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Hari Prosad Roy Chowdhury Vs. Rama Prosad Rai Chowdhury - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in60Ind.Cas.414
AppellantHari Prosad Roy Chowdhury
RespondentRama Prosad Rai Chowdhury
Cases Referred and Jiban Krishna Roy v. Brono Lal Sen
Excerpt:
contract act (ix of 1872) section 70 - joint estate in tenancy--decree for rent--decree satisfied by one co-tenant--contribution--liability of other co-tenants. - .....from the defendant no. 1 one hari prosad the sums paid by the plaintiff in satisfaction of six rent decrees which according to the plaintiff were justly payable by defendant no. 1.2. it appears that the original owners of certain tenures wore the plaintiff, rama prosad, the defendant no. 1 hari prosad and one kali prosad, the last two being brothers. on the death of kali prosad he was succeeded first by his widow and then by his daughter chandra kumari. chandra kumari, it appears, died towards the close of the year 1316. thereafter the landlord brought six rent suits claiming rent for the years 1313 to 1316 that is for four years during which chandra kumari was alive. he made parties defendants to these six rent suits rama prosad, hari prosad and one sital prosad who was the.....
Judgment:

1. These six, appeals arise out of suits brought by the plaintiff to recover from the defendant No. 1 one Hari Prosad the sums paid by the plaintiff in satisfaction of six rent decrees which according to the plaintiff were justly payable by defendant No. 1.

2. It appears that the original owners of certain tenures wore the plaintiff, Rama Prosad, the defendant No. 1 Hari Prosad and one Kali Prosad, the last two being brothers. On the death of Kali Prosad he was succeeded first by his widow and then by his daughter Chandra Kumari. Chandra Kumari, it appears, died towards the close of the year 1316. Thereafter the landlord brought six rent suits claiming rent for the years 1313 to 1316 that is for four years during which Chandra Kumari Was alive. He made parties defendants to these six rent suits Rama Prosad, Hari Prosad and one Sital Prosad who was the daughter's son of Chandra Kumari and therefore heir to stridhan property. The rent-suits were decreed and payment by the defendant was directed, and it, may here be observed that the payment to be made was not payment to be made out of the estate left by Chandra Kumari. The decrees are essential ly rent decrees against the tenant defendants. These decrees were put in execution and eventually some portions of the plaintiff's personal properties were put to sale and in order to recover there properties the plaintiff was compelled to satisfy the decrees in full. That he was justly liable to pay 3rd of the decretal amount it is not disputed, and similarly it is not disputed that Hari Prosad was similarly liable to pay and in fact he had paid and of the respective decretal amounts.

3. The question is as to the remaining 1/3rd, whether Hari Prosad who are succeeded to Kali Prosad's share as his reversionery heir should be required to pay the remaining 1/3rd on account of his having inherited the share of Kali Prosad. Both Courts have Answered this question in the affirmative.

4. The learned Vakil for the appellant don tends on the strength of a number of cases which he has cited for instance the cases reported as Bireswar Das Dey v. Kamal Kumar Dutt 16 Ind. Cas. 437 : 17 C.W.N. 337, Kristo Gobind Majumdar v. Hemchunder Chowdhury 16 C. 511 : 8 Ind. Dec. (N.S.) 337, and Jiban Krishna Roy v. Brono Lal Sen 30 C.550 at P. 554 : 7 C.W.N. 425 : 30 I.A. 81 : 5 Bom. L.R. 428 : 8 Sar. P.C.J. 444 (P.C.) that Sital Prosad and not he is liable for that fed. We are of opinion that this contention must fail. The decrees were not made against Chandra Kumari in her life time They were made against Hari Prosad after her death when he was in possession as tenant having interest extending to a 1/3rd share. It is true that Sital Prosad was also a judgment-debtor in that decree, but on the facts found it appears to us that he was not a necessary party. The only tenant-defendants in possession of the tenures were Rama Prosad and Hari Prosad and Hari Prosad was interested in them to the extent of 2/3rd share. The rent-decree was the first charge on the holding in his hands and in the plaintiff's hands. The decree was against him. The payment made by the plaintiff was certainly not a voluntary payment and it cannot be said that Hari Prosad was not benefited by that payment and. on the principle laid down in Section 70 of the Contract Act Hari Prosad is bound to reimburse the plaintiff.

5. It has been pointed out to us that in the plaint as framed the plaintiff asked for relief not against Hari Prosad but against Sital Prosad. That claim was never formally amended, but it is quite clear that when the case came an for trial it was dearly understood that the claim was made against defendant No. 1, Hari Prosad, and that Hari Prosad fully realized that position and had every opportunity given him to meet that case. The defect in the plaint and the failure to amend it, therefore, did not affect the merits of the case and does not affect the appeal on its merits.

6. For these reasons, we dismiss these six appeals with costs.


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