Banerjee and Wilkins, JJ.
1. This appeal arises out of a suit for contribution brought by the plaintiffs respondents, against certain persons described as principal defendants and certain other persons described as pro forma defendants, on the allegation that a four-annas share of a certain mehal bearing No.76 on the Collector's rent roll belonged to one Shayamamoyi Debia, the plaintiffs, and the pro forma defendants being co-sharers in that mehal; that defendants Nos. 1 to 8 were the heirs of Shayamamoyi; that the amount of Government revenue payable in respect of Shayamamoyi's share was Rs. 650 on account of the September instalment of 1891; that out of this the amount of Rs. 325 having remained unpaid, the said amount was paid by the plaintiffs to save the estate from sale; and that the plaintiffs are entitled to recover the said amount from the principal defendants. It was further stated in the plaint that the share of Shayamamoyi had been let out in ijara to Annada Prosad Mukerjee, the predecessor in title to defendants Nos. 1 to 5 and to Saroda Prosad Mukerjee, predecessor in title to defendants Nos. 10 to 12 in equal shares and that the share leased out in the name of Saroda Prosad which was held by him and his (Saroda's) brother Nilratan, defendant No. 6, was sold in execution, and the ijara interest in respect of this two-annas share was purchased by the husband of defendant No. 9. It is not clearly stated in the plaint on what ground the plaintiffs seek to make all the principal defendants liable, but it would appear from the tenor of the plaint that they sought to make the defendants liable, not merely as representatives of Shayamamoyi, in respect of whose share they had paid the Government revenue, but also as her ijardars, it being stated in the plaint that one of the terms of the ijara lease was that the ijardars were to pay the Government revenue payable by Shayamamoyi.
2. The suit was originally contested only by defendants Nos. 1 to 5. They were exonerated from liability and an ex parte decree was passed against defendant No. 9. Subsequently the ex parte decree was set aside and the suit was reheard.
3. The defence of defendants Nos. 1 to 5 was that they had paid their share of the revenue due, and that the only share that was in default was that held in ijara by defendant No. 9.
4. The defence of defendant No. 9 was that neither she nor her predecessor in interest was a co-sharer of the plaintiffs; that no suit for contribution was, therefore, maintainable against her; that she had no possession of the property at the time when the default in payment of the revenue was committed; and that money was due to her from the plaintiff's who were darijardars under the ijara and so she was not liable for the plaintiff's claim.
5. The first Court held that defendant No. 9 was the only person liable, and it accordingly upon the rehearing of the case made the same decree that had been originally made ex parte.
6. On appeal by defendant No. 9, the Lower Appellate Court ordered the remaining defendants who apparently had not been made parties to the appeal, viz., defendants Nos. 1 to 8, to be brought before the Court under Section 559 of the Code of Civil Procedure, and it has set aside the decree against defendant No. 9 and given the plaintiffs a decree against defendants Nos. 1 to 8 as representatives of Shayamamoyi, and has ordered that the plaintiffs shall recover the amount decreed from the estate of the husband of Shayamamoyi.
7. In second appeal it is contended on behalf of defendants Nos. 1 to 5 that the decree of the Lower Appellate Court is wrong, first, because no decree could be passed against defendants Nos. 1 to 5, the suit having been dismissed against them by the first Court and the plaintiff's having preferred no appeal against that part of the decree; secondly, because the suit having been based by the plaintiffs mainly, if not solely, upon the terms of the ijara lease, and the defendants Nos. 1 to 5 having paid the share of the Government revenue that was due on account of the two-annas share held by them under the ijara, they were not liable for any part of the plaintiff's claim; and, thirdly because the liability to contribution was a personal liability of Shayamamoyi, and defendants Nos. 1 to 5 were no heirs to her stridhan, but were the reversionary heirs to the estate of her husband, and, as such, were not liable for the plaintiff's claim.
8. Upon the first point, the case of Atma Ram v. Balkishen (1883) I.L.R. 5 All. 266 is no doubt in favour of the appellant's contention ; but having regard to the language of Section 559, we think it authorizes the course that the Lower Appellate Court has taken in this case. The plaintiffs in their plaint stated all the necessary facts, and they asked for a decree against the defendants. The first Court upon the view that it took of the liabilities of the parties as a matter of law, exonerated defendants Nos. 1 to 8 from liability and passed a decree against defendant No. 9 alone. The plaintiffs were content with that decree, because it did not matter to them whether the decree went against defendants Nos. 1 to 8, or against defendant No. 9, the parties being all equally solvent. The defendant No. 9 being dissatisfied with the decree passed against her, preferred an appeal; and the Lower Appellate Court having, at the hearing of the appeal, found that the defendants Nos. 1 to 8 who were parties to the suit in the first Court, but who had not been made parties to the decree and were interested in the result of the appeal (in this sense that, whereas they sought to fasten the liability for contribution on defendant No.9, the appeal was intended to exonerate defendant No. 9 altogether) ought to be made parties, directed that they should be made parties ; and they entered appearance in accordance with the order made. The plaintiffs, having obtained a decree against defendant No.9, and being satisfied with that decree, were not under any necessity for preferring any appeal to make the other defendants liable. But if at the hearing of the appeal, the Court found that the defendant No. 9 was not liable, but the other defendants were liable, we do not think that there was anything wrong in the Lower Appellate Court's making them respondents and passing a decree against them. We may observe that the exercise of the power is not limited by the provisions of the Limitation Act, see Manickya Moyee v. Boroda Prosad (1882) I.L.R. 9 Cal. 355.
9. The view we take is, to some extent, supported by the decision of the Bombay High Court in the case of Soiru Padmanabh Rangappa v. Narayanrao bin Vithatrao (1893) I. L. R. 18 Bom. 520. The first contention of the appellants must, therefore, fail.
10. Upon the second point, we are of opinion that, although the plaintiffs in their plaint referred to the ijara lease and based their claim in part upon the terms of that lease, still that circumstance cannot go to exonerate the defendants Nos. 1 to 8 altogether from liability, if they are otherwise liable under the law. They were made parties as the heirs of Shayamamoyi, and a decree was asked for against all the defendants. It cannot, therefore, be said that, upon the case as made, the defendants Nos. 1 to 8 ought to be exonerated from liability altogether. The liability for contribution attaches to the co-sharer by whom the revenue was payable and for whom it was paid, that is, Shayamamoyi, and after her death to her legal representatives; and the defendants Nos. 1 to 8 are alleged to fill that character.
11. Upon the third point, we find that although, in the plaint, the defendants Nos. 1 to 8 are represented as the heirs of Shayamamoyi, the defendants Nos. 1 to 5 in their written statement denied that they were her heirs, and alleged that they were the heirs of Chandra Bhusan Mukerjee, Shayamamoyi's husband; and there has been no adjudication in either of the Courts below as to whether defendants Nos. 1 to 5 are the heirs to Shayamamoyi's stridhan. The question then arises whether, if the defendants Nos. 1 to 5 are not heirs to Shayamamoyi's stridhan, they can still be made liable for the plaintiff's claim. The claim is for contribution for the payment of Government revenue, which was payable by Shayamamoyi during her lifetime. Now, a claim for contribution, as has been held by a majority of the Judges of a Full Bench of this Court in the case of Kinu Ram Das v. Mozaffer Hossein Shaha (1887) I.L.R. 14 Cal. 809 creates only a personal liability against the co-sharer on account of whose share the payment has been made, and does not create a charge on the estate. That being so, the claim must be held to be one for which Shayamamoyi was personally liable, but which the reversionary heirs are not bound to satisfy. It may appear somewhat anomalous that although, if Shayamamoyi had borrowed money for the purpose of paying her share of the Government revenue, mortgaging her husband's estate or even alienating any portion of it by sale, the mortgage or sale would have been binding on the reversioners, yet if she has made default in the payment of revenue and another co-sharer has paid the amount for her, such co-sharer can have no claim against the reversioners.
12. But one explanation of the anomaly is, we think, to be found in the fact that the widow's alienation for the purpose of paying the revenue becomes binding on the reversioners only when there is necessity made out for the alienation. But where the widow merely neglects to pay the revenue and somebody else pays it for her, it cannot be said that the default on the part of the widow was due to the necessities of the estate. It may be that she had funds in her hands out of which to make payment, and yet she did not make the payment. In such a case the persons who ought to be held properly liable would be, not the reversionary heirs to her husband's estate, but the persons who would inherit her stridhan. That being so, it becomes necessary to determine whether the appellants or any of them are the heirs of Shayam-amoyi's stridhan. As that question has not been determined, the case must go back to the first Court for its determination, and, as the ground upon which we remand the case is common to all the defendants, who have been made liable, the result is that the decree of the Lower Appellate Court must be set aside, and the case remanded for determination of the question, whether the defendants Nos. 1 to 8 or any of them are heirs to Shayamamoyi's stridhan. If the question is answered in the affirmative, the plaintiffs would be entitled to a decree against such persons as are found to be heirs to Shayamamoyi's stridhan. If the question is answered in the negative, as against all the defendants, the plaintiff's suit must fail. The costs of this appeal will abide the result. It will be open to the parties to adduce evidence on the issue for the determination of which the case is sent down.
13. The decree exonerating the defendant No. 9 from liability will stand, and the defendant No. 9 will recover her costs of this appeal from the appellants; but the costs so recovered will be costs in the cause and will be recoverable by defendants Nos. 1 to 5 from the plaintiffs or not according to the final result of the suit.