1. By an agreement, dated the 17th Chaitra 1315 B.S., two of five brothers agreed to take over the management of their joint property for a period of five years from the 1st Haisakh 1316 to Chaitra, 1320. The case was argued before us with sole reference 11 Clause 8 of the agreement. In that clause the management is expressed to be for the 'improvement and upkeep' of the estate. The managers were to take two-fifths of the profits and to be liable for two-fifths of the profits and expenses, the remaining three-fifths of the profits and expenses being respectively payable to and by the other three brothers who renounced their rights of management during the period in question. The clause ends as follows: If for the protection of the property the managers are required to pay any money in advance they shall make such payment and protect the property and they will be afterwards entitled to recover the same with interest; if the managers fail to pay the profits in proper time they shall be bound to pay the same with interest.'
2. The plaintiff in this suit is one of the two managers and the defendant No. 2 is the other. It appears that the estate stands in the Collectorate in the name of the plaintiff, and that a certificate having been issued against him he was compelled to pay the of Rs. 1,256-0-0 on account of arrears of Government revenue due in respect of the year 1910. The payment was made on the 28th March 1911 and on the 19th April following he brought this suit for contribution against his brothers. He obtained a decree in the Court of first instance which was confirmed by the learned Subordinate Judge in the Court of Appeal below. Two of the brothers, the defendant No. 1 and the defendant No. 2, have preferred appeals (Nos. 163 and 164 of 1913) to this Court.
3. For the defendant No. 1 it is argued in effect that the Government revenue was payable in the first instance by the plaintiff and the defendant No. 2 as managers out of collections which they made or ought to have made from the estate and in the circumstances a claim for contribution is untenable. There is undeniable force in this argument. It is not suggested that the agreement of 17th Chaitra 1815 was for any reason invalid. As the suit is framed, the plaintiff can only succeed by bringing his case within the terms of Section 69 of the Contract Act: A person who is interested in payment of money which another is bound by law to pay, and who, therefore, pays it, is entitled to be re-imbursed, by that other.' No doubt in a sense all the brothers were responsible for the Government revenue and the payment made by the plaintiff was made on behalf of them all. But the relationship of principal and agent created by the agreement must not be overlooked. The managers were under a legal duty to exercise reasonable care and diligence in the management of the estate. As both Courts below have held, a payment on account of Government revenue is a payment for the upkeep of the estate and it is difficult to see how the managers or either of them can recover anything on account of such a payment unless and until they or he shows that he is entitled as agent to pharge his principals. The plaintiff has not attempted to prove anything of the kind. He has simply ignored his obligations under the agreement, as to which the plaint is entirely silent. As between the plaintiff and the defendant No. 1, therefore, it is not shown that the latter was legally bound to make the payment in respect of which contribution is sought. On the contrary the presumption is that as between the parties, the plaintiff and the defendant No, 2 are the persons primarily responsible and no attempt has been made to displace that presumption.
4. As to the concluding part of elapse 8 of the agreement it is obvious that the payment of arrears of Government revenne cannot be regarded as a payment in advance, at any rate until it is shown that there were no assets from which a payment could have been made in the ordinary course. What seems to have been contemplated by advances was expenditure on account of improvements.
5. As to the case of defendant No. 2, here again it is difficult to see how a claim for contribution can ba maintained on the footing adopted in the plaint. It is impossible to say what the relative rights and obligations of the plaintiff and the defendant No. 2 may be, without reference to what took place under the agreement and such questions as the actual control which both or either had over the assets.
6. In my opinion no claim for contribution can be maintained in the suit as framed. The appeals, therefore, succeed and the suits must be dismissed with costs here and in the Courts below.
7. Mullick, J.--I agree.