1. This appeal is directed against the judgment of the learned Subordinate Judge of Birbhum affirming on appeal the judgment and decree of the learned Munsif of Bolpur in a suit for contribution. The facts out of which this suit arose may be shortly stated thus:
Durgadas Kundu and others are eight annas cosharer landlords of a certain holding the original rental of which was Rs. 8-14-3 but which was subsequently enhanced to Rs. 10-2-3 by proceedings under Section 105, Ben. Ten. Act. The plaintiff and defendants 1 to 3 are cosharer tenants of that holding. The landlords obtained an ex parte decree against the plaintiffs and defendants 1 to 3 for arrears of rent for the period from 1335 to 1338 B. S. In execution of that decree the decree-holder attached certain properties of the plaintiff and in order to save those properties from sale the plaintiff deposited the decretal dues and costs amounting to Rs. 35-4-6. The plaintiff had also to incur costs amounting to 10 annas 3 pies in connexion with payment of the dues into Court.
2. In the course of the plaintiff's suit for contribution against defendants 1 to 3, it transpired that the plaintiff and defendants 2 and 3 were brothers, and that they possessed equally a fractional jama, Rs. 2-10-0 out of a total jama of Rs. 8-14.3 and that the balance of the jama to the extent of Rs. 6-4.3 was held by defendant 1. Defendants 4, 5 and 6 were subsequently impleaded. Defendant 4 was the purchaser of a portion of the jama held by defendant 1. Upon the allegation that defendant 4 had paid to defendants 5 and 6 the rent due from her in respect of her share for the year 1338 B. S. the plaintiff claimed that defendants 5 and 6 were liable to refund the amount received by them from defendant 4. In both Courts below the claim of the plaintiff as against defendant 1 has been allowed and a decree for the sum of Rs. 24 passed by the Munsif against defendant 1 has been affirmed by the lower Appellate Court. The plaintiff's claim as against the other defendants was negatived by both the Courts below. In this appeal it has been contended that defendants 5 and 6 should be compelled to reimburse the plaintiff to the extent of the rent received by them from defendant 4 in respect of the year 1338 B. S. As against defendant 4, it is contended that as she is the purchaser of a portion of the jama held by defendant 1 she also is liable to contribute. These contentions may be dealt with at the outset. In my judgment the claim of the plaintiff to be reimbursed by defendants 5 and 6 is not maintainable in a suit for contribution. These defendants are the landlords who, it is alleged, have been paid twice over a portion of the rent payable in respect of the entire jama. Clearly, there is no mutuality between themselves on the one hand and the plaintiff and the other defendants on the other, and it is not possible to say that they come within the provisions of Section 69, Contract Act, which is in these terms:
A person who is interested in the payment of money which another is bound by law to pay and who therefore pays it, is entitled to be reimbursed by the other.
3. The ex parte decree obtained by defendants 5 and 6 for the rent of this jama has not been appealed against. It is clear that whatever be the remedy the plaintiff may have against these defendants, it cannot be by way of a suit for contribution. As regards defendant 4, it was not disputed in these proceedings that she had paid that 'portion of rent due from her to defendants 5 and 6. Her interest in the jama was separately recognized by the landlords and she was not a defendant in the suit for rent against the plaintiff and defendants 1 to 3. Having discharged her liability in respect of that portion of the jama which .appertained to herself it cannot be contended that at the time when the plaintiff deposited the decretal dues and costs, she was a person who, within the meaning of Section 69, Contract Act, was bound by law to pay what the plaintiff was then paying. To hold otherwise would amount to declaring, as the Courts below have pointed out, that she was liable to pay the amount of her rent twice over. That branch of the decision of the Courts below which has been most seriously challenged in this appeal is the determination of the plaintiff's claim as against defendants 2 and 3. 'Upon certain materials which were placed before the learned Munsif, he found as a fact that there had been a partition of the joint properties of the plaintiff and defendants 2 and 3 as a result of which the fractional jama of Rs. 2-10-0 fell to the share of the plaintiff and that the plaintiff was after the partition in exclusive possession thereof.
4. This finding was affirmed by the lower Appellate Court. And it is argued that it was this finding which led both the Courts below to conclude that defendants 2 and 3 were not in fact liable to pay any portion of the rent of the fractional jama, and that therefore the plaintiff could not maintain any claim for contribution as against them. It is then contended that this conclusion is erroneous. The landlords had never recognized any separate interest of the plaintiff in the entire jama, and they had never looked to him as the tenant who was solely liable for the rent of the fractional jama of Rs. 2.10.0. Therefore the legal liability of defendants 2 and 3 to pay rent actually persisted in spite of the partition. That being so, they were at the time when the deposit was made by the plaintiff, persons who were bound by law to pay money which another was paying within the meaning of Section 69, Contract Act. In Debendra Nath v. Prosonna Kumar (1926) 13 AIR Cal 951 which was a suit for contribution, it was held that it was immaterial that the defendants had not any interest in the land which was the subject of the rent suit. It was sufficient to bring them within Section 69, Contract Act, that there was a decree against them, in other words that there was a payment of money which they were bound to make under the decree, and that the plaintiff was interested in the payment of this money, because if the money were not paid his property would be sold. The principle thus broadly enunciated would, in my judgment, certainly apply to the present case if all that could be proved was that by the partition the fractional jama had fallen to the plaintiff's share and was exclusively possessed by him. But when the defendant in a suit for contribution can prove a binding agreement between himself and the plaintiff, whereby the latter alone is to satisfy all claims in respect of a legal liability which lies on them jointly, it is another matter. Now in the present case there was in addition to her evidence as to partition, further evidence that defendants 2 and 3 had by agreement with the plaintiff contracted themselves out of their liability to pay rent in respect of the fractional jama of Rs. 2.10-0. In a kobala executed by the plaintiff in favour of defendant 3, but which was not acted upon, there was an admission that the plaintiff alone was to be liable for the rent of the jama of Rupees 2.10-0. Apart from this the learned Munsif relied also on the statement of defendant 2 that it was settled that each brother would be liable for the jamas in his share and not liable for the jamas allotted to the other brothers. The finding of the learned Munsif which was obviously accepted by the lower Appellate Court leaves the question in no manner of doubt for it is thus expressed:
The circumstances and the probabilities on the' other hand all point to the conclusion that the jama was payable by the plaintiff alone.
5. This finding cannot be disturbed in second appeal. It is therefore not correct to say that the conclusion arrived at by the Courts below was based merely upon the partition and the allegation of the plaintiff's exclusive possession. Defendants 2 and 3 are shown to have contracted with the plaintiff that their statutory liability to pay rent in respect of the fractional jama was to be discharged by the plaintiff alone, and in the presence of such a contract the principle enunciated in Debendra Nath v. Prosonna Kumar (1926) 13 AIR Cal 951 needs modification. On behalf of the respondents who were defendants 2 and 3 reliance has been placed on Siva Panda v. Jujusti Panda (1902) 25 Mad 599. In that case, the plaintiff sued the defendant for contribution in respect of a payment made by the plaintiff in satisfaction of a decree for mesne profits pronounced against the plaintiff and defendant jointly. It was observed that it would have been a valid defence to the suit if the defendant had succeeded in showing that the mesne profits for the period in question were received and enjoyed by the plaintiff alone. That observation does not directly assist the respondents' contention, for the foundation of the liability to pay mesne profits is wrongful enjoyment of fruits and profits to which another is entitled, and the liability itself may be negatived by proving that there was no such enjoyment. The liability upon which the present proceedings are based is the statutory liability of joint tenants under the Bengal Tenancy Act and to a claim by the landlord for rent it is no answer to say that the tenant was not in actual enjoyment of the fruits and profits of the land. It is undoubtedly true to say that so long as the statutory liability continues to be joint, a tenant making a payment on behalf of himself and his co-sharer within the meaning of Section 69, Contract Act would have a prima facie case for contribution against them. But from this it surely cannot be argued that as between themselves the joint tenants may not agree as to the manner in which that liability is to be discharged or apportioned. If such an agreement is found, as it was found in the present case, the parties to it are bound thereby. In the result this appeal is dismissed and the judgments and decrees of the Courts below are affirmed. The contesting respondents are entitled to get their costs in this appeal.