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Judgment
Srinivasa Ayyangar, J.—Two points are raised in this appeal, first as to the liability of the sixth Defendant, second as to the amount
recoverable from the first Defendant, the registered holder.
So far as the sixth Defendant is concerned it is clear that the Plaintiff cannot recover anything personally from him as he was under no personal
obligation to pay the proportionate revenue to the Government. It is now settled that the only person who is personally bound to pay the revenue
to Government is the registered holder, who is called the defaulter in the Revenue Recovery Act, and that co-owners or co-sharers who are not
also registered holders are not under any such obligation, though the Government revenue may be a charge on the lands in their holding-
Subramania Chetti v. Mahalingasami Sivan ILR (1910) Mad. 41. Payment of the revenue by the Plaintiff could not give him a larger or higher right
than what the Government had. See Ghose on Mortgages, page 371, and Freeman on Co-tenancy, pages 254 and 349. On this principle this
Court has held in Paruykyi v. Pakram Haji (1912) 15 I.C. 262 and Narain Pai v. Appu (1915) 28 I.C. 456, that a person who pays the whole
revenue to the Government under circumstances similar to the present case is not entitled to a personal decree against the co-owners or co-sharers
who were not under a personal obligation to pay to the Government. The observations of Bhashyam Ayyangar, J., in Raja. of Vizianagram v. Raja
Setrucherla Somasekhararaz ILR (1903) Mad.. 708 at p. 813, were based on the assumption that all the co-owners or co-sharers were liable
personally to pay to the Government. Nor do we think that Section 70 of the Contract Act has any application to the present case. Gajapathi
Kistna Chendra Deo v. Srinivasa Charlu (1914) 25 M.L.J. 433, on which Mr. Sarma relied has not been followed in Raja of Pitiapuram v.
Secretary of State (1914) 16 M.L.T. 375. in which all the previous cases were reviewed by Spencer, J., and this case was followed in Narain Pai
v. Appu (1915) 28 I.C. 456. by Sadasiva Ayyar, J., who was himself a party to the decision in Gajapathi Kistna Chendra Deo v. Srinivasa Charlu
(1914) 25 M.L.J. 433. Yogambal Boyee Ammani Ammal v. Naina Pillai Markayar ILR (1910) Mad. 15. is also to the same effect. If the sixth
Defendant had been personally liable to pay, the Subordinate Judge''s Court of Vizagapatam would have jurisdiction to pass a money decree,
though the sixth Defendant was residing in the Agency tracts, as the cause of action arose at least in part within the jurisdiction of the Vizagapatam
Subordinate Judge''s Court; but that Court has no jurisdiction to enforce a charge over the portion of the estate purchased by the sixth Defendant
as it is situated in the Agency tracts, and the Plaintiff must be left to enforce his charge in the Agency Courts. We therefore confirm the decree of
the lower Court as regards the sixth Defendant.
The next question which alone admits of any doubt is the amount, which the Plaintiff is entitled to recover from the first Defendant, the registered
holder. The Plaintiff, the first Defendant and the sixth Defendant are each in possession of portions of the estate. The Government revenue paid by
the Plaintiff accrued due after the purchase by the Plaintiff and the sixth Defendant of portions of the property in execution of a mortgage decree. If
it was a case of a private sale u/s 56 of the Transfer of Property Act, the Plaintiff and the sixth Defendant would each be bound to pay the
proportionate share of the Government revenue due on the lands in their possession the fact that the purchase was made in a Court-sale does not
make any difference. The position therefore is this: There was a charge on the whole estate in favour of the Government, and the registered holder,
the first ""Defendant, was also personally liable to pay the amount of the charge to the Government. (We are assuming that the statutory liability of
the registered holder is a personal liability.) The case is analogous to that of a mortgagor who had covenanted to pay the mortgage money and who
afterwards sells portions of the mortgaged property to several persons subject to the mortgage. As between the mortgagor and his vendees, the
mortgagor would be liable in proportion to the value of the property in his bands, while his vendees would be liable in proportion to the value of the
property in their bands. This of course would not affect the right of the mortgagee to enforce the personal covenant against the mortgagor or the
charge against any portion of the mortgaged property If in such a case the whole amount is collected from the mortgagor on his personal liability or
by the sale of the property in the hands of any one of the owners, the person who so paid the money or out of whose property the mortgage
amount was realized would be entitled to contribution from the property of the other owners u/s 82 of the Transfer of Property Act. The
mortgaged property is considered the primary fund for payment of the mortgage debt: Jones on Mortgages, Sections 736 and 740; also see
Palmer v. Hendrie (1859) 27 Beavan 349. If therefore the present Plaintiff had asked for contribution out of the properties, he could not have
recovered more than the amount payable by the first Defendant, in proportion to the value of the property in his hands. For example if the Plaintiff
was the purchaser of one-third share, sixth Defendant another one-third, the first Defendant remaining in possession of the other third, whoever
paid the whole of the charge, whether Plaintiff or the sixth Defendant or the first Defendant, would be entitled to recover one-third from each of the
remaining two as a charge on the property. Does the fact that the Plaintiff sues u/s 69 of the Contract Act to recover the money personally from the
registered holder make any difference as regards the amount claimable from him ? Reading the terms of Section 69 literally, in the case supposed,
the Plaintiff, it may be contended, would be entitled to recover the whole amount and not merely two-thirds or one-third personally from the
registered holder, for the first Defendant was the person who in law was bound to pay the revenue ; the Plaintiff of course was interested in the
payment, i.e., he was not a volunteer. That, I think, would be manifestly absurd, for the property in the hands of the Plaintiff is itself liable to pay
one-third of the Government revenue, and it is this liability on his part that gives him a right to make the payment at all to the Government, so as to
enable him to recover back from the co-owners the share of the revenue which they personally were bound to pay or for which the property in
their hands was liable. A simple illustration will make this matter clear. A mortgages certain lands to B and sells the property subject to the
mortgage to C. Supposing B sues C on the mortgage, and C to save the property pays the mortgagee; could C recover the money from A, he
being the person who under law was bound to pay within the meaning of Section 69 ? clearly not; for as between A and C, C is the person who is
bound to discharge the debt, though so far as B, the mortgagee, is concerned there is no novation of the liability of A ; the position of A in such
cases is said to be analogous to that of a surety, O being the principal debtor. It is the ultimate liability that determines the right to recover the
amount paid to discharge the original liability. It is possible to coutend in the case above said that C is entitled to recover from A personally the
amount of the mortgage debt, but that A in his turn would be entitled to a charge upon the mortgaged property for the sum which he paid to C and
recover as much as he can from the mortgaged property, which amount may conoeivably be less than the amount which he paid; this would be
untenable, because the purchaser of the property subject to the mortgage would then be entitled indirectly to recover back the amount paid by him
for the sale of the equity of redemption. To put the converse case, if A had been sued by the mortgagee personally and had been obliged to pay B,
he certainly would be entitled to call on C to pay back the money which he paid. In an English conveyance on sale of the equity of redemption a
covenant would be implied on the part of the vendee to indemnify the vendor from all the consequences of non-payment of the mortgage amount
by the vendee. Under the Transfer of Property Act, Section 55, though there is no implied covenant of indemnity the same result would follow as
the statute makes it obligatory on the part of the vendee to discharge the mortgage as between him and his vendor though the liability of the vendor
mortgagor to his mortgagee is not affected. It is clear therefore that the person who is interested in the payment mentioned in Section 69 must be a
person who as between himself and the Defendant was not bound to pay though the Defendant may be under an. obligation to pay to a third party.
See Mangalathammal v. Narayanaswami Aiyar (1907) 17 M.L.J. 250 and Manindra Chandra Nandy v. Jamahir Kumari (1905) ILR 32 Cal 643.
Whether the basis of Section 69 is the Common Law action of "" money paid at the Defendant''s request"" or the equitable doctrine of subrogation
does not much matter as the Plaintiff can in either case recover only from the person ultimately liable. See Maule v. Garrett (1872) L.R. 7 Ex. 101
at p. 104. per Cockburn, C.J., citing Leake, page 45, sixth edition Sheldon on Subrogation, page 15, Section 11. In this case, if the Plaintiff and
the first Defendant were the only two persons who had an interest in the property, and if the Plaintiff had paid the whole of the Government
revenue he could not have recovered more than the share payable on account of the property in the hands of the Defendant. Is the Plaintiff also
entitled to recover from the first Defendant the proportionate share of the revenue payable on account of the properties in the hands of sixth
Defendant, because the Plaintiff is not the person liable to pay that sum? If the Plaintiff is allowed to recover from the first Defendant the amount
payable both on account of the properties in his hands and in the hands of the sixth Defendant, unless the first Defendant is in his turn subrogated to
the rights of the Plaintiff (which is more than doubtful), the first Defendant would have been compelled to pay the amount really payable by the sixth
Defendant ; that, I think, would be unfair. The present suit is a suit for contribution and it was of course necessary to make all persons who are
liable to contribute, whether personally or out of their properties, parties, in order to fix the proportionate amount which each person was ultimately
bound to pay. If Section 69 applies to a suit for contribution it may be that no effective relief could be given against all the parties so as to dispose
of all matters in controversy and avoid multiplicity of suits. In Futteh Ali v. Gunganath Roy ILR (1882) Cal 113, it was doubted whether a suit for
contribution comes within the scope of Section 69.
The person interested in the payment of money"" must, we think, be a person who is not himself bound to pay the whole or any portion of the
amount. It is to be noted that there are express provisions in the Contract Act for contribution in the cases of joint promisors and co-sureties.
(Section 43, Clause 2, and Sections 146 and 147.) We are therefore inclined to hold that Section 69 does not apply to a suit for contribution at all.
The result is the appeal is dismissed with costs.
Wallis, C.J.
I agree.