1. One of the several proprietors of an estate brought a suit for the moharrari rent of his share against plaintiffs, defendants Nos. 1 and 2 and others and obtained a decree which was executed against the plaintiff alone. The plaintiff paid up the amount and obtained amicable contribution from all others of his co-judgment-debtors except defendants Nos. 1 and 2 and another, with regard to whom there is no dispute now. The plaintiff brought this suit for contribution against the unwilling defendants. The defendants Nos. 1 and 2 pleaded that they were the furzidars of one of the superior maliks and, having no interest in the moharrari tenure for which rent had been decreed, were not liable. The learned Sub-Judge gave effect to this plea and dismissed the suit against them. The learned District Judge in appeal by the plaintiff held that the case came within the purview of Section 69 of the Contract Act and decreed the suit without going into the question of fact whether the plea of benami was made out. It is contended on appeal before us that the learned Judge was wrong, that the rent decree was not res judicata between the plaintiff and the defendants and, therefore, the defendants were entitled to raise the question of their liability notwithstanding the decree and that the case must go back for a decision on the plea of benami. It is also contended that Sections 69 and 70 of the Contract Act have no application. The question of res judicata cannot arise in this case as the matter in issue in the rent suit was the joint liability of the several defendants of that case and the question in this case is the respective liabilities of several defendants amongst themselves and the parties are not the same, as the plaintiff does not claim through any one opposed to the defendants in the rent suit. The present suit is, however, based on the rent decree which may be taken as a part of the cause of action. It fixes the joint liability upon the plaintiffs and the defendants as between themselves on the one side and the decree-holder on the other. So far the decree is final and conclusive and must be taken as a settled fact. It is not open to the defendants to say that they ought not to have been made jointly liable in that case. All that they can say is that the amount of their respective liabilities has not been settled and as between themselves and the plaintiff the latter is liable to a greater extent if he had a greater share in the profits. That is not their plea, however: they say they ought not to have been made liable at all and some body else ought to have been made liable. We do not think they should be allowed to do this. If they had such a plea they should have raised it in the rent suit, see Siva Panda v. Jujusti Panda 25 M. 699.
2. In the case of Fateh Ali v. Gunga Nath Roy 8 C. 113 it was held that it was doubtful whether Sections 69 and 70 of the Contract Act are applied to a case of this kind as these Sections seem to contemplate cases in which the party-making the payment was not himself jointly-liable. No reference was, however, made in this case to the judgment of Mr. Justice Markby in Mathoora Nath Chuttopadhya v. Kristo Kumar Ghose 4 C. 369, where Section 69 was held applicable to a case in which the purchaser of one portion of a mortgaged property, who paid the whole mortgage-decree, was held entitled to contribution from the purchaser of another portion of the mortgaged property.
3. In the case of Maharaja Manindra Chunder Nunay v. Jawahir Kumari Bibi 9 C.W.N. 670 : 32 C. 643, it was said of Section 69 that 'it 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 by law to pay.' This case was, however, decided on the ground that the plaintiff purchased subject to the incumbrance which he paid off. So far, therefore, there does not seem to be any express decision against the application of Section 69 to the payment of a joint decree and on the other hand the decision in Mathoora Nath v. Kristo Kumar 4 C. 369 seems to favour the affirmative of the contention. There is no doubt that the wording of the section is open to the construction contended for by the learned Vakil for the appellants, but we do not think any hard and fast rule can be laid down excluding the operation of the section from a payment of a joint decree by one of the judgment-debtors. Every case must depend upon its own facts. In the present case the decree was by a fractional proprietor who could not by execution against the plaintiff alone imperil any interest other than that of the plaintiff, so that plaintiff cannot be said to have been interested in the payment of that part of the decree which was leviable from defendants Nos. 1 and 2 and cannot, therefore, recover under that section.
4. Coming to Section 70 of the Contract Act, the plaintiff would be entitled to recover if he has made the payment lawfully and not intending to do it gratuitously and the defendants have benefited by the payment. As to the benefit there is no doubt because the decree was binding upon the defendants and it was perfectly open to the decree-holder to attach either their person or their property in execution and the payment made by the plaintiff freed them from that liability. It can also be assumed that he did not make the payment out of a generous desire to free the defendants from the liability under the decree but with the hope of being re-imbursed. The only difficulty that we have felt is as to whether he has made the payment lawfully. It is clear that he did not make the payment unlawfully, I.E., in violation of any positivelaw or even tortiously with a view to secure any wrongful gain to himself or wrongful loss to the defendants. But that is not sufficient: he must do it lawfully. The word lawfully as here used has been judicially considered in several cases. In the case of Chedi Lal v. Bhagwan Das 11 A. 234 at p. 243, Mr. Justice Straight says; It (the legislature) had in contemplation cases in which a person held such a relation to another, as either directly to create, or by implication reasonably to justify, an inference that by some act done for another person the party doing the act was entitled to look, for compensation for it, to the person for whom it was done.' The payment in that case was made by persons expressly exempted from the decree except for costs and having at the time of the payment no sort of interest in the property saved and the payment was held to be voluntary. In the case of Damodar Mudaliar v. Secretary of State 18 M. 88 at p. 93, the learned Judges say: It is clear that actual consent or request on the part of the defendants need not be proved. It is because the party interested is absent and had given no mandate that the right of action accrues.' ' It is plain that the section ought not to be so read as to justify the officious interference of one man with the affairs or property of another, or to impose obligations in respect of services which the person sought to be charged did not wish to have rendered.' The Government in that case had repaired a tank which benefited the tenants of the defendants as well a' the tenants of the Government in the khas mahal without any request from defendants but without their disapproval: the action of the Government was held to be lawful. In the case of Gordhan Lal v. Durbar Shri Surajmalji 26 B. 504, the Durbar paid certain Government dues payable by the defendants although its interest was not at stake. Mr. Justice Fulton said: It cannot be said that the Darbar lawfully made payment for the Bhayatsf It has no authority from them and was under no legal obligation to pay.' In the case of Smith v. Dina Nath Mookerjee 12 C. 213, there were some observations indicating that the word lawfully was not an important factor in the section but the case was decided on other grounds. In the case of Raja Baikunto Nath Dey Bahadur v. Uday Chand Maiti 2 C.L.J. 311, the learned Judge approved of the construction of the word in Allahabad and Madras and seemed to think that an interest in making the payment should be a criterion for deciding whether the payment was lawful. In this case the plaintiff had an interest in paying because otherwise his person or property would be attached: he was under a legal obligation because the decree was a joint decree and it was optional with the decree-holder to realize it entirely from him: the defendants were equally liable and they did not object to the payment; in fact they took no interest in the suit and did not care who paid the decree: but they were benefited for the common burden was discharged by the payment. We think that under the circumstances of the case the payment was lawfully made. No fiction of an implied request is necessary under Section 70 and we think the plaintiff is entitled to a decree under that section. Even if they are benamdirs for others they know best who these others are and may have their remedy over against those for whose benefit they have lent their names. It is a recognized principle of equity that, where one of two innocent persons must suffer by the act of a third, he by whose negligence it happened must be the sufferer. The defendants Nos. 1 and 2 allowed their names to be used in the kobala and in the zemindari serishta and did not object when the zemindar brought a suit against them: they cannot be heard to complain if they are compelled to play out their part and reimburse the plaintiff for what he has done for them; See Umesh Chandra Banerjee v. Khulna Loan Company 34 C. 92.
5. In this view of the case, we have no hesitation in dismissing the appeal with costs.