and equality of benefit as the basis of the claim for contribution has been recognised both by the Privy Council and by our Supreme Court. In Mohammad Kazim Ali Khan v. Mohammad Sadiq Ali Khan (1938) 2 M.L.J. 210, the Privy Council had to deal with a claim of a sharer who had paid off the dower debt of a widow of a deceased Mohamedan. This debt was discharged from out of some of the properties of the deceased, and, when a claim for contribution was laid against all the sharers who had taken the properties of the deceased, it was upheld and the reasoning appears from the following passage:
It is not necessary that the plaintiffs should found upon an actual or implied promise in seeking contribution from the defendants in the events which have happened. Whether or not Sections 69 and 70 of the Indian Contract Act are wide enough to cover the case, the root of the plaintiffs' claim is their right to a due administration of the estate of the deceased. 'The reason given in the books is, that in aequali jure the law requires equality: one shall not bear the burthen in case of the rest', Dering v. Earl of Winchelsea (1787) 2 Bos. 4 Pul. 270 and 1 Cox. 318 : 29 E.R. 1184. 'The principle established in the case of Dering v. Earl of Winchelsea (1787) 2 Bos. 4 Pul. 270 and 1 Cox. 318 : 29 E.R. 1184 is universal, that the right and duty of contribution is founded on doctrines of equity ; it does not depend upon contract' : Ramskill v. Edwards (1885) L.R. 31 Ch. D. 100. This has been settled law in India since Rambux Chittangeo v. Modoosoodhun Paul Chowdhry (1867) 7 W.R. 377, a Full Bench decision of the High Court at Calcutta in Sir Barnes Peacok's time, which contains a careful exposition of the matter from an Indian stand point.
We must now consider the contention of Mr. Venkatadri, which relates to the mode of application of the principle of contribution. His argument was that the plaintiffs in all these suits have taken the properties allotted to defendants 25 and 26 in the palace suit under the partition decree and that therefore their claim to contribution should be confined only to those persons who have taken shares along with them in the properties which belonged to defendants 25 and 26. In support of this contention, he referred us to a prior suit, O.S. No. 57 of 1947, on the file of the Subordinate Judge, Tanjore, and the Judgment of this Court on appeal there from. It was contended that the plaintiffs in that suit had asked for contribution only against properties allotted to defendant 11 in the palace suit and against those sharers who had taken these properties under the partition decree. We have looked into the Judgment of this Court in that appeal and we find that Section 82 of the Transfer of Property Act was applied to the determination of the liability. That suit was laid by a purchaser of one item allotted to defendant 11 in the palace suit against purchasers of other properties allotted to the same defendant. It is not clear to us from the Judgment of this Court that the other sharers concerned in the purchase made by Arunachalam Chettiar were made parties to that suit. In the present batch of suits also, other sharers besides defendants 1 to 17 are made parties ; but no claim for contribution is made against them on the ground that the properties allotted to them have already borne more than their due share of the common liability. We are not able to ascertain whether in O.S. No. 57 of 1947 that was the reason for confining the claim for contribution against those sharers who had taken the properties of defendant 11 in the palace suit by reason of the partition decree. There is also one other ground of distinction between the two cases. Here, we are dealing with more than one charge, whereas, in the other suit, the right to contribution was based only upon the charge created against the properties allotted to the nth defendant alone. Without knowing all the facts of the prior litigation, it is not possible for us to say anything more upon the nature of the claim in that litigation. Even conceding that the claim was confined to the sharers in the group to which the plaintiff in that prior suit belonged, the t would be no ground for denying relief to the present plaintiffs.
10. Next, Mr. Venkatadri raised the question whether the properties allotted originally to the shares of defendants 8 and 9 by the final decree in the palace suit should be made liable for the claim in the present suit. His contention was that this liability had been scaled down under Madras Act IV of 1938, and, those properties or the persons who had obtained those properties under the partition decree had paid up the entire amount due as scaled down against defendants 8 and 9. That question does not arise for consideration now. Though we may say that, if there was a common liability as between all the 25 sharers, the mere fact that the properties allotted to some of these sharers bore a correspondingly lesser liability than the others, would not be a circumstance to escape contribution. The allotment of these properties to those particular defendants under the partition decree was only an accident, and this, in our opinion should make no difference in the matter of contribution. We are of course aware that the entire liability is to be pooled and shared equally among all the sharers, and, if on such account-taking the sharers who have been allotted the properties which originally belonged to defendants 8 and 9 are found to have paid more than their proportionate share of the common liability, certainly, they would not be called upon to contribute. But this is not on the ground that the properties allotted to them bore a proportionately less liability than the other properties. This would be on the ground that they have already contributed more than their due share of the common liability, taking the entire amount due under the restitution charges to defendants 1 and 2 together.
11. We therefore reverse the finding of the learned trial Judge that no right of contribution exists in the plaintiffs who are the appellants before us. The dismissal of these suits by the trial Judge is set aside. We are unable to pass any preliminary decree for contribution straightaway, because, both the learned Counsel agree that further pleadings will have to be filed and documents would have to be produced to fix the exact amount collected from each sharer and the exact amount due for the total liability in favour of defendants 1 and 2 in the palace suit. These figures can be worked out only on further pleadings being filed, and, if necessary, on further evidence being taken. We therefore remand these suits for disposal to the lower Court. Liberty is given to both parties to file further pleadings and to lead further evidence, if necessary.
12. The costs of these appeals will be provided for in the revised decree to be passed by the lower Court.
13. The Court-fee paid on the memoranda of appeal shall be refunded to the appellants.