1. The facts of the case, which are material for this appeal are as follows: Four annas share of Touzi No. 199 of the Murshidabad Collectorate belonged to Nawab Bahadur of Murshidabad, as mutwalli of a wakf estate. In August 1901, he as mutwalli settled the same in patni right to Daiba Kumari Debi and others, the executors to the estate of Indra Nayaran Singh at an annual rent of Rs. 2369. For brevity's sake this patni would hereafter be called the 'four anna patni.' The said executors in their turn settled the same in darpatni right to Tarini Prosad Dhur at an annual rent of Rs. 2369 on 29th April 1905. This darpatni would for brevity's sake be hereafter called the 'four anna darpatni.' There was a covenant in the darpatni kabuliat (Ex. 11) by which the darpatnidar undertook to pay by barat the patni rent to the Nawab Bahadur of Murshidabad. Tarini Prosad Dhur in his turn granted three separate sepatnis to three persons at different dates of different portions of his darpatni lands. One of such sepatnidars was Adhar Chandra Mondal. He did not, however, grant sepatnis in respect of all the lands of his darpatni-taluk but retained a portion thereof in khas management. After his death his heirs, Bishnu Das Dhur and others granted on 1st September 1923 all those lands of the darpatni, which their father had held in khas, in sepatni to Joy Chand Serogi, Keshori Mull Serogi and Chatturbhuj Serogi by taking a large amount of money as selami. Thus after this grant all the lands of the darpatni were let out in sepatni right to four sets of persons. The total rent of all the four sepatnis came up to Rs. 2256-9-0. It was thus less than the darpatni rent (rs. 2369) payable by the heirs of Tarini Prosad Dhur to the patnidar Daiba-kumari Debi and others. This loss was made up by those persons from the patni which they had in respect of the other twelve annas share of the said Touzi which was owned by the executors of Indra Narayan Singh. This patni would hereafter be called the 'twelve anna patni.' It is not necessary for this appeal to narrate the history of the said patni of the twelve annas share of the said Touzi or the darpatnis carved out of the same. On 8th Falgoon 1330 (=21st February 1924) the heirs of Tarini Prosad Dhur sold their aforesaid 'four anna darpatni and their twelve anna patni.' The name of defendant 2, Nerode Barani Dasi, who is the wife of defendant 1, Dolegobinda Dass, appeared as the purchaser in this conveyance. On 5th Kartic 1386 (=20th October 1929) Nirode Barani Dasi sold the 'twelve anna patni' to Amano Burmaniya. There thus remained with her the unprofitable 'four anna darpatni.' On 6th February 1929, the 'four anna patni' was purchased by Sardi Bai, wife of plaintiff l, Joy Chand Serogi. The finding of the learned Subordinate Judge is that Sardi Bai was the benamidar of her husband Joy Chand Serogi and that finding has not been challenged before us by any of the parties. At a partition between Joy Chand Serogi and his brother Kishorimull Serogi, the interest of Kishorimull in the sepatni which they and Chatturbhuj Serogi held under the four anna darpatni fell to the share of Joy Chand Serogi. This partition was after 15th May 1937 but before the institution of the suit in which this appeal arises. From after the date of that partition Joy Chand Serogi and Chatturbhuj Serogi became the owners of the said sepatni. They are plaintiffs 1 and 2 in the suit and Kishorimull Serogi is pro forma defendant 3.
2. The owners of the 'four anna patni,' Daibakumari and others, had given on the 'four anna darpatnidar' the barat to pay the patni rent due for the same to the Nawab Bahadur of Murshidabad. The darpatnidar of the four anna darpatni, who was ostensibly Nirode Barani Dasi, did not however pay the patni rent on several occasions. The sepatnidar Adhar Chandra Mondal deposited the same on two occasions to save the four anna patni from the summary sale under Regn. 8 of 1819-once in November 1928 and the second time in November 1929. His interest prompted him to do so, for, if the said patni had been sold at those summary sales, the purchaser would have had the right to annul his sepatni. He brought two suits against Nirode Barani and her husband Dolegobinda Daas for recovering the amounts deposited by him. In those two suits he made the patnidar of the 'four anna patni' as also the other sepatnidars, Joy Chand Serogi and others, holding under the 'four anna darpatni' parties defendants. His suits were ultimately dismissed against Nirode Barani and DolegobindaThe judgment of this Court is reported in Adhar Chandra Mondal v. Dog Gobinda Das ('36) 23 A.I.R. 1936 Cal. There was again default in the payment of rent due for the 'four anna patni.' This time a sale was held under Regn. 8 of 1819 at which Joy Chand Serogi purchased the said patni, but this sale was set aside at the suit of Adhar Chandra Mondal. If the sale had not been set aside Joy Chand would have been in a position to annul the three sepatnis, which were all profitable ones and would have certainly annulled those three sepatnis. As a sale of the 'four anna patni' either in execution of a rent decree or under Regn. 8 of 1819 would have imperilled the sepatnis including the sepatni of Joy Chand and his cosharers Joy Chand purchased by private treaty the patni which was not profitable (for the darpatni rent was equal to the patni rent) in the name of his wife Sardi Bai, by paying Rs. 100 as its price. He thus acquired control of the field to a certain extent.
3. After Sardi Bai had become the ostensible owner of the 'four anna patni,' the patni rent due in respect thereof for the last six months-Augryan to Chaitra -of 1340 B.S. =(October 1933 to April 1934) was not paid to the Nawab Bahadur of Murshidabad with the result that the latter applied for sale of the said patni under Regn. 8 of 1819. That sale was avoided by Kishorimull Serogi and Chatturbhuj Serogi depositing with the Col-lector the arrears due to the Nawab Bahadur in their character as some of the sepatnidars under that patni. They again saved the said patni from a summary sale under that regulation for the arrears of rent for the first six months-Bysac to kartic of the year 1341 B.S. (April 1931 to October 1934). For recovering the amounts so deposited they instituted two suits, Nos. 581 of 1934 and 957 of 1935, in the first Court of the Munsif at Berhampore, against Nirode Barani and Dolegobinda Dass. In those suits they alleged that Dolegobinda Dass was the beneficial owner of the 'four anna darpatni,' Nirode Barani being his benamidar. They contended that as the darpatnidar had covenanted with the patnidar to pay the patni rent due to the zamindar, the darpatnidar who according to them was Dolegobinda, was liable to pay them what they had deposited in payment of the patni rent. The learned Munsif found that Dolegobinda was the beneficial owner of the darpatni. He granted decrees against Dolegobinda only. His decrees were affirmed on appeal by the learned Subordinate Judge on 8th June 1936. On second appeals to this Court the suits were dismissed against Dolegobinda but decreed against Nerode Barani. The judgment of this Court was delivered on 7th March 1939. It is Ex. D (4).
4. In 1933 Sardi Bai as patnidar of the 'four anna patni' had instituted a rent suit (Rent Suit No. 8 of 1933) in the Court of the Subordinate Judge at Berhampore (subsequently numbered 1 of 1934 on transfer to the additional Court of the Subordinate Judge of the same place) for the rent due for the year 1337 B.S., on account of the four anna darpatni. This suit was brought against both Nirode Barani and Dolegobinda. In that suit she prayed for a decree against Dolegobinda on the allegation that he was the beneficial owner of the darpatni, Nirode Barani being his benamidar. On 24th April 1934 the Subordinate Judge granted a decree against both on the finding that Dolegobinda was the beneficial owner of the darpatni and Nirode Barani was his benamidar (ex. 6). The appeal filed by Dolegobinda was allowed by the learned District Judge on 8th May 1935 (Ex. D (1)), he holding that Nirode Barani was the beneficial owner and not the benamidar for her husband. The judgment of the learned District Judge was upheld in second appeal by this Court which delivered its judgment on 16th July 1937 (ex. D (2)). The finding of the Subordinate Judge that Dolegobinda had no interest in that darpatni thus remained. It is after this judgment that the second appeals preferred against the decrees passed in the other two suits instituted by Kishorimull and Chatturbhuj Serogi for reimbursement of the moneys they had deposited to prevent the sale of the 'four anna patni' (Suits Nos. 581 of 1934 and 957 of 1935) were disposed of by this Court.
5. In 1935 Sardi Bai filed another suit (Rent Suit no. 3 of 1935) in the Court of the Subordinate Judge, Berhampore against Dolegobinda and Nirode Barani for arrears of rent due for the years 1338 to 1341 B.S. In respect of the 'four anna darpatni' on the same allegations as in Rent Suit No. 8/1 of 1933/1934. That suit was decreed against Nirode alone, Dolegobinda being absolved on the finding that Nirode Barani was not his benamidar. Sardi Bai, the decree-holder in those two suits, put her decrees into exeqution against Nirode Barani. She applied for sale of the defaulting tenure-'the four anna darpatni'-under the procedure laid down in chap, XIV, Ben. Ten. Act. The defaulting tenure was attached and advertised for sale. Chatturbhuj Serogi (plaintiff 2) and Kishorimull Serogi (pro forma defendant 3) deposited the amounts for which the executions had been taken out and so averted the sale of the tenure, Rs. 4858 odd was deposited by them on 18th February 1937, which satisfied the dues of the decree-holder under the decree passed in Rent Suit No. 8 of 1983/1 of 1934 and Rs. 10,883 odd was deposited by them on 15th May 1937, which satisfied the dues of the decree-holder under the decree passed in Rent Suit No. 3 of 1935. The rights of pro forma defendants, Kishorimull Serogi, have passed to plaintiff 1, Joy Chand Serogi, by the terms of the partition deed executed by him and his brother Kishorimull. The suit in which this appeal arises is for the recovery of the said moneys from Dolegobinda and Nirode Barani. As sepatni rent was due by the plaintiffs, they have deducted the same from the amount deposited by them and have prayed for a decree for the balance. The learned Subordinate Judge has found that Dolegobinda has acquired 'the four anna darpatni' in the benami of his wife, Nirode Barani. He has, however, dismissed the suit against both Dolegobinda and Nirode Barani. Even if his conclusions on the points of law be correct, it is difficult to realise why the suit has been dismissed against Nirode Barani. Important questions of law have been raised and discussed before us in an elaborate way by both the learned advocates. They would arise, if it be held that Nirode Barani was the benamidar for her husband, Dolegobinda, in respect of the 'four anna darpatni.' We will therefore consider that question first.
6. As the conveyance stands in the name of Nirode Barani the apparent state of things must be presumed to be the real, and he who alleges benami must in the first instance adduce such evidence as would rebut that presumption. Having regard to the fact of relationship between the parties, the fact of possession of the property and of the title deeds would afford no certain criterion on the question of benami. The fact that rent receipts were issued in the name of Nirode Barani or that she figured as plaintiff in rent suits against the sepatnidars or that the record of rights showed her name as the owner would not also be of much importance, for those circumstances would be in accordance with benami usage. The apparent state of things would ordinarily be kept up. The material points for consideration would be as to who paid the price, and the conduct of the parties. The fact that it is a common practice in Bengal for husbands to acquire properties in the benami of their wives and that Dolegobinda had in the past employed his, wife as benamidar (see some of the items of property mentioned in the partition deed Ex. J) would be matters for consideration, but by themselves they would not establish that the 'four anna darpatni' had been acquired by Dolegobinda in the benami of his wife. (After considering fee evidence their Lordships proceeded.) On the evidence as it stands we hold that Nirode Barani was the benamidar of Dolegobinda in respect of the four anna darpatni. In arriving at this conclusion, we have not taken into consideration Nirode Barani's evidence. The plaintiffs adopted a procedure which must be condemned. The learned Subordinate Judge also acted illegally in giving in advance to the commissioner the power to allow the plaintiffs to declare her hostile and to cross-examine her. Moreover her deposition is incomplete and for that reason alone her evidence has to be expunged from the record.
7. The findings in the judgment delivered in Rent Suits nos. 1 of 1934 and 3 of 1935 on the question of benami are not res judicata as plaintiff 2 and pro forma defendant 3 of the suit before us through whom plaintiff 1 claims were not parties to those rent suits. No doubt Joy Chand Serogi brought those rent suits in the name of his benamidar Sardi Bai, but he had brought those suits under a different title, namely, as the patnidar. On the finding that Nirode Barani is the benamidar of her husband Dolegobinda the following points of law arise in this appeal: (1) Whether the plaintiffs can obtain from Dolegobinda reimbursements of the amounts deposited by which the decrees passed in Rent Suit No. 8 of 1933/1 of 1934 and no. 3 of 1935 were satisfied, seeing that these rent suits were dismissed against Dolegobinda after contest ?
8. If the aforesaid question is answered against the plaintiffs no further question would arise. If however the said question is answered in their favour three further questions would arise for consideration. They are: (2) Whether plaintiff 2 and pro forma defendant 8 acted bona fide in satisfying the two rent decrees? (3) Can the plaintiffs recover the amounts seeing that at the time of those deposits they had not paid the sepatni rent due from them? and (4) Is the plaintiffs' claim barred by res judicata
9. The first question has to be considered from two aspects: (a) Whether the fact that those rent suits were dismissed against Dolegobinda would by itself defeat the plaintiffs' claim and (b) whether the fact that Dolegobinda was not under a personal obligation to satisfy those decrees, as these decrees did not make him liable, would defeat the plaintiffs' claim. We propose to consider the aforesaid questions in the Order stated above.
I (a). In cases of contribution between co-debtors the position is settled. The release of one of the debtors by the creditor does not prevent the other debtor who has satisfied the debt from claiming contribution from the released debtor. Perumall Pillai v. Raman Chettiar (18) 5 A.I.R. 1918 Mad. 1030 at p. 975, I.L.R. (1942) ALL. 608 at p. 620,Shah Ram Chand v. Parbhu Dayal ('42) 29 A.I.R. 1942 P.C. 50 at p. 7. It is also the law that the dismissal of the creditor's suit against one of the two co-debtors would not bar the debtor against whom the decree was passed from claiming contribution from his co-debtor against whom the suit had been dismissed if he either satisfied the decree or the decree was satisfied by execution levied against his property. The right to contribute depends upon the fact that at the time the obligation was incurred it was a common liability of the two and on the further fact that it had been discharged either wholly by one of them or partly by him but in excess of his share. The common liability creates a collateral liability amongst the co-debtors depending upon the community of the burden and the benefit from the payment by one of them either wholly or in excess of his share, Abraham Servai v. Raphial Muthirian ('15) 2 A.I.R. 1915 Mad. 675 and Behary Lai Sen v. Indra Narayan ('27) 14 A.I.R. 1927 Cal. 66.If, therefore, Nirode Barani was the beneficial owner of a share only of the four anna darpatni and benamidar for Dolegobinda for the remaining share, the dismissal of the rent suit No. 8 of 1933/1 of 1934 and no. 3 of 1935 against Dolegobinda would not have prevented her from claiming contribution from Dolegobinda, after establishing that Dolegobinda had a share in the said darpatni, if the decretal amounts had been realised from her property or if she had satisfied the decrees. She would only be debarred if in the suit for contribution she would be barred from proving that Dolegobinda was the beneficial owner of a share by reason of the finding that she was the sole beneficial owner and not benamidar of Dolegobinda made in those rent suits operating as res judicata. These findings could not have been res judicata, for she and Dolegobinda were co-defendants in those rent suits and no cross issue on the point of benami was raised by them in these suits. The requirements for res judicata as between co-defendants as laid down in Munni Bibi v. Trilokinath are not satisfied. The question then is whether the aforesaid principles are rendered inapplicable to a suit for reimbursement. We do not think that they are inapplicable. The only difference between contribution and reimbursement is that in the former case one discharges his as well as another's liability and in the latter case he discharges the liability which is wholly the other's not voluntarily but under conditions which give him a legal right to recoup himself. As the dismissal of the rent suits against Dolegobinda would not have prevented Nirode Barani from getting reimbursement from Dolegobinda after satisfying those decrees, that fact cannot disentitle the plaintiffs from recovering the same from Dolegobinda, if they are otherwise entitled to recover the same.
I (b). The advocate for the plaintiffs has relied upon Section 69, Contract Act, for supporting his clients' claim against Dolegobinda. Plaintiff 2 and pro forma defendant 3 who deposited the two sums of money which satisfied the two rent decrees were persons who were undoubtedly interested in the payment of the decretal amounts, for if the decrees had not been satisfied, the purchaser at the sale in execution of those decrees would have been in a position to annul their sepatni. The whole question therefore is whether Dolegobinda is a person 'bound by law to pay' the amounts covered by those decrees. He was under no personal liability to pay the sums decreed as both the rent suits had been dismissed against him. But in execution of those decrees 'the four anna darpatni' of which he is the beneficial owner could have been sold. The phrase 'bound by law to pay' was first construed in Mothooranath Chattopadhya v. Kristo Kumar Ghose ('79) 4 Cal. 369. In that caseMarkby J., held that that phrase did not contemplate personal liability only but all liabilities to payment for which owners are indirectly liable, that is, liabilities imposed upon the land itself of which they are the owners. This view has been followed in a series of decisions of this Court as well as of other High Courts, Chandradaya Sen v. Bhagaban Chandra Sen ('16) 3 A.I.R. 1916 Cal. 954;Registered Jessore Loan Co. Ltd. v. Gopal Hari Ghose ('26) 13 A.I.R. 1926 Cal. 657; Sarajubala Roy v. Kamini Kumar ('26) 13 A.I.R. 1926 Cal. 765 and Nandan Sahu v. Fateh Bahadur Singh : AIR1940All104 . On the view taken in those cases, Dolegobinda would be a person 'bound by law to pay' the decretal amounts, for though he was not under a personal liability to pay the same, the liability was on the property, namely, 'the four anna darpatni,' of which he is the owner.
10. Mr. Mookerjee, who appears for Dolegobinda, contends, firstly that the above-mentioned decisions have wrongly interpreted the phrase 'bound by law to pay' occurring in Section 69, Contract Act, and secondly, that the view, taken in these decisions is in conflict with other decisions of Division Benches of this Court. The cases on which he has placed reliance are Boja Sellappa Rddy v. Vidhachala Reddy ('07) 30 Mad. 35, Subramanya Chetti v. Mahalingaswami Sivan ('10) 33 Mad. 41,Puthenpurayial Ammal v. Pakram Haji ('13) 36 Mad. 493,Gangadas Bhattar v. Jogendra Nath Mitter ('07) 11 C. W. N. 403 and the judgment of S.K. Ghosh and Mukherjea JJ. in Dolegobinda Dass v. Chatturbhuj Serogi (Exhibit D-4). In Boja Sellappa Beddy v. Vidhachala Reddy ('07) 30 Mad. 35, it was held that an unregistered proprietor of a revenue paying estate is a person whose interest is to pay the land revenue to save his property from revenue sale but he is not a person 'bound by law to pay' the revenue, though revenue is a charge on the property; and so the registered proprietor, who had paid revenue at a time when a litigation about title was pending between him and the unregistered proprietor cannot recover the money paid by him from the latter under Section 69, Contract Act, and Subramanya Chetti v. Mahalingaswami Sivan ('10) 33 Mad. 41 followed the interpretation given in Boja Sellappa Reddy v. Vidhachala Reddy ('07) 30 Mad. 35 to the phrase bound by law to pay.' The decisions in those two cases are in conflict with the decision in Mothooranath Chattopadhya v. Kristo Kumar Ghose ('79) 4 Cal. 369, Chandradaya Sen v. Bhagaban Chandra Sen ('16) 3 A.I.R. 1916 Cal. 954 and Registered Jessore Loan Co. Ltd. v. Gopal Hari Ghose ('26) 13 A.I.R. 1926 Cal. 657. Those Madras cases were cited in Sarajubala Roy v. Kamini Kumar ('26) 13 A.I.R. 1926 Cal. 765 but were not approved by a Division Bench of this Court. We cannot agree with those two decisions of the Madras High Court nor with the decisions of the same Court in Puthenpurayial Ammal v. Pakram Haji ('13) 36 Mad. 493. If the plaintiff in the last mentioned case could not have recovered the revenue paid by him from the defendant on the view that Section 69, Contract Act, did not help him we fail to see how he could have a charge for his claim on the defendant's share in the property in respect of which the revenue was paid by him.
11. The two cases decided by Division Benches of this Court to which our attention has been drawn by Mr. Mukherjee will have to be examined carefully, for if they are in conflict with the other decisions of this Court, which we have noticed above the point of law will have to be referred to the Full Bench. In Gangadas Bhattar v. Jogendra Nath Mitter ('07) 11 C. W. N. 403. the first mortgagee had recovered a decree on his mortgage and in execution thereof had purchased the mortgage properties. In his suit he did not, however, implead the second mortgagee and some persons who had acquired a share in the equity of redemption. The second mortgagee had sued on his mortgage without impleading the first mortgagee, obtained a decree and in execution thereof had purchased what had been mortgaged to him. His security included some of the properties included in the first mortgage. His purchase at the court sale was prior to the purchase of the first mortgagee. The first mortgagee after his purchase brought a suit for possession impleading the second mortgagee and two other persons who before his mortgage suit had acquired interest in the equity of redemption but had not been impleaded as defendants in the mortgage suit. It was held that the suit for possession by the first mortgagee was maintainable but the puisne mortgagees and those other persons who had acquired interest in the equity of redemption at the time when the first mortgagee instituted his suit to enforce his mortgage and who had been left out in that suit could exercise their right of redemption in that suit for possession. It is not necessary to express any view whether the view that that suit for possession was maintainable was correct in view of the decision of the Judicial Committee in Bijay Saran v. Bageswari Prasad ('29) 16 A.I.R. 1929 P.C. 288. We may only state that it has not been approved in subsequent decisions of this Court Jagat Chandra De v. Abdul Rashid : AIR1935Cal139 , and Sailendra Nath v. Amarendra Nath : AIR1941Cal484 . Then the question arose as to the terms of redemption. It was held that from the date of the mortgage decree obtained by the first mortgagee interest was not to be calculated at the bond rate but at the rate mentioned in that decree. This part of the judgment also has not been approved in a later decision of this Court: Jnanendra Nath Singh v. Shorashi Charan ('22) 9 A.I.R. 1922 cal. 23.
12. It was further held that in fixing the price for redemption the puisne mortgagee could not claim credit in the accounts for the sum of money, which he had deposited under Section 171, Ben. Ten. Act, to satisfy a rent decree in respect of the mortgage property, Although no reference was made to Section 69, Contract Act, the language used in the judgment makes it quite clear that the learned Judges had in mind that Section. They held that the plaintiff, who at the time of that deposit by the puisne mortgagee was only a mortgagee, was not a person bound in law to pay the rent decree. We cannot brush aside this part of the judgment simply because other parts of the judgment dealing with other points of law have not been approved in later decisions of this Court. One fact, however, is significant, namely, that Mothooranath Chattopadhya v. Kristo Kumar Ghose ('79) 4 Cal. 369 was not noticed in the judgment which was delivered by one of the most erudite Judges of this Court. That omission, in our opinion, furnishes a clue to the interpretation of this part of the judgment on which Mr. Mookerjee has relied. If a person is personally liable he is 'bound by law to pay.' The first mortgagee, the plaintiff in that case, did not come within that category, for under the Indian law there is no privity between the mortgagee of a leasehold property and the landlord. In Mothooranath Chattopadhya v. Kristo Kumar Ghose ('79) 4 Cal. 369 it was laid down that the owner of a property was also 'bound by law to pay' if that particular property of his for which another has paid, was liable to pay that sum, even if the owner was under no personal liability to pay it. The first mortgagee (plaintiff) did not also fall within that class, as he was not at the time of the deposit by the puisne mortgagee the owner of the property. That in our judgment is the meaning and effect of that decision. It did not therefore lay down a proposition of law which was in direct conflict with the decision in Mothooranath Chattopadhya v. Kristo Kumar Ghose ('79) 4 Cal. 369.
13. The next decision to which our attention has been drawn by Mr. Mookerjee was in the case in Dolegobinda Dass v. Chaturbhuj Serogi and others (Ex. D-4). In that case Chatturbhuj Serogi and Kishorimull Serogi, two of the sepatnidars of the same sepatni which we have in this case, deposited the patni rent due from Sardi Bai to the Nawab Bahadur of Murshidabad to save the four anna patni from a summary sale under Reg. 8 of 1819. They sued Nirode Barani and Dolegobinda for the amount they had deposited. As in the present ease they alleged that Dolegobinda was the beneficial owner of the 'four anna darpatni' and Nirode Barani was his benamidar. They obtained decrees against both in the lower Courts on the finding that Nirode Barani was Dolegobinda's benamidar. Dolegobinda preferred a second appeal to this Court. Before the second appeal was heard, the patnidar (Sardi Bai) had sued Dolegobinda and Nirode Barani for darpatni rent. In that rent suit (no. l of 1934) it was held that Dolegobinda had no interest in the darpatni and on that finding the rent suit was dismissed against him. In the second appeal it was contended by Dolegobinda's advocate that the decision in the rent suit on the question of benami was res judicata. That contention was overruled. Then the learned Judges made the following observations on which Mr. Mookherjee places reliance:
Though it (the decision in the rent suit) is not binding on the plaintiffs (Chatturbhuj and Kishorimull Serogi) it was binding on the parties to that suit and was between the patnidar on the one hand and Dolegobinda on the other; it must be taken that Dolegobinda was not the darpatnidar and was not liable for the patni rent. That being so, the plaintiffs in our opinion cannot succeed in this suit for reimbursement which is instituted under Section 69, Contract Act, unless he succeeds in showing that Dolegobinda was bound to pay the patni rent.
14. In our judgment this passage cannot be construed as going against the view expressed in Mothooranath Chattopadhya v. Kristo Kumar Ghose ('79) 4 Cal. 369 unless something is imported into it which the learned Judges had not themselves said. In our judgment, in construing the aforesaid passage, the fact that the darpatnidar had a barat from the patnidar to pay the zamindar the patni rent must be kept in view. It is for that fact the learned Judges observed in the first sentence that Dolegobinda was not liable to pay the patni rent (not darpatni rent) for the reason that the patnidar could not enforce against him the barat arrangement, it being found in a suit between the patnidar and Dolegobinda that the latter was not the darpatnidar. The personal liabi-lity of Dolegobinda vis a vis the patnidar to pay the patni rent was thus excluded. In that view the learned Judges held that no other consideration arose on the claim of the plaintiffs which was based on Section 69, Contract Act. In so holding the learned Judges were right, for, there was no question of Dolegobinda's property the darpatni-being liable for the patni rent. The question that was considered by Markby J. in Mothooranath Chattopadhya v. Kristo Kumar Ghose ('79) 4 Cal. 369 did not thus arise. There is therefore no conflict between the decision in Mothooranath Chattopadhya v. Kristo Kumar Ghose ('79) 4 Cal. 369 and the cases of this Court which have followed it and the decision either in Gangadas Bhattar v. Jogendra Nath Mitter ('07) 11 C. W. N. 403 or the decision as embodied in Ex. D (4). The question of referring the point to a Full Bench does not accordingly arise. Seeing that since 1878 up to the last case which was decided in the Court in 1926 the words 'bound by law to pay' have been construed not only to include personal liability of the 'other' but also liability on his property, even when he was under no personal liability to pay, we are not inclined to differ from that view. We accordingly hold that the claim laid by the plaintiffs in the case before us comes within Section 69, Contract Act, and unless otherwise barred they are entitled to recover the amount sued for from Dolegobinda also.
15. II. It has been held in a series of cases that a person seeking to recover on the basis of Section 70, Contract Act, must have acted bona fide. If he had made a payment of money which had benefited another, he cannot recover it from the latter, if he had made the payment mala fide-say with the object of creating evidence of title. Those decisions are expressly based upon the construction of the word 'lawfully' used in that Section. That word however does not occur in Section 69. Some of the decisions of the Madras High Court which are reviewed in Nanduri Saradamba v. Parakala Pattabhiramayya ('31) 18 A.I.R. 1931 Mad. 207 have held that mala fides on the part of the plaintiff would disentitle him to relief even when his claim is based on section 69, Contract Act. Some of those decisions of the Madras High Court may be explained, having regard to the facts of those cases, on the ground that the plaintiff was not interested in the payment of money as his title deed which gave the appearance of interestedness was fictitious. Be that as it may, even if it be assumed that want of bona fides on the part of a plaintiff, who claims under Section 69 and whose case fulfils all the requirements of that Section, would defeat his claim we do not find any materials on the records of this case which would sustain a finding that in satisfying the two rent decrees plaintiff 2 and pro forma defendant 3 had acted mala fide. They had a vital interest, for their sepatni had been endangered by reason of those rent decrees. There is a presumption against misconduct and the principal defendants have not led any evidence which would rebut that presumption. We accordingly overrule this ground urged by the respondent's advocate.
16. III. This ground has been urged by the respondent's advocate from two aspects. He says in the first instance that Joy Chand was the patnidar as Sardi Bai has been found to be his benamidar. He further says that the rent decrees which Sardi Bai had obtained against Nirode Barani, the ostensible darpatnidar, were satisfied really by Joy Chand, he having used the names of pro forma defendant 3 and of plaintiff 2 in the applications for deposit of the decretal amounts. On these two facts he urges that there was no payment because Joy Chand, as sepatnidar purported to pay to himself as patnidar. The money did not thus change hands and so there was no payment. This argument proceeds upon the bare assumption, of which there is no evidence, that plaintiff 2 and pro forma defendant 3 did not themselves deposit their own money but Joy Chand used them as pawns.
17. His second line of argument is that the sepatnidars, namely plaintiff 2 and pro forma defendant 3 being themselves in default in the payment of sepatni rent at the time of the deposits by them which satisfied the two rent decrees cannot in law recover the amounts deposited from the darpatnidar under Section 69, Contract Act. The amount of the arrears of rent for their sepatni have been shown in the plaint itself. It was Rs. 3035-14-0 which falls far short of the amount decreed in Rent suit No.(8 of 1933/1 of 1934)and 3 of 1935 and for whichexecution had been levied. For supporting his contention he has relied upon the observations in Adhar Chandra Mondal v. Do1 Gobinda Das ('36) 23 A.I.R. 1936 Cal at p. 1050. Those observations seems to us to be obiter dicta, as Dolegobinda was absolved from liability to pay to Adhar Chandra Mondal on the principle laid down in Twaddle v. Atkinson (1861) 1 B. and Section 393. We are further of opinion that statutory provisions cannot be controlled by or whittled down by the general principles of equity, justice and good conscience. Those principles can have application in India on the field outside statutory provisions. If there is a statutory provision on the subject the plaintiff would succeed or fail according as his case satisfies or fails to satisfy the statutory requirements. If his case comes within Section 69 he is entitled to succeed and he cannot be denied relief by taking the aid of general maxims of equity. There is the further fact why we do not consider ourselves bound by any precedent on the point because it does not appear whether the arrears of sepatni rent due from Adhar Chandra Mondal to the darpatnidar were less than what he had paid on account of the patni rent in arrears which saved the patni. It may well be that his arrears had exceeded that amount. We have looked into the paper book of that case but from it we could not ascertain what his arrears were at the time when he deposited the patni rent. We accordingly decide this point also against the respondent.
18. IV. The point of res judicata urged by the respondent has been based on two decisions of this Court. The first is the decision in the suits which Adhar Chandra Mondal brought to recover from Dolegobinda and Nirode Barani the patni rent that he had paid to save the 'four anna patni.' That decision is reported in Adhar Chandra Mondal v. Dolgobinda as ('36) 23 A.I.R. 1936 Cal. The second decision is the decision of this Court as embodied in Ex. D (4). That was in the two suits which Chatturbhuj Serogi and Kishorimull Serogi had brought against Dolegobinda and Nirode Barani to recover the patni rent which they had paid to save the 'four anna patni' from sale. In both the suits the subject-matter was the money paid towards patni rent. The suit before us concerns money paid to satisfy decrees for arrears of darpatni rent. All those suits were dismissed against Dolegobinda. We do not consider that the decisions in those suits bar the plaintiffs from recovering a decree against Dolegobinda on the ground of res judicata.
19. The learned advocate for the respondents urges that even if those decisions are erroneous in point of law they operate as res judicata. In support of this contention he relies upon the Full Bench. decision in Tarini Charan v. Kedar Nath : AIR1928Cal777 . In that case, however, Rankin C. J. made the position quite clear. He pointed out that a pure question of law, a point of law in an academic form, can never be in issue between litigants. The point in issue must necessarily relate to the rights of the parties to the suit, and the determination of those rights may depend upon the determination of facts aswell as on points of law. What the Rule of res judicata bars in the re-agitation between the self-same parties or their privies of the self-same issue, which was directly and substantially in issue between them in the previous suit. The right asserted against Dolegobinda in the earlier suits was the right to recover the patni rent deposited by the plaintiffs which saved the patni from sale. That is altogether a different right from the right asserted by the plaintiffs in the present suit, which is a right to recover the darpatni rent deposited by them which saved the darpatni from a rent sale.
20. In addition to the aforesaid reason, we do not consider these decisions to be res judicata in favour of Dolegobinda. In the suits instituted by Adhar Chandra Mondal, Dolegobinda and the plaintiffs in the suit before us- the Serogis-were defendants. The Serogis were pro forma defendants. No question of res judicata can, therefore, arise so far as they are concerned: Brojo Behari v. Kedar Nath ('86) 12 Cal. 580 (F.B.). Besides, Dolegobinda and the Serogis were co-defendants and there was no cross-issue between them. The suits by Chatturbhuj and Kishorimull Serogi (Nos. 581 of 1934 and 957 of 1935) against Dolegobinda were instituted in the Court of the Munsif. As the Munsif would have had no jurisdiction to try the suit we have before us on account of his limited pecuniary jurisdiction, the final decision in those suits cannot operate as res judicata.
21. At the end of the argument, a point was raised that in any event as Joy Chand is the owner of the patni, the suit cannot be decreed in full, but the claim in the suit can succeed only to the extent of one-third of the amount claimed inasmuch as Joy Chand who is also the patnidar claims to have two-thirds share in the money in his right as the sepatnidar. We do not consider this point of any substance.
22. We accordingly overrule all the above points urged by the respondent. We modify the decree passed by the learned Subordinate Judge. The plaintiffs will have a decree against both Dolegobinda and Nirode Barani for the amount deposited by them in the aforesaid two rent suits less the amount due by them on account of sepatni rent. This amount would carry interest at the rate of four per cent, per annum (simple) from the date of deposits till recovery. The claim as made by the plaintiffs in their plaint is accordingly allowed in part. We allow proportionate costs of both Courts which would bear interest at four per cent, per annum (simple) from thisdate till recovery. No Order is necessary on the cross objection as the subject-matters of the cross-objection have been dealt with in the earlier part of our judgment. We make no Order as to costs in the cross-objection.