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Motichand and ors. Vs. Bajrang Sahai and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in17Ind.Cas.45
AppellantMotichand and ors.
RespondentBajrang Sahai and ors.
Cases Referred and Rakhohir Chattaraj v. Bipra Das Dey
Excerpt:
revenue sale law (act xi of 1859), section 9 - contract act (ix of 1872) section 69--mortgage by co-sharer--default in paying revenue by other co-sharers--payment of their share by mortgagee--suit by mortgagee for recovery of sums paid--whether suit maintainable without specifying share of revenue payable by each co-sharer--contribution suit, nature of--'defaulting proprietor,' meaning of--person not proprietor paying revenue--remedies. - .....a suit for recovery of money alleged to have been paid by the plaintiff to satisfy the arrears of government revenue in respect of an estate. the case for the plaintiff is that one mukut nath prasad was interested to the extent of a third share in one of the mouzahs by name balapur included within the estate. on the 4th july 1874, mukut nath executed an usufructuary mortgage in favour of the plaintiff, and since then the plaintiff has been in possession of the properties covered by the mortgage. under the terms of the mortgage contract, the government revenue was payable by the mortgagor. in 1905, however, some of the proprietors of the estate made default in the payment of government revenue, and the result was that the plaintiff was obliged to deposit several sums on various occasions.....
Judgment:

1. This is an appeal on behalf of the defendants first party in a suit for recovery of money alleged to have been paid by the plaintiff to satisfy the arrears of Government revenue in respect of an estate. The case for the plaintiff is that one Mukut Nath Prasad was interested to the extent of a third share in one of the Mouzahs by name Balapur included within the estate. On the 4th July 1874, Mukut Nath executed an usufructuary mortgage in favour of the plaintiff, and since then the plaintiff has been in possession of the properties covered by the mortgage. Under the terms of the mortgage contract, the Government revenue was payable by the mortgagor. In 1905, however, some of the proprietors of the estate made default in the payment of Government revenue, and the result was that the plaintiff was obliged to deposit several sums on various occasions to avert the sale of the properties. He now seeks to recover this sum from the defendants who are admittedly the proprietors of the estate. The suit was resisted principally by the first six defendants, who are the purchasers of the interest of the mortgagor of the plaintiff. Their defence was two-fold, namely, first, that the suit had not been properly constituted, because the plaintiff had asked for a joint decree in respect of the whole sum paid by him as against the entire body of proprietors; and secondly, that some of the payments, alleged to have been made by the plaintiff, were voluntary payments, because at the time they were made, the Government revenue had not actually fallen due.

2. The Court of first instance held that both these objections were well founded and dismissed the suit. The plaintiff then appealed and it is not disputed that he abandoned a portion of his claim to which exception had been taken on the ground that the payments covered thereby were voluntary. The District Judge overlooked this point, and, as he came to the conclusion that the suit had been properly constituted, he made a full decree in favour of the plaintiff. The first six defendants have now appealed to this Court, and on their behalf it has been contended, first, that the frame of the suit is bad and, therefore, it ought to be dismissed; and, secondly, that if any decree is made in favour of the plaintiff, there cannot be a decree for an amount in excess of the value of the appeal presented to the District Judge. A subsidiary point has also been raised that the District Judge ought not to have allowed interest at the rate of 12 per cent. per annum.

3. In so far as the first ground urged on behalf of the appellants is concerned, it has been contended that the suit is in the nature of a contribution suit and the plaintiff is, therefore, bound to claim against each proprietor the specific amount of Government revenue payable by him proportionate to his share in the estate. In support of this proposition, reliance has been placed upon the cases of Poornochunder Gangooly v. Kishen Chunder Ghose 5 W.R. 112 and Gunga Gobind Mundul v. Ashootosh Dhur 21 W.R. 255. In our opinion, the cases mentioned are clearly distinguishable and do not assist the appellants. It may be conceded, as laid down in the cases of Bholanath Chatterjee v. Inder Chand Doogur 14 W.R. 373; Rujaput Rai v. Mahomed Ali Khan 5 N.W.P.H.C.R. 215; Hira Chand v. Abdal 1 A. 455 and Ibn Husain v. Ramdai 12 A. 110 : A.W.N. (1890) 31 that a claim for contribution must distinctly set forth the amount due by each of the parties. That principle, however, has no application to the case before us, because the suit is not one for contribution within the meaning of this Rule. In a suit for contribution, the plaintiff alleges that he and the defendants were jointly liable to meet a specified demand, that he has been obliged to satisfy the demand by a payment in excess of his legitimate share, and that, consequently, he is entitled to call upon his co-sharers to contribute to the payment of this money. In a case of this description, the foundation of the claim of the plaintiff is that he has made a payment in excess of what is payable by him proportionate to his liability; consequently, his share of the liability must, in the first instance, be ascertained. If there is an ascertainment of his share, there is no reason why the shares of the other persons should not equally be ascertained in the same litigation. If this principle were not followed, the result would be that the plaintiff would have a decree to be satisfied jointly by all the defendants; and each of the latter would be entitled to bring successive suits for contribution after the demand of the plaintiff has been satisfied. To prevent multiplicity of litigation, it is thus obviously desirable that in a suit of this description, the plaintiff should get a decree for an ascertained sum against each of the persons originally liable to satisfy the joint demand. In the case before us, the position is entirely different. The plaintiff asserts that under the terms of the mortgage contract he was not liable to pay any share of the Government revenue. He has, however, been compelled, by reason of the default made by one or more of the entire body of proprietors, to satisfy the demand of the Government. If he had not done so, the estate would have been sold, and not merely the interest of the proprietors but his own interest as mortgagee would have been completely destroyed. Under these circumstances he seeks to recover what he has paid from the entire body of proprietors. In our opinion, he is obviously entitled to do so on the principle recognized in Section 9 of Act XI of 1859. That section deals with deposit by persons not proprietors. The Legislature has provided that if the arrears of revenue due have been paid by a person who is not a proprietor, he may have a three-fold remedy. If he is a party to a suit pending before a Court of Justice for possession of the estate, it is competent to the Court to put him temporarily in possession. In the second place, he is entitled to have a personal decree against the defaulting proprietors for the amount paid by him to save the estate from danger. In the third place, he is entitled also to have a lien on the estate for the amount paid. It was pointed out by their Lordships of the Judicial Committee in the case of Nugender Chunder Ghose v. Sreemutty Kaminee Dossee 11 M.I.A. 241 : 8 W.R. (P.C.) 17 that it is open to a person, who has made such a payment, to obtain a personal decree against the defaulting proprietor; and it was pointed out by this Court, in the cases of Upendra Chandra Mitter v. Tara Prosanna Mukerjee 30 C. 794 : 7 C.W.N. 609 and Rakhohir Chattaraj v. Bipra Das Dey 31 C. 975 that a person in this position is entitled to add the sum so deposited to his mortgage security. In the case before us, the plaintiff seeks a personal remedy against the defaulting proprietors. In answer to this claim, it has been argued that the defaulting proprietors are not all jointly and severally liable for the entire sum paid by the plaintiff, because, it is asserted, some of them deposited what they thought was proportionate to their share of the entire Government revenue. In our opinion, the answer suggested is obviously fallacious. In so far as the Revenue Authorities were concerned, as no separate accounts had been opened, the Collector was not bound to recognise any partial payment made by a co-sharer. If the entire demand was not satisfied, the estate was liable to be sold under the provisions of Act XI of 1859. Consequently, if one or more of the proprietors made a partial payment, they did not cease to be defaulting proprietors, because they were the component members of an entire body from whom the whole sum was legally recoverable. We are of opinion that the expression 'defaulting proprietor' in Section 9 of Act XI of 1859 means, where there is more than one proprietor, the entire body of such proprietors. It is clear, therefore, that under Section 9 of Act XI of 1859, the plaintiff is entitled to succeed. We may add that the plaintiff is also entitled to succeed under Section 69 of the Indian Contract Act. That section provides that 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. The reasonable interpretation of this section is that it applies only to cases in which the person who makes the payment is himself not liable to make the payment. In the case before us, as already explained, the plaintiff was not bound to pay any portion of the Government revenue; the defendants, on the other hand, were so liable. The plaintiff was also interested in the payment of this money, because if the money was not paid, his interest as mortgagee was liable to be extinguished by the sale. He has accordingly made the payment. He is, therefore, entitled to be reimbursed by the others, that is, by the whole body of proprietors who were bound by law to pay the entire sum of the Government revenue. It is clear, therefore, that, from whatever point of view the case may be considered, the plaintiff is entitled to a decree as against all the proprietors. The suit, therefore, has been properly constituted.

4. In so far as the second contention of the appellant is concerned, it has been conceded by the learned Vakil for the respondent that the plaintiff is entitled to a decree only for the sum at which he valued his appeal to the District Judge. In fact, the point appears to have been overlooked by the Court below, and if the attention of the learned District Judge had been drawn to the matter, the error would have been avoided, The decree, therefore, will be varied.

5. In so far as the subsidiary point as to interest is concerned, there is no substance in it. No objection appears to have been taken at any stage of the suit that the amount claimed as interest was excessive. We see no reason, therefore, to allow interest at a rate lower than 12 per cent.

6. The result is that, subject to the variation in the amount of the decree, it will be affirmed. As the appeal has substantially failed, the appellants must pay the respondents their costs in this Court.


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