1. This is an appeal by defendant 1. The suit was one for contribution. There were two patnis which were held in the following manner: plaintiff one-third; defendants 2 to 10-one-third; defendants 11 to 16-one-third. Defendant 1 had a darpatni under defendants 2 to 10. Defendants 2 to 10 had a darpatni under defendants 11 to 16 and defendant 1 had a sepatni under them. There were the usual terms in the leases to the effect that the darpatnidar and the sepatnidar would pay one-third of the patni rent to the zamindar. Ex. 7 is one of the leases. In order to save the patnis from being brought to sale the plaintiff paid the whole of the amount due and then instituted the present suit for contribution. The plaintiff obtained a decree against all the defendants but it was rather stultified by a direction that he could realize the decretal amount from defendant 1 alone. Defendant 1 appealed without success and he has now appealed to this Court. There is no appeal or cross objection by the plaintiff against the inconsistency in the decree which I have just pointed out.
2. Defendant 1 is not one of the patnidars jointly liable with the plaintiff for the payment of the patni rent. He cannot therefore be made liable to contribute, unless the zamindar is entitled to sue him on the contracts to which he (the zamindar) was a stranger. This question has been frequently considered in this Court. It appears now to be well settled that ordinarily such a stranger cannot sue. The only opinion to the contrary which I have been able to discover is that of Lort-Williams J. in Khirode Behari Dutt v. man Gobinda : AIR1934Cal682 . That opinion has been con. sidered amongst others in K.C. Mukhertjee v. kiran Chandra (1938) 42 C.W.N. 1212 and District Board, maldah v. Chandra Ketu narayan Singh : AIR1937Cal625 , to which I myself was a party. While this opinion of the learned Judge has been frequently dissented from, it has never, so far as I know, been followed. Both the learned Judges in the Courts below took the view that the zamindar as a stranger could not sue on the contract. They got over the difficulty, however, the Subordinate Judge finding that the patnidar was a trustee for the zamindar, and the District Judge finding that he was an agent.
3. There are no materials to support either of these conclusions. The contract is one of a type which is frequently found and is precisely similar to those which were considered in the cases reported in K.C.Mukherjee v. Kiran Chandra (1938) 42 C.W.N. 1212 (referred to above) and Jiban krishna Mullick v. Nirupama Gupta (1926) 13 A.I.R. Cal. 1009. Those authorities are directly against the findings of the learned Judges in the Courts below, and we must overrule the contention that the appellant was liable to contribute because the zamindar would be entitled to sue him on the contracts. Reliance however was also placed upon Sections 69 and 70, Contract Act. On behalf of the appellant, Mr. Mukherjee contended that the former does not apply, firstly, because it has no application to contractual obligations, and secondly, because the suit is not one for reimbursement but one for contribution. In our opinion it would be very difficult to say that in no conceivable circumstances could the Section apply to contractual obligations. Such an interpretation would undoubtedly limit the usefulness of the Section and lead to most illogical results. For example, it would follow that, while a patnidar who paid the land revenue would be entitled to claim reimbursement from a zamindar, no such right would accrue to a darpatnidar who paid the patni rent. Such a distinction would be quite unreasonable and it has been held that in such circumstances the darpatnidar is entitled to claim reimbursement: videRajani Kanta v. lal Mahommad (1918) 5 A.I.R. Cal. 636. In support of the applicability of the Section, Mr. Das relied strongly upon the decision in Somashastri Vishwanathshastri v. Swamirao Kashinath (1917) 4 A.I.R. Bom. 55. Mr. Mukherjee asked to say that that is a halting decision to which very little weight can be attached. The facts as accurately reported in the head-note are as follows:
K, who owned considerable property, gave a portion of it to his daughter's husband (plaintiff) in 1878, the deed of gift expressly providing that K undertook to pay the judi in respect of the portion. In 1902, K made a gift of the residue of his property to B, the gift deed containing special reference to the previous gift of 1878 and enjoining the donee to act acoording to that gift. The judi was regularly paid by E first and B afterwards. In 1905, B in his turn made a gift of the property to the defendant; the deed of gift in this case contained a reference to the gift of 1878 but it contained no words requiring the donee defendant to abide by the terms of that gift. The defendant having failed to pay the judi to Government, the plaintiff was required to pay it. He sued to recover the amount from the defendant.
4. Now it is perfectly true that the learned Judges found it very difficult to say that the defendant was liable to pay. But having once reached that conclusion they easily found that Section 69, Contract Act, applied to the case. The decision is undoubtedly an authority for the proposition that the Section applies to contractual obligations. A similar view was taken by this Court in Mothooranath Chuttopadhya v. kristo kumar Ghose (1879) 4 Cal. 369. I myself take the same view and I would respectfully dissent from the view taken by the Madras High Court in Kunchitahpatham Pillai v. Palamalai Pillai (1918) 5 A.I.R. Mad. 1012. Turning to the faots of the present case, I am clear that the darpatni and sepatni leases are not within the terms of the Section. Before it can be said that the appellant is bound by law to pay a portion of the patni rent, it must be shown that he could be compelled to do so. We have already held that the zamindar is not entitled to recover it from him. What defendant 1 is bound by law to pay is the darpatni and sepatni rent. The stipulation with regard to the payment of a portion of the patni rent at the zamindar's cutchery merely provides a particular method for the payment of a portion of what is due from him to his own immediate superiors. In view of these provisions, the receipt from the zamindar will amount to a valid discharge pro tantb of the darpatni and sepatni rents. In these circumstances, it cannot be said with any show of reason that the appellant was bound by law to pay any portion of the patni rent. The second question is whether Section 69 applies to contribution suits. Here again, the decisions are not uniform, but in my judgment the better opinion is that it does not. Contribution and reimbursement are really totally different things. The words ' interested in the payment of money' seem to imply that the person so interested is not the person liable. It would clearly be an understatement and in my opinion misleading to say that a person is interested in the payment of his own debts. The illustration clearly applies not to contribution but to re-imbursement and the use of the word 'reimbursement' in the Section itself points to the same conclusion.
5. There remains the applicability of Section 70. I am unable to say that this can have any application. The plaintiff was personally liable for the whole of the patni rent. When he paid it, he was doing so primarily on his own behalf. On the other hand, the appellant was not liable at all. As the plaintiff was himself personally liable, no question of acting on behalf of the appellant or of acting gratuitously can possibly arise. Any benefit which the appellant might derive from the payment would be purely subsidiary to the benefit which the plaintiff was conferring upon himself. The appellant would also still be liable' to his own immediate landlord, finally, Mr. Das strongly urged (and it appears from the end of the judgment that the learned Judge himself felt) that the appellant ought to be made to pay, because his failure to do so has led to all this trouble. That of course is no answer to a defence that under the law he cannot be made to pay. It is merely a consideration affecting the question of costs. We accordingly allow the appeal. The decrees of the Courts below, so far as defendant 1 is concerned, are set aside and the suit against him is dismissed. In the circumstances of the case we make no order as to costs.
Latifur Rahman, J.
6. I agree. There is very little for me to add to what my learned brother has said. I should however like to point out that the plaintiff is a patnidar having one-third share in two patnis. Defendants 2 to 10 have also one third share in them, while defendants 11 to 16, hold the remaining one-third share. By purchase, the plaintiff has now become possessed of two-thirds share in the two patnis. Defendants 2 to 10 had sublet their one-third share to defendant 1. Similarly, the predecessors of defendants 11 to 16 had sublet their one-third share to the predecessors of defendants 2 to 10 in darpatni right. Defendants 2 to 10 again sublet this darpatni right in sepatni right. The condition in these leases being that defendant 1 would pay the patni rent and chaukidari jama direct to the zamindar. The zamindar, the Raja of Nashipore, commenced astam proceedings as the rent was in default. The plaintiff who was liable to pay two-thirds share of the rent, in order to save the patnis from sale not only paid his two-thirds share but also the remaining one-third which defendants 2 to 16 were liable to pay, and thus saved his patni right. Thereafter, the plaintiff instituted this suit for contribution against all the defendants and has claimed the amount from defendant 1, as by barat made in the darpatni lease and sepatni lease defendant 1 undertook to pay the dues of defendants 2 to 16 to the zamindar. The learned Subordinate Judge has held that the liability of the defendants arise both under Section 69 and Section 70, Contract Act. The lower Appellate Court has upheld that decision.
7. In my judgment, the view taken by the Courts below is not correct. A mere agreement between defendant 1 and defendants 2 to 10, for the payment of the patni rent on behalf of the plaintiff to the zamindar cannot be made the foundation of a legal obligation on the part of defendant 1 to pay to the zamindar. The latter cannot enforce such an agreement, nor can sue upon it. There is no consideration passing from defendant 1 to the zamindar to make such an agreement binding. The plaintiff is bound by law to pay the patni rent to the zamindar but defendant 1 is under no such legallobligation. As a general rule, the agreement between these defendants can only be enforced by them, unless, of course, the agreement although in form it is with the defendants, is intended to secure a benefit to the plaintiff, so that the latter is entitled to say that he has a beneficial interest as 'cestui que trust,' then the plaintiff will be entitled on equitable grounds to enforce the contract. The mere payment of rent to the zamindar does not secure a benefit to the plaintiff. Both the Courts below have applied the equitable rule, but having regard to the particular facts of this case it has no application. In this connexion I may refer to a decision of this Court in Jiban krishna Mullick v. Nirupama Gupta (1926) 13 A.I.R. Cal. 1009 where A, a patnidar, created a darpatni in favour of B for Rs. 244 per annum. B created a sepatni by an instrument in favour of G for Rs. 344 per annum out of which Rs. 244 was to be paid to A for the darpatni rent and Rs. 100 was to be paid to B the darpatnidar. G paid to A for some time and then fell into arrears. A sued for rent. Page J. observed as follows:
Applying the equitable rule to the facts of this case, it is clear from a consideration of the terms of the instrument by which the sepatni was created that the instrument was not executed for the benefit of the plaintiff in any sense and that so far as the plaintiff was concerned, the only effect of the instrument was that the sepatnidar agreed with the darpatnidar to pay to the plaintiff as a nominee of the darpatnidar a portion of the rent due under the sepatni. The equitable rule should only be applied in rare cases and under exceptional circumstanoes and can have no application in a case such as the one under appeal.
8. Then again the plaintiff has instituted the present suit for contribution. Mutuality is said to be the test of contribution. In Satya Bhusan v. Krishna kali (1915) 2 A.I.R. Cal. 278 the proposition of law has been formulated by Mookerjee J. in the following terms:
As pointed out in the Oxford Dictionary (Vol.2, p. 923) contribution signifies payment by each of the parties interested in his share in any common liability. Consequently, an action for contribution is a suit brought by one of such parties who has discharged the liability common to them all to compel the others to make good their shares ... Mutuality is the test of contribution. If A and Bare jointly liable for a sum of money, and A alone satisfies the whole debt, he is entitled to call upon B to contribute to the extent of his proportionate share, and conversely, if B alone pays the whole debt, he is entitled to call upon A to contribute.
9. Applying these tests in the present suit before us, the appellant cannot be called ,upon to contribute. For the above reasons, in my opinion, the appeal should be allowed and the suit against defendant 1 should be dismissed with costs.