1. This is an appeal by the defendants in a suit for contribution which was instituted on the 6th December, 1921. The parties are co-sharers in a patni taluq and the suit was in respect of a sum of Rs. 3,440 paid by the plaintiff to the landlord of the tenure on the 8th December 1918. On this date the rent of the tenure was in arrears and in the previous month the latter had been sold under the provision of Regulation VIII of 1819. The learned Subordinate Judge who tried the suit has found that this payment was not, as the plaintiff alleged, a payment of arrears of rent made on behalf of herself and the defendants but a payment made in fraud of the defendants in order to induce the landlord to resettle the tenure with herself alone. On this find-ling the plaintiff could not recover contribution, since the payment was not 'lawfully' made within the meaning of Section 70 of the Contract Act; and the learned Subordinate Judge rightly dismissed the suit. This was on the 26th August 1922.
2. An appeal was taken to the District Judge. By the time that it was heard the sale of the patni tenure had been set aside and the landlord has sued the parities for arrears of its rent. In so doing he gave credit for the Rs. 8,440 just now referred to and other sums, claiming the balance of rent due. The suit was decreed some time in the end of 1922 on an admission by the present parties. Mention has been made by the learned advocate for the respondent of a petition of compromise put in by them but it is not upon the record. This transaction changed, in the opinion of the learned District Judge, the aspect of the case altogether and on the footing that the landlord:
gave credit for the said sum of Rs. 3,440 paid by Joy Durga and with the consent of all the parties a decree for the balance was passed
he has allowed the appeal and given a decree to the plaintiff.
3. The transaction can however, have no bearing on the nature of the payment of the 8th December 1918, which was the cause of action upon which the suit was founded; and the findings of the trial Court as to that nature have not been disturbed. The learned Judge has, in effect, then, given the plaintiff a decree upon a cause of action which arose only after the suit had been determined and was totally different from that pleaded. I do not think that the circumstance justified such an unusual course; and for this reason we set aside the judgment and decree of the District Judge and restore that of the Subordinate Judge. The appellants will get their costs throughout.
4. I agree. It was mentioned in the course of the argument on behalf of the plaintiff-respondent that the money was paid in compliance with a registered notice issued by the landlord to the tenants including the respondent Joy Durga. The trial Court found, however, that no such notice had been proved. Neither the postal receipts nor the acknowledgment receipts were produced. The Subordinate Judge further found that Joy Durga paid the rents to the proprietor not because they were demanded by a notice as alleged, but because the proprietor would not otherwise grant her settlement of the patni. The payment was made in circumstances practically amounting to a fraud on the co-sharer-defendants and in order to serve the plaintiffs' own interest only. The learned Subordinate Judge found therefore that it was gratuitous and voluntary and that the plaintiffs could not invoke the aid of Sections 48, 69 and 70 of the Contract Act. These findings have not been displaced by the Court of appeal below, and upon those findings the suit must fail. The position cannot, I think, be affected by what took place long after the institution of the suit in connexion with the solenama and the decree based thereon.