1. This appeal arises out of a suit for contribution.
2. A preliminary objection has been taken to the hearing of the appeal on the ground that the suit is of a nature cognizable by the Court of Small Causes, and does not come within Article 41 of the Second Schedule of that Act. It is pointed out that the plaintiff's case was that he was a tenant under the defendant No. 1, and he sued to recover from the defendants the whole amount paid by him to save the property a portion of which was held by him as a tenant under the defendant No. 1; in other words, he denied any common liability with the defendants which is the foundation of a suit for contribution. That no doubt was the plaintiff's case, but there was an alternative case, viz., that if the plaintiff was held liable to contribute then a decree for proportionate amounts might be passed against the defendants.
3. The Court of first instance held that the plaintiff was a co-sharer and liable to contribute and on that footing gave a modified decree to the plaintiff. The plaintiff did not appeal against that decree. Under the circumstances we are of opinion that the suit is one for contribution by a sharer in joint property in respect of a payment made by him of money due from a co-sharer, and is exempted from the cognizance of Small Cause Courts under Article 41 of the Second Schedule of Act IX of 1887. The preliminary objection is accordingly overruled.
4. As regards the merits of the case, it must be held upon the findings arrived at that the plaintiff and the defendant No. 1 were co-sharers of a taluk. The share of the defendant No. 1 in the taluk was purchased by the defendant No. 2 in execution of a mortgage-decree in 1908. Prior to the purchase of the defendant No. 2 the landlord of the taluk had obtained a decree for arrears of rent of the taluk and after the purchase by defendant No. 2 put up the taluk to sale in execution of the rent-decree, when the plaintiff deposited the entire amount due to the landlord and saved the taluk. He then brought the present suit for contribution. The Court of first instance passed a decree against the defendant No. 2 and the other co-sharers and that decree was confirmed on appeal.
5. The defendant No. 2 has appealed to this Court and it is contended on his behalf that as the rent-decree obtained by the landlord was for a period prior to the date of his purchase, he was not a person bound by law to pay' (any share of the rent) within the meaning of Section 69 of the Contract Act. It is true he was not personally liable for the rent for the period prior to his purchase, but the taluk, a share of which was purchased by him, was liable to be sold in execution of the decree. In Mothooranath Chattopadhya v. Kristo Kumar Ghose 4 C. 369, it was contended that the section applied only to cases where there was a personal liability for the debt, and did not apply whereas in the present case the liability attached to the land only. Markby, J., in overruling the contention said as follows: Now, I think it is rightly argued that taking that section by itself, it is possible to say that that section only applies to cases where the person who is there called 'the other' was personally liable for the debt, but it is clear from the illustration that that is not the intention of the Legislature. The illustration gives the case of a lessee paying off revenue due to Government; but the liability to pay revenue due to Government is not a personal liability of the zemindar, but a liability which is imposed upon the zemindar's land. It is, therefore, clear that that section was intended to include the cases not only of personal liability, but all liabilities to payments for which owners of lands are indirectly liable, those liabilities being imposed upon the lands held by them.'
6. We agree with the view taken in the above case, and hold that the defendant No. 2 is a person who is 'bound by law to pay' within the meaning of Section 69 of the Contract Act.
7. The learned Pleader for the appellant sought to distinguish the case upon the ground that there was no personal liability of either of the parties to the case, and that the plaintiff in the present case personally as well as his share of the taluk was liable for the rent, and the defendant No. 2 was not personally liable but only his share of the taluk. If, however, a person is bound by law to pay' by reason of the liability attaching to the land, the defendant No. 2 comes within the purview of the section although his liability is not a double liability like that of the plaintiff. Besides in the present case the landlord did not proceed against the tenants personally.
8. It was further contended that the plaintiff was not 'a person interested in the payment of money' but was himself bound by law to pay and that as such he cannot come under the section. But the plaintiff in the case cited above was also 'bound by law to pay' by reason of the liability attaching to the land and that did not prevent him from coming under the section. The learned Judges held that he was 'interested in the payment' of the money because if he had not paid it his land would have been sold, as in the present case. The first contention of the appellant is accordingly overruled.
9. It is next contended that as between the defendant No. 1 and the defendant No. 2, the former ought to have been made liable for the plaintiff's claim as the decree for rent was for a period prior to the date of the purchase by the defendant No. 2 in execution of his mortgage decree, during which the defendant No. 1 was in possession, and that the Courts below are wrong in making a decree against the defendant No. 2. But as pointed out in the case of Srimati Moharanee Dasya v. Harendra Lal Boy Chowdry 1 C.W.N. 458, rent is, by operation of law, the first charge on a tenure and the person who purchases the same at an execution-sale must, in the absence of anything to denote the contrary be taken to purchase it charged with the rent which is due in respect of it at the time of its purchase and there being no privity between him and the judgment-debtor, he cannot recover from the latter the money which he is obliged to pay for the rent so due at the time of the purchase.
10. The case has been followed in Peary Mohan Mukhopadhya v. Sreeram Chandra Bose 6 C.W.N. 794 and Manindra Chandra Nandy v. Jamahir Kumari 32 C. 643; 9 C.W.N. 670.
11. We have been referred to the cases of Sreemutty Jogemaya Dassi v. Girinder Nath Mukherjee 4 C.W.N. 590 and Gobindo Chunder Chukerbutty v. Basant Kumar Chukerbutty 3 C.W.N. 384. But all that was laid down in the first case was that a purchaser of a tenure is not personally liable for its rent which fell due before the date of purchase, although the tenure may be liable for such rent. In the second case the appellant, an unrecorded co-sharer of a tenure, was held liable to contribute to the rent paid by a recorded co-sharer to save the tenure, although the share of the former had been sold away and purchased by another at the date of the sale in execution of the rent decree. Reliance is placed upon a passage in the judgment in that case which runs as follows: 'It may be that the purchaser of... the share could not have come down upon the appellant for any rent which had become due before the purchase, but the question here is not between the appellant and the purchaser, but between the plaintiff and those who were the co-owners with him of the taluk during the period for which the rent became due.'
12. In the present case, however, the plaintiff does not insist upon his claim against the defendant No. 1, and it is the defendant No; 2 who raises the question of the liability of the defendant No. 1. It is found that the defendant No. 2 purchased the share of the defendant No. 1 at a low price, which in the opinion of the Court below indicated that he purchased the share subject to the liability to contribute. No equitable consideration, therefore, arises in favour of the defendant No. 2.
13. It is unnecessary to consider whether the defendant No. I could be held liable on the basis of the contract (of mortgage) as between him and the defendant No. 2, because the latter never set up such a case. The case of the defendant No. 2 simply was that the debt was a personal liability of the defendant No. 1 and he was bound to pay it, by reason of his having been in possession and in enjoyment of the profits of the share during the period for which the rent was due.
14. The defendant No. 2 is liable only to the-extent of the share purchased by him. But no question was raised in the Courts below that the amount decreed against him exceeds the value of the share purchased by him,
15. We are of opinion that the decree appealed from should be confirmed and this appeal is accordingly dismissed with costs, one set of Pleader's fees will be divided between the plaintiff and defendant No. 1 respondents.