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Dinu Ghose and ors. Vs. Kati Ghose - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in95Ind.Cas.545
AppellantDinu Ghose and ors.
RespondentKati Ghose
Cases ReferredManindra Chandra Nandy v. Jamahir Kumari
Excerpt:
contract act (ix of 1872) sections 63, 70 - jote held by several persons--money paid: by one to avoid sale-- contribution. - .....20 : 4 ind. dec (n.s.) 72. in that ca3e the question that came up for decision was whether the suit for contribution, not founded upon contract but in respect of money for' which the plaintiff and the defendant in the c mtribution suit had been by a former decree made jointly liable was or was not within the cognizance of the court of small cause. it was held that such a suit did not lie in the court of small causes. in coming to that conclusion the learned judges made a casual observation to the following effect: 'we very much doubt, whether a suit for contribution, where both plaintiff and defendants were liable for the money paid, by the plaintiff, falls within the scope of either section 69, or section 70 of the contract act, which, seem rather to contemplate persons who.....
Judgment:

Suhrawardy, J.

1. The suit out of which this appeal has arisen was one for contribution. The facts are that the plaintiff and the defendants held a jote jointly. At the instance of the landlord a certificate was issued and the jote was sold for arrears of rent. The plaintiff paid the* amount and had the sale set aside. Thereafter the present suit, was brought by the plaintiff for contribution against the defendants Nos. 1 to 6. The defendants Nos, 5 and 6 settled this case against them with the plaintiff; and the defendaiit No. 4's contention was that he had paid, his share of rent to the plaintiff. He died during the pendency of this appeal in this Court and no substitution has been made-in his place. The defendants Nos. 1 to 3 who are now the appellants before us Contend that they had paid their quota of the rent to the landlord before the certificate was-issued. The Courts below have granted' a decree to the plaintiff and the only ground taken before us on behalf of the: defendants Nos. 1 to 3 is that the plaintiff and the defendants being co-tenants and jointly liable for the rent in respect of, their joint tenancy, no right of contribution exists between them. I may mention' that this point was not raised in either of the Courts below and it is one which may depend upon the nature and special incidents of the tenancy. We are not disposed to allow the appellants to take it in this Court which is the third Court dealing only with questions urged in the Courts below in which only such questions of fact could have been raised. But on the ground taken by the appellants I do not think that they are entitled to succeed. The only authority which the learned Advocate' for the appellants has placed before us is the decision in the case of Futteh Ali v. Gunganath Roy 8 C. 113 : 10 C.L.R. 20 : 4 Ind. Dec (N.S.) 72. In that ca3e the question that came up for decision was whether the suit for contribution, not founded upon contract but in respect of money for' which the plaintiff and the defendant in the c mtribution suit had been by a former decree made jointly liable was or was not within the cognizance of the Court of Small Cause. It was held that such a suit did not lie in the Court of Small Causes. In coming to that conclusion the learned Judges made a casual observation to the following effect: 'We very much doubt, whether a suit for contribution, where both plaintiff and defendants were liable for the money paid, by the plaintiff, falls within the scope of either Section 69, or Section 70 of the Contract Act, which, seem rather to contemplate persons who not-being themselves bound to pay the money or to do the act, do it under circumstances which give them a right to recover from the person who has allowed the payment to be made and has benefited by it.' They cited no authority for this view as it was not necessary for the decision in that case. But a contrary view was taken long before that case was decided (and has been consistently held to be correct) in Mathoora Nath Chuttopadhya v. Kristo Kumar Ghose 4 C. 369 : 2 Ind. Dec. (N.S.) 234. The facts were that A and B purchased at different times portions of the property on which there was a mortgage. There was a covenant in the deed of conveyance in favour of B that he would pay the entire mortgage-debt on the property. The mortgagee subsequently brought a suit and obtained a decree which was paid off by B. B then brought a suit for contribution against A and it was held that notwithstanding the terms in B's conveyance he is entitled to succeed against A and the ground for the decision is thus stated by Markby, J., with reference to Section 69 of the Indian Contract Act: 'The plaintiff was interested in the payment of this money, because, he snys, if he had not paid it, his land would have been sold and it was a debt which the defendant was bound' by law to pay, because the mortgagee had legal, means to recover it against him. It seems, therefore, impossible to say that the case does not fall within that section.' (a. 69). In Swarnamoyee Debiy. Hari Das May 6 C.W.N. 903 the Court observed as follows: 'That section (Section 69) contemplates a case in which there are several co-sharers in possession of land and where some of them having neglected to pay what is due from them in respect of the occupation of the land, one of their number pays what 19 due from all, he may then recover contribution from the rest.' To the same effect is the observation of Doss, J., in Mohendra Ghoshal v. Bliuban Mardana 6 Ind. Cas. 810 : 14 C.W.N. 945 : 12 C.L.J, 568 : 38 C. 1: 'The plaintiff and the defendants Nos. 1-8 are joint owners of the tenure and are jointly and severally liable to their landlords for the entire rent It is unquestionable that if any co-sharer tenant pays off the entiie rent, he is entitled to sue his other co-sharers for contribution.' In Ram Lal Mandal v. Khiroda Mohini Dasi 20 Ind. Cas. 569 : 18 C.W.N. 113 one of the joint tenants against whom a decjee for rent was obtained purchased the decree in the benami of another person and subsequently used his co-tenant for contribution. It was held that the purchase by the plaintiff though against the provisions of the Code was virtually a payment of the' decretal anoant and, therefore, the plaintiff was entitled to claim contribution from his co-tenants. In another case in the same volume Prosonno Kumar Basu v. Jamalud-din Mahomed 15 Ind. Cas 55 : 18 C.W.N. 327 the facts were that A and B were mider-raiyats in respect of a nontransferable holding. B transferred his share to A. The transfer was not recognised by the landlord. The landloid obtained a decree for rent against A andJS whereupon A satisfied; the decree and brought a suit for contribution against B. It was held that Section 69 of the Contract Act applied and the following observation vi as made: 'The plaintiff by the pajment which he made satisfied the arrears of lent due on account of the holding and that rent was payablc by the plaintiff and the defendant No. 1., We are, therefore, not prepared to hold that Section 69 has no application.' Then the learned. Judge's piocetded to observe that assuming that Section 69 had no application Section 70 undoubtedly governed the case. Against this current of decisions there is an . observation made in Manindra Chandra Nandy v. Jamahir Kumari 32 C. 643 : C.W.N. 670: 'It will be seen that Section 69 contemplates a case where the person, who makes the payment, is under no legal liability to make it, and he pays the money for another person, who is bound in law to pay.' This observation was not necessary for the purposes pf the judgment in that case for there the plaintiff was found to be under the legal liability to pay the entire amount of rent claimed in that suit. Even if Section 69 is held not to apply to a case like the present., there is hardly any doubt that Section 70 covers a case of this description, It is argued that the use of the words' another person' suggests that the person making the payment must be under no liability to make it. We do not think that we should accept this contention as sound.

2. The result is that this appeal fails and is dismissed with coats.

Graham, J.

3. In my judgment the terms of Section 70 of the Indian Contract Act are wide enough to cover the case and the plaintiff-reason lent is clearly entitled to recover from the defendants the amount paid by him on their behalf and for their benefit. It may be hard on defendants Nos. 1 to 3 who had paid their share of the rent to the landlord before the certificate was issued, but that would not justify us in denying justice to the plaintiff in this case, who is, in my opinion, entitled in law as well as in equity to be reimbursed by the defendants. The defendants Nos. 1 to 3 must seek their remedy by a suit, if so advised, against the landlord. I agree that the appeal should be dismissed with costs.


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