Bepat Singh vs Sham Lal Sao

This is an appeal by the plaintiffs in a suit for contribution, the plaintiffs having been compelled by execution against their property to satisfy wholly a decree in favour of Saiyid Hasan and others, landlords, in respect of the rent accruing on a temporary tenure granted to Dipan Singh and Shamlal Sahu on 1st February 1913. The thica was for 11 years 1321 to 1331, at a rent of Rs. 375 of which Rs. 40 annually was set off against the initial deposit of Rs. 360 which was made by the lessees and the balance Rs. 335 a year was payable in cash. The landlord''s suit was instituted in 1919, claiming rent for four years 1323 to 1326, and he got a joint decree against Dipan Singh and Shamlal Sahu, and in execution thereof advertised for sale the properties belonging to the heirs of Dipan Singh, who had died in the meantime, and defendant 1. In the suit Shamlal had pleaded that he had no concern with the thica but this defence did not avail him. The present contribution suit was brought to recover from Shamlal Sahu and his relatives who are joint with him one-half of Rs. 1,737-9-6 paid on 28th March 1925 by the heirs of Dipan Singh in satisfaction of the decree towards which Shamlal and his relatives had paid nothing.

The defendants contended that though Shamlal''s name appeared in the lease be had nothing to do with the thica property. It was further contended that part of the decretal amount included costs of the appeal incurred by Dipan Singh only and for this the defendants cannot be liable, that the defendants other than Shamlal Sahu are not liable because they were not lessees or parties to the suit for rant and that the rate of interest was excessive.

The learned Munsif disallowed certain items, thereby reducing the claim to Rs. 830-14-13� dams; in other respects he allowed the claim of the plaintiffs.

The lower appellate Court has dismissed the whole suit with costs on a finding that the collection was ijmal and Dipan Singh alone was in charge of it. The lower Court observes that the plaintiffs'' ancestor being in possession of the thica property and having realized the usufruct of that property, they cannot claim anything on account of the amount paid in execution case unless they show that in so doing they had to pay the amount out of their own pocket which was not covered by the income of the thica property. The fact that there is a joint decree would not preclude the defendants from setting up the plea of nonliability.

In second appeal it is argued that the finding of fact arrived at by the Subordinate Judge does not support his decision; that when a rent decree had been passed jointly against Dipan and Shamlal, it was not open to Shamlal to plead that he was not liable to contribute. It seems incontestable that once a rent decree had been passed against both the lessees it was capable of execution against each or either of them and that the property of Shamlal could have been taken in execution and Shamlal benefited in being relieved of that liability when the decree was satisfied by Dipan''s heirs.

The authorities cited by the Subordinate Judge are not exactly in point and mostly date from before the passing of the Contract Act. The principles applicable to the case which is at present before us were laid down in Ajodhya Singh v. Jannoo Lal [1910] 6 I.C. 341, Prosunno Kumar Bose v. Jamaluddin Mahomed [1912] 15 I.C. 55 and Serafat Ali v. Issar Ali [1917] 45 Cal. 691. The decision in Swarnamoyee Debi v. Haridas Roy [1902] 6 C.W.N. 903 relied upon by the learned advocate on behalf of the respondents does not apply, inasmuch as that was a case where the defendant was kept out of possession of the property wrongfully by the plaintiff cosharer, whereas in the present case according to the, finding of the Court below Dipan Singh, the plaintiffs'' ancestor, was in charge of the property under an arrangement between him and Shamlal and the collection Was ijmal. The plaintiffs have a right to contribution in respect of the amount payable by the defendants under the landlord''s decree both u/s 69 as well as Section 70, Contract Act.

In our opinion the defence cannot defeat the plaintiffs'' claim unless it is shown affirmatively that there was money in the hand of Dipan or his heirs, the plaintiffs, on account of the thica property sufficient to satisfy the decree. The Subordinate Judge is wrong in laying it on Dipan''s heirs to prove that they had to pay out of their own pocket the amount which was not covered by the income of the thica property in their hands. The remedy of Shamlal and his family was in a suit for accounts against Dipan.

In the result the decision of the Subordinate Judge must be set aside and that of the Munsif restored so far as it refers to Issue 1 of the original suit.

On issue 2, as to the amount of interest the Munsif held that 24 per cent claimed by the plaintiffs was not excessive. The Subordinate Judge held that if he had decreed the suit he would have allowed interest at not more than 12 per cent as being the commercial rate of interest. No argument has been addressed to us against the finding of the Subordinate Judge.

Issue 3 was whether the minor defendants are liable and on this issue the Subordinate Judge held that defendants 3 to 5 were liable along with defendant 1 but only to the extent of their share in the joint family property and that defendant 2, Rangi Sahu was not liable. This finding has not been attacked in second appeal and is therefore affirmed.

The result is that the appeal is allowed in part, the decision of the lower appellate Court reversed and the suit decreed modifiedly in accordance with the findings. The interest will be at 12 per cent per annum up to the date of the suit and thereafter at 6 per cent per annum up to the date of realization.

The plaintiffs will get their costs proportionate to the amount of the claim decreed.