AI Structured Summary
Not yet generated for this judgment
Judgment
Bhashyam Aiyangar, J.—The Permanently Settled estate of Merangi in the district of Vizagapatam was registered in the Collector''s office in
the name of one Jagannatha Raz as its sole proprietor. A suit was brought for its partition by three of his co-parceners, including the present
defendant, which was unsuccessfully resisted by Jagannatha Raz on the ground that it was an impartible estate. Both the Indian Courts and finally
the Judicial Committee of the Privy Council by its decree in 1891, Sri Raja Satmcharla Jagannadha Razu v. Sri Raja Satrucharla Ramabhadra
Razu I.L.R.R. 14 M. 237 held that the estate was partible and directed its partition into four equal shares.
On the 23rd October 1893, the late Maharajah of Viziana-garam, the testator under whom the plaintiff claims, purchased from Jagannatha Raz
his undivided one-fourth share in the estate which purchase became absolute in the events that followed. There was no delivery of possession to
the purchaser and on the 5th May 1894, the Collector in execution of the decree of the Privy Council effected a partition of Merangi, dividing it
into four estates each separately assessed and registered, and the estate of Chinna Merangi was allotted to Jagannatha Raz''s share which as
aforesaid, had been sold to the late Maharajah of Vizianagaram. Out of the purchase money the vendee paid revenue due to Government up to the
end of October 18,93 in respect of the entire estate which prior to the partition was in the sole possession of Jagannatha Raz. For subsequent
arrears of revenue upon the entire estate until the date of partition, viz., the 5th May 1894, the Collector on 5th September 1894 attached the
estate of Chinna Merangi only, which at that time was in the possession of jagannatha Raz, the other three shares having been on the 5th May
1894 delivered respectively to the plaintiffs in the partition suit. The arrears amounting to Rs. 13 273-2-5 for which the attachment was made
having accrued upon the whole estate before it was divided and separately registered, it was competent to the Collector to realize such arrears by
attachment of the whole or any portion of the estate and he selected Chinna Merangi which had fallen to the share of Jagannatha Raz Probably
because he thought it was equitable to do so as Jagannatha Raz continued in possession of the whole estate until the date of partition. Instead of
bringing Chinna Merangi to sale, the Collector under the provisions of the Madras Revenue Recovery Act (II of 1864) realized the arrears from
the current income by continuing in the management of the etstate until the 19th January 1898, when the same was delivered to the plaintiff in
execution of the decree in O.S. No. 34 of 1894 which had been brought by the late Maharajah of Vizianagaram against Jagannatha Raz and his
sons to enforce the sale deed of 1893 by recovering possession of Chinna Merangi, which in the partition of May 1894 had fallen to the share of
Jagannatha Raz, the vendor.
The present suit was brought on the 19th December 1899 to recover from the defendant by way of contribution the sum of Rs. 4,284-6-10,
being his one-fourth share of the arrears which had been realized from the income of Chinna Merangi alone and the plaintiff seeks to recover the
said amount beth personally from the defendant and by enforcing ft as a charge upon the defendant''s share in the estate.
The defendant pleaded inter alia that the suit was barred by limitation under Article 99 of the second schedule to Act XV of 1877 and also by
Section 43 of the CPC and that the plaintiff acquired no charge upon defendant''s share in the estate.
The District Judge dismissed the plaintiff''s suit on the ground that the defendant''s plea of limitation was well founded as, in his opinion, it was
established by Exhibit C that the whole of the arrears for which Chinna Merangi had been attached, was realized before November 1896. He did
not specially consider the question as to whether the plaintiff has a charge upon the share of the defendant, evidently because in his opinion Article
99 would be applicable, not only to the enforcement of the personal obligation, but also to the enforcement of the charge, if any.
The question of limitation alone has been argued before us and the points chiefly relied upon in support of the appeal are:
(i) that the plaintiff has by law a charge ;
(ii) that, if so, in so far as the plaintiff seeks to recover the amount claimed by enforcing the charge, the suit is governed by Article 132 and not by
Article 99 or any other article ;
(iii) that even if it should be held that the plaintiff has no charge in so far as the plaintiff seeks to recover the amount personally from the defendant,
the suit is governed by Article 120 and not by Article 99;
(iv) that even if Article 99 were applicable, the suit is not barred either in whole or in part, inasmuch as it is clear from Exhibits D and E that a
portion of the arrears in question consisting of two items on account of interest, viz., Rs. 364-1-3 and Rs. 781-10-3 were credited to Government
from the income of Chinna Merangi on the 11th January 1895, which is within three years of the date of the suit.
It is impossible to decide the preliminary question of limitation without determining the plaintiff''s right to claim contribution from the defendant,
which forms the subject of the 5th issue, on which the Judge has recorded no finding. If there had been no sale by Jagannatha Raz of his share and
the present suit had been brought by Jagannatha Raz himself, it is clear that he could not have maintained it. A co-sharer who is in possession of
the entire estate and pays the Revenue due to Government upon the estate cannot claim contribution from his co-sharers unless the income derived
by him from the estate falls short of the amount of revenue paid to Goverment Dakhina Mohan Roy v. Sarada Mohan Roy ILR 21 C. 142 and in
any event he can maintain no such suit if he holds and enjoys the entire estate as sole owner of the property to the wrongful exclusion of his co-
sharers Achut Ramachandra Pat v. Hari Kamti ILR 11 B. 313 Though the plaintiff claims a fourth of the estate under Jagannatha Raz he cannot be
regarded as bringing this suit as the representative in interest of Jagannatha Raz. He became the owner of the one-fourth share on the 23rd
October 1893, and the arrears of revenue on the entire estate which was realised by Government from the plaintiff''s share only accrued due
between the 30th October and the 5th May 1894, when the four shares were divided and separately assessed. During this intervening period the
plaintiff, the defendant and two other co-sharers were co-owners or tenants in common of the estate ; the estate, however, was not in the
possession of any of them ; but continued in the exclusive possession of Jagannatha Raz who, in spite of the terms of the sale deed, did not put the
late Maharajah of Vizianagaram into possession of certain specified villages, which, until partition of the estates should be effected by the Collector,
was to be enjoyed by the vendee in lieu of the undivided one-fourth share conveyed to him by Jagannatha Raz. Jagannatha Raz having thus been in
possession of the whole estate until the 5th May, he ought to have paid the arrears of revenue in question from the income of the estate or have
otherwise accounted for the income to the four co-sharers.
The arrear of revenue was a charge upon the entire estate and as between the plaintiff, the defendant and the two other shares the charge as a
burden upon the estate had to be borne equally without prejudice, however, to the right of each co-sharer to hold Jagannatha Raz accountable to
him for the mesne profits of his share during the said period. If the Collector had realized the whole amount of the arrears of revenue from the share
of the defendant instead of from that of the plaintiff, it is clear that the latter could not successfully resist the defendant''s claim for contribution and,
if so, it follows that the plaintiff from whose share alone the arrear was realized by the Collector, is equally entitled to claim contribution from the
defendant since the plaintiff is not responsible for the wrongful act of Jagannatha Raz in excluding his co-sharers from possession and making
default in the payment of revenue due to Government and also because, as already stated, the plaintiff cannot be regarded as bringing this suit as
the representative in interest of Jagannatha Raz.
Whether the plaintiff is equitably estopped from claiming contribution for all or any of the reasons mentioned in paragraphs 5 and 7 of the written
statement, forms the subject-matter of the sixth issue, and the Judge has recorded not finding on this issue.
The plea that the suit is barred by Section 43 of the CPC by reason of the plaintiff not having joined this defendant as a party defendant in O.S.
No. 34 of 1894 and included this claim also therein, is manifestly untenable See Judgment in Gangi v. Ramasami 12 M.L.J.R. 103 : S.A. No. 961
of 1900.
The claim for contribution generally arises in cases where the party seeking contribution has himself paid the amount in respect of which
contribution is sought. In the present case, however, the arrear of revenue was not paid to Government by the plaintiff with his own hand but was
realized by the Collector under the Revenue Recovery Act from the income of plaintiff''s share after it was registered as a separate estate. In my
opinion this makes no difference, either in regard to the plaintiff''s right to claim contribution or even as to the application of Article 99 or 61 of the
second schedule to Act XV of 1877, in both of which the person bringing the suit is referred to as having ''paid'' the amount sought to be
recovered. Bearing in mind that in cases in which the right to contribution exists under law the principle on which it rests is that ""both in law and
equity contribution is bottomed and fixed on general principles of justice and does not spring from contract and the reason given in the books is in
equaliture (the law requires equality). One shall not bear the burden in case of the rest"" per Lord C.B. Eyre in Swain v. Wall 1 Ch. Rep. 149 See
also Derring v. Earl of Winchelsea ILR 41 also per Lord Redesdale in Sterling v. Forester 3 Bligh 590 and that the claim has its foundation in the
clearest principles of natural justice, for as all are equally bound and are equally relieved, it seems but just that in such a case all should contribute in
proportion towards a benefit obtained by all, upon the maxim Quisentil commodum sentire debit et onus Story''s Equity Jurisprudence, Section
It is perfectly immaterial whether the party seeking contribution made the payment voluntarily or involuntarily, i.e., whether he made the
payment and thus averted any coercive process against his property or without making such payment suffered his property to be seized under
process of law for the purpose of the amount being realised from its income or by its sale. In either case, he has been damnified to the extent to
which the payment made by him as the amount realised from his property exceeds his share of the liability, as between him and the party or parties
from whom he seeks contribution and the latter have been to that extent benefited. I am glad to be fortified in this opinion by the judgment of
Pollock, C.B. in Radgers v. Maw 15 M. & W. 444. In that case the plaintiff and the defendant were partners and they dissolved the partnership,
the plaintiff agreeing to take all the debts of the firm upon himself and to release the defendant from liability and the defendant giving him a bond for
a certain sum payable by instalments. The plaintiff failed to pay a debt due from the firm, whereupon the creditors sued the defendant and obtained
judgment and issued a ft. fa. under which the sheriff seized and sold the defendant''s goods, and out of the proceeds paid the debt. In an action by
the plaintiff upon the defendant''s bond, it was held that the defendant was entitled to set off as money paid the sum so paid by the sheriff. Pollock,
C.B. in distinguishing the case from Moore v. Pyrke 11 East 53 observed as follows: ''''The present case is not precisely the same. Here the
defendant''s goods were taken not under a distress but under a writ of ft. fa, which directs the sheriff to make of the defendant''s goods in that
action ''so much money'' and the sheriff has so done; he has made money of the defendant''s goods and therewith has paid the claim in the action.
We cannot see upon what principle a man may not set off money paid by the produce of his goods as well as money paid indirectly without any
sale of his goods."" In my opinion the word'' ''paid'' occurring in Articles 61 and 99 of Act XV of 1877 will, without any undue stretching, include
payments made or derived either out of the sale proceeds or income of the property of the person seeking contribution, just as u/s 20 of the
Limitation Act, the receipt by a mortgagee of the produce of land mortgaged to him is a payment made to him by the debtor for the purpose of that
section. The learned pleader for the appellant relied on the case of Fuckaruddeen v. Mohima Chunder ILR 4 C. 529 and Pattabhiramayya v.
Ramayya ILR M. 23 in support of his argument that neither Article 61 nor Article 99 was applicable to this case, and that therefore the suit is
governed by Article 120 in so far as the personal remedy sought is concerned. In the former case, in execution of a joint decree for money against
the plaintiff and defendant, the decree-holder attached the plaintiff''s property alone and realised the decree amount by sale of the property. The
plaintiff''s suit for contribution was resisted on the ground that it was barred by Article 100 of Act IX of 1871, corresponding to Article 99 of Act
XV of 1877. Mitter, J., dealt with this plea as follows: ""The date from which limitation begins to run is three years from the date of the plaintiff''s
advance in excess of his own share. In the present case nothing was paid by the plaintiff. Therefore, it is a question whether that article or Article
118(corresponding to 120 of Act XV of 1877) applies to this case****. However, without expressing any decided opinion on this point, and
assuming that Article 100 applies, we think that the plaintiff was not bound absolutely by the statement made in his plaint that this cause of action
arose on the date of the auction sale. Upon the facts stated in the plaint it is clear that the cause of action in the present suit arose when the sale
proceeds were taken out of court by the decree-holder. We think, therefore, that the lower Courts are not right in holding that the plaintiff''s claim
is barred, without ascertaining the date when the sale proceeds were paid to (he decree-holder* * * *. The decree of the lower Courts must be
set aside and the case remanded to the Court of first instance for trial."" Notwithstanding the expression of a doubt in this judgment as to the
applicability of Article 99 of Act XV of 1877, to a case in which the amount in respect of which contribution is sought was realized by attachment
and sale of the property of the person seeking contribution, the case was decided and remanded on the footing that that article governed the case.
In the latter case 2 there was a decree for rent amounting to Rs. 4,000 and odd against a number of the tenants jointly, hut the decree was
executed against one of them alone by attaching his property and realising Rs. 2,650 by sale thereof. The share payable by the plaintiff was only
Rs. 183, he sued the co-tenants for contribution and they pleaded limitation. It was held on second appeal that Article 99 was inapplicable
because the whole of the amount due under the joint decree was not realized from the plaintiff but only a portion thereof, though such portion was
far in excess of his share of the liability. The learned judges who decided that case, expressed their concurrence in the view taken by the Calcutta
High Court that the three years'' period of limitation under Article 61 should be reckoned not from the date of the sale, but from the date when the
sale proceeds were drawn by the decree-holder from court. As to the applicability of Article 61 they expressed their doubt in the following terms:
it may be doubted whether Article 61 is applicable to the present case where there was no payment by plaintiffs, but where their property was
seized and sold by the court and the proceeds paid by the court to the decree-holder."" However, as the sale proceeds had been drawn within
three years from the date of the suit, and if Article 61 were inapplicable to the case, Article 120 which prescribes a period of six years would
govern the case, the suit would be in time under either article, and it, therefore, became unnecessary to decide whether or not Article 61 could be
applied. I am unable to share in the doubt expressed in the above two cases as to the applicability of Article 99 or 61 as the case may be to a case
in which the amount was realized by sequestration or sale of the property of the person seeking contribution, and I cannot accede to the contention
that assuming that the plaintiff has no charge upon the defendant''s share of the estate, the article applicable to the case is Article 120 and not 61 or
99.
I shall now proceed to consider whether the plaintiff has such a charge and, if so, whether in so far as he seeks to enforce the charge the article
applicable is Article 132, or whether, as contended on behalf of the respondent, the enforcement of the claim both personally against the defendant
and against the property charged with the claim is governed by the three years'' rule of limitation prescribed by Article 61 or 99 as the case may
be.
The question of charge was mainly argued on both sides with reference to the decisions of the Indian High Courts reported in Seshagiri v.
Pichu ILR 11 M. 452 Achut Ramchandra Pai v. Hari Kamti ILR 11 B. 318 Kinu Ram Das v. Mozaffer Hoosain Shaha ILR 14 C. 809 and Seth
Chitor Mal v. Shib Lal ILR 14 A. 273 and the English cases of Leslie v. French L.R. 23 Ch. Div. 564. Falke v. Scot. Imp. Insurance Co. 34
Ch.D. 234 and Strutt v. Tippett 62 L.T.Rep.N.S.475 and Section 35 of the Madras Revenue Recovery Act II of 1864 as amended by Madras
Act I of 1897.
The statutory charge recognized or created by Section 35 of Act II of 1864 is inapplicable to the case, at any rate for the reasons that it gives
a charge only over the land "" which has been or is about to be attached "" and which is released or saved therefrom by payment made by the party
seeking to be reimbursed either in whole or by way of contribution, while in the present case, it was not the defendant''s land, over which the
charge is now claimed, that was or was about to be attached, but the land of the plaintiff himself, and that after it had been separated.
The question, therefore, which was chiefly argued was, whether apart from the provisions of Section 35 of the Revenue Recovery Act, the
plaintiff has under the general principles of law, charge over the defendant''s share by reason that it was equally liable with the plaintiff''s share to
pay the arrear of revenue which accrued due to Government between 31st October 1893 and 5th May 1894.
The principle of law applicable to the case was fully discussed by a Full Bench of the Calcutta High Court in Kinu Ram Das v. Mozaffar
Husain Shaha ILR 14 C. 809 and it was held by a majority of three judges against two that a co-sharer who has paid the whole revenue and thus
saved the estate, does not by reason of such payment acquire a charge on the share of his defaulting co-sharer. In that case the decision of the
same Court in Syed Enayet Hossein v. Muddeen Mooner Shahoon 14 B.L.R. 155 which recognised such charge on the authority of a dictum of
the Privy Council in Nugendrachunder v. Kaminee Dossee 11 M.I.A. 258 was overruled and the dictum of the Privy Council was explained and
distinguished.
The same question had already come under the consideration of the Bombay High Court in Achuta Bamachendra v. Hari ILR 11 B. 318 and
following the decision in 14 B.L.R. 155 the dictum of a Privy Council in Nugendrachunder v. Kaminee Dossee 11 M.I.A. 258 and some other
Calcutta cases, Ram Dutt Singh v. Horakh Narain Singh ILR 6 C. 549 Nobin Chunder Roy v. Rup Lall Doss ILR 1 C. 377 in spite of the doubt
expressed in Kristo Mohinee Dossee v. Kali-prosonno Ghose ILR 8 C. 402 it was there held that payment of assessment by a part owner is a
payment made by a person entitled to pay it who does so under circumstances which make it necessary in order to save the estate for himself and
co-owners, and "" in either view of such payment, he becomes equitably entitled to a charge on the whole estate as against the other co-sharers,
and if this be so, the mere circumstance that he has no existing charge on their shares at the time of such payment would appear to be no sufficient
reason in equity, justice and good conscience for not allowing him to realize the payment from the shares of his co-owners for their respective
quotas."" The suit, however, was dismissed as upon the facts it was held that the plaintiff was not entitled to contribution.
In Seshagiri v. Pichu ILR 11 M. 452 the revenue due on certain lands comprised in a ryotwari patta fell into arrears, and subsequently thereto
the plaintiff and defendant No. 4 each bought a portion of the lands. After this the portion in the plaintff''s possession was alone attached for the
arrears and he paid the whole amount to prevent a sale and sued to recover the proportionate share of revenue in respect of the portion purchased
by the 4th defendant claiming payment of the same as a charge upon such portion. It was held, following the decision of the minority in Kinu Ram
Das v. Mozaffar Hussain ILR 14 C. 809, and dissenting from the view of the majority that the plaintiffs was entitled to a decree for contribution
against defendant No. 4 and to a charge on the lands in his possession.
The question was also subsequently considered by a Full Bench of the Allahabad High Court in Seth Chitor Mal v. Shib Lal I.L.R., 14 A. 273,
in which the majority (Mohmood, J. dissenting) concurred in the Full Bench decision of the Calcutta High Court. Both in the Calcutta and
Allahabad decisions the provisions of the various enactments in force in those provinces relating to the recovery of arrears of revenue which are
much more complicated than the corresponding enactments in force in this Presidency, were critically examined and the English law also fully
discussed.
So far at any rate as this Presidency is concerned, in determining the question now under consideration, I attach no Value to the circumstance
that Section 35 of the Madras Revenue Recovery Act creates a charge only in favour of a bona fide mortgagee or other incumbrancer or any
person not being in possession of the estate, but bona fide claiming an interest therein adverse to the defaulter, but that no similar provision is made
in favour of a co-sharer. Nor am I convinced by the reasoning of Wilson, J., in Kinu Ram Das v. Mozaffar Hussain or of Edge, C. J,, in Seih
Chitor Mal. v. Shib Lal, that it would be contrary to the policy of legislative enactments in those provinces to recognise an equitable charge in
favour of a co-sharer, even if such charge should exist under general principles of law. The maxi m '' expressio unius est exclusio alterius'' is wholly
inapplicable in dealing with questions of this kind with reference to special or local enactments not professing to be a codification of any particular
branch of law. On this point I cannot do better than quote the following passage from Maxwell''s Interpretation of Statutes (3rd edition at pp. 437-
-39), which is fully supported by common sense and the authorities therein referred to: ""Provisions sometimes found in statutes enacting imperfectly
or for particular cases only that which was already and more widely the law, have occasionally furnished ground for the contention that an intention
to alter the general law was to be inferred from the partial or limited enactment ; resting on the maxim, expressio unius est exclusio alterius. But the
maxim is inapplicable in such cases. The only inference which a court can draw from such superfluous provisions (which generally find a place in
Acts to meet unfounded objections and idle doubts) is that the Legislature was either ignorant or unmindful of the real state of the law, or that it
acted under the influence of excessive caution ; and if the law be different from what the Legislature supposed it to be, the implication arising from
the statute, it has been said, cannot operate as a negation of its existence, and any legislation founded on such a mistake has not the effect of
making that law which the Legislature erroneously assumed to be so. Thus, when in contending that debts due by corporate bodies were subject to
foreign attachment in the Mayor''s Court, the express statutory exemptions of the East India Company and of the Bank of England were relied
upon has supplying the inference that corporate bodies, were deemed by the Legislature to be subject to that process, the judicial answer was that
it was more reasonable to hold that the two great corporations prevailed on Parliament to prevent all question as to themselves by direct
enactment, than to hold that Parliament by such special enactment meant to determine the question in all other cases adversely to corporations. A
Local Act which, in imposing wharfage dues for the maintenance of a harbour on certain articles, expressly exempted the Crown from liability in
respect of coals imported for the use of royal packets ; and the provisions in turnpike Acts which exempted from toll carriages and horses
attending the queen, as going or returning from such attendance were not suffered to affect the more extensive exemptions which the Crown enjoys
by virtue of its prerogative. The will of the Legislature as expressed in a statute is of course supreme and to the extent to which rights have been
created as declared by a statute they must take effect whether the same be consistent or inconsistent with the common law of the land or with
notions of justice, equity and good conscience and in either case, whether the Legislature was aware or was ignorant of the common or equity law.
An instance is afforded by Section 35 of Madras Act II of 1864, which gives a charge in favour of the mortgagee of the land for payment of
revenue made by him which charge, however, is to take priority over other charges, only according to the date at which such payment was made,
though under general law such payment will take priority according to the date of his mortgage. The Legislature has thus though probably
unconsciously and apparently in ignorance of his rights under the general law deprived him of the priority which he would otherwise have had.
As far as there is any indication by the Legislature of its policy, if any, in the matter, I may refer to Section 31, Clause (4) of Madras Act IV of
1897 which runs as follows: ""A co-owner or a person who in good faith deems himself to be owner or co-owner making such payment shall
acquire a charge on such estate Government land for the amount so paid by him with interest thereon at the rate of 9 per cent. per annum ;
provided that in the case of a co-owner such charge shall extend only to so much of the amount paid as is due in respect of the shares of the other
co-owners in such estate or Government land."" The payment here referred to is payment of public revenue on account of expenses of survey and
demarcation. And if in determining whether or not it is just and equitable that a co-owner should have such a charge in the metter of the payment of
public revenue, it is legitimate to import the element of public policy, I may add that the existence of such a charge in favour of a co-owner will, by
giving him greater security for the realization of the contribution due to him from the defaulting co-owner, indirectly strengthen the security which the
Crown possesses under the law for collection of land revenue.
The question having been fully discussed pro and con in the leading Indian cases above referred to, I am relieved from the necessity of
travelling over more or less the same ground and shall content myself with stating my own reasons for adopt- ing the conclusion arrived at in the
Madras and Bombay cases and by the dissenting Judges in the Calcutta and Allahabad Full Bench cases in so far as such conclusion involves the
proposition which is all that arises in the present case that where one of two or more co-sharers in a revenue-paying estate pays the whole revenue
in order to save and so does save the estate, he is entitled to a charge upon the share of each of his co-sharers to the extent of the latter''s share of
the revenue.
The true principle applicable to the case has been well pointed out by Kernon, J. in the following terms in Seshagiri v. Pichu ILR 11 M. 452
The lands of defendant No. 4 and of the plaintiff are both liable to a common burden, neither of them can get his land free from the claim for the
revenue without paying the amount due on the whole lands. It would be against equity and good conscience that the common burden should be
thrown exclusively on either lot of land or on either of the parties. 1 wish to add that Harbert''s case is an authority that in case of persons liable to
payment of a common burden affecting their lands the lands of one alone shall not be liable. In that case it is said ''when two or more are bound on
a recognisance or statute, each is bound in the whole, yet the land of one only shall not be extended.'' Further it is said ''so it appears by those
cases that when land shall be charged by any lien the charge ought to be equal and one alone should not bear all the burden, and the law on this
point is grounded in great equity.'' u/s 2 of Madras Act II of 1864, it is expressly declared that ''the land, the buildings upon it and its products shall
be regarded as the security for the public revenue'' due on the land and taking that along with Section 42, it is clear that public revenue forms the
first charge upon the land, i, e., upon the whole and every portion of the estate.
From the Full Bench decisions of the Calcutta and Allahabad High Courts I gather that there are sections corresponding to Section 42 in the
Revenue Law in force in those provinces, but whether there is an express section corresponding to Section 2 of the Madras Act, I am not aware.
It appears to me that sufficient attention was not paid in those cases to the fact that the amount in respect of which contribution was sought by one
co-owner against another, formed by law a charge upon the lands belonging to the co-owners. This element, in my opinion, materially simplifies he
determination of the question and distinguishes the case from the decision of a single Judge reported in Thanikachella v. Shudachella ILR 15 M.
In this latter case one of two joint farmers of a mittah paid the whole of the rent due to the mittahdar and brought a suit for contribution
against the co-farmer, and it was held that by reason of such payment he acquired no charge upon the share of the co-farmer in the leasehold and
the suit was therefore barred by limitation having been brought more than three years after the date of payment Mr. Justice Parker distinguished it
from Seshagiri v. Pichu 1 L.R. 11 M. 452 really on the ground that the amount in respect of which con tribution was sought was not public revenue
under the Revenue Recovery Act but only rent under Madras Act VIII of 1865 Under the law in force in this Presidency rent due to a proprietor
unlike revenue due to Government forms no charge upon the holding, According to the view taken in the Calcutta and Allahabad Full Bench cases
by the dissentient fudges even in such a case the party seeking contribution would have a charge on the principle of salvage. It is, however,
unnecessary to consider in this case whether such view is sound or not. The learned Chief Justice in the Allahabad case concludes his judgment as
follows;�(pp. 299 and 300) '''' Justice, equity and good conscience are captivating terms ; but before a Judge applies what may appear to him at
first sight to be in accordance with justice, equity and good conscience, he must be careful to see that his views are based on sound general
principles, and or not in conflict with the intentions of the Legislature or with sound principles recognised by authority. In my opinion justice, equity
and good conscience do not require us in India to go so far afield as the Irish Courts, in order there to seek for, and thence to import into India,
novel principles of equity based on unsound analogy, and rejected as unsound by Judges of such authority as Bown and Fry, L. JJ., and not
followed by such an authority as the late Lord Justice Cotton in Falcke v. Scotish Imperial Insurance Co. 34 Ch. D. 234 and which further are at
variance with the Transfer of Property Act, 1882, of the Indian Legislature, and with the policy of the Government as disclosed in its legislative
enactments.
No doubt as held by the House of Lords in the recent case of Ruabon Steamship Co. v. The London Assurance 1900 A.C. 6 there is no
general principle of law that where one person gets some advantage from the act of another, a right of contribution towards the expense for that act
arises on behalf of the person who has done it. In that very case in which the right of contribution was negatived, the Lord Chancellor put it on the
ground that in that case there was no debt for which both the parties were bound to some third person on a common obligation binding both
parties to equality of payment or sacrifice in respect of such obligation, But when once the right of contribution is established, as in the present
case, it certainly cannot be an inequitable or violent stretch of such right to make it a charge against the co-owner''s share at any rate in certain
classes of cases and as against him. In the Allahabad Full Bench case the contention was that the charge should prevail as against a prior
mortgagee and in fact against a . purchaser in execution of a decree founded on such prior mortgage; and 1 suspect that the judgment of the Chief
Justice is principally directed to negativing the claim of priority of charge.
As between competitors for priority of charge I am inclined to think that unless the parties who are immediately concerned do not make the
necessary payment though an appeal is made to them for the purpose, a later incumbrancer who makes the payment can acquire no priority of
charge in respect of such payment, but that a person occupying the position of a part owner is under no obligation to communicate with
mortgagees and that if the payment be made by him honestly and bona fide and not by the mortgagee, to save the estate from being sold for
arrears of revenue he will acquire a priority of charge over such mortgagee as held in the dissenting judgment of Mahmood, J. I refrain, however,
from expressing any decided opinion on this point, as no such question of priority arises in the present suit and all that has to be decided in this
appeal is whether the plaintiff has, as against the defendant and any one claiming under him since the date of payment, a charge against his share in
the estate.
If ''justice, equity and good conscience do require us in India to go so farafield '' as the English courts '' in order there to seek for and thence to
import into India principles of equity'' we can certainly be pardoned '' to go so far afield as the Irish Courts '' for the same purpose. We in India are
not absolutely bound by the decisions of either set of courts, as we are by the decisions of the Judicial Committee of the Privy Council ; but without
resorting to the decisions of the Irish courts, I say with all deference, that the lien contended for in the present case is not importing into India any
novel principle of equity based on unsound analogy and rejected as unsound by judges of such eminence as Bowen and Fry, L.JJ. and not
followed by an equally eminent judge as the late Lord Justice Cotton in Falcke v. Scot Imp. Insurance Co. ; nor is it at all at variance with the
Transfer of Property Act of the Indian Legislature and with the policy of the Government as disclosed in its legislative enactments, at any rate, such
of them as are in force in this Presidency.
The English cases relating to liens for expenditure upon the property of another are collected by Fisher in his work on Mortgages (5th edition)
in paragraphs 520, 530, and there is an admirable summary and critical review of the English and Indian Law on the subject by Dr. Hash Behari
Ghose in his valuable treatise on mortgages (3rd edition, pp. 150�175). A reference to these will show that there is nothing novel in the lien
contended for in the present case. As regards the two English cases principally relied upon in the Calcutta and Allahabad Full Bench cases, as
negativing the lien, 1 venture to state, with all deference, that neither of those cases is an authority for the position that a part owner acquires no lien
upon the property of his co-owner, when the common debt which the former discharge was itself a charge and burden equally upon the share of
both. In In re Lesli 23 Ch.D. 582 Fry, L.J., in dealing with the payment of premiums on a policy of life insurance by a stranger or part owner,
formulated that a lien may be created upon the moneys secured by a policy, by payment of premiums in the following cases (P. 560):
First--By contract with a beneficial owner of the policy ; Secondly� By reason of the right of trustees to an indemnity out of their trust property
for money expended by them in its preservation ;
Thirdly--By subrogation to this right of trustees of some person who may at their request have advanced money for the preservation of the
property.
Fourthly.--By reason of the right vested in mortgagees, or other persons having a charge upon the policy, to add to their charge any moneys which
have been paid by them to preserve the property.
Later on (at p. 561) he added that except in the above four cases no lien is created by the payment of premiums by a mere stranger or part
owner. It will be observed that Fry, L.J., made such positive statement only with reference to the payment of premiums on a policy of insurance.
But I very much doubt whether even in regard to that class of cases Fry, L.J., was sufficiently guarded in making Such a sweeping and positive
statement. In Strutt v. Tippett 62 L.T. 475 Lindley, L.J., in dealing with payments by a stranger, of premiums on a life policy, referred as follows to
such statement of the law by Fry, L.J., (at p. 477) : ""I have come to the conclusion that, upon the documents, any right to a lien was excluded by
the terms. Apart from that I have some doubt if there would not be a lien. I am too cautious to indulge in general propositions, and I am doubtful if
the propositions in In re Leslie, Leslie v. French (ubi sup) are exhaustive. Fry, L.J., there, after enumerating cases in which a lien is created, says: ''I
am further of opinion that, except under the circumstances to which I have referred, no lien is created by the payment of the premiums by a mere
stranger or by a part owner.'' In this case the plaintiffs are mere strangers. I do not, however, regard the plaintiff''s claim to a lien as necessarily
excluded by the proposition in In re Leslie, Leslie v. French. If an owner of onerous property agrees with me to indemnify me or my property from
the burdens on the onerous property which may fall on me or my property, and the owner makes default, and I or my property have to bear those
burdens, I am inclined to think that I should have, as against the owner of the onerous property, a lien on it for the money expended by me in being
that burden which as between him and me he ought to bear, I should, in the case supposed, have preserved the onerous property for him under
circumstances which entitled me to it at his expense, and I do not think that in such a case my sole remedy is by an action for damages against him
the existence of such personal remedy would not, I think, exclude such lien. I am not aware of any decision inconsistent with this view, and the
principles on which many cases of equitable lien depend seem to me to support a lien in such a case.
The above remarks of Lindley, L.J., which were made with reference to payments made by a stranger, will apply with greater force to
payments made by a part owner. In In re Leslie, Fry, L.J., admits that it is well established that if a tenant for life renews leaseholds and dies before
the expiration of the renewed term, his estate is entitled to a lien on the interests in remainder proportionate to the unexpired portion of the renewed
term. But he distinguishes the same from the case before him on the ground that the equities governing the relation of tenant for life and
remainderman are peculiar, conceding that the case before him was not anologous to the relation of tenant for life and remainderman ; certainly the
equities governing the relation of co-owners of an estate subject to an indivisible assessment payable to Government under the stringent rules of the
revenue law in force in India and in the interests of the public, realisable summarily under the drastic measures of such law, are even more peculiar
than those between a tenant for life and remainderman.
In Falcke v. Scot. Imp. Insurance Co. 34 Ch.D. 234 the Court of Appeal held that payment of premiums on a policy of Life Insurance by the
assured in his character of owner of the equity of redemption could not give him a lien in priority to the mortgage debt, and that the fact that the
policy has been preserved by such payment did not give him a right to have the premiums repaid nor give him lien on the policy for it, and an
opinion was expressed that the maritime doctrine of salvage had no application to the payment of premiums on a policy. Cotton, L.J., in the course
of his judgment stated that if there had been circumstances leading to the conclusion that there was a request by the mortgagee of the policy that
the premium should be paid by the mortgagor, then there would be a claim against the mortgagee or his representative for the money and that he
would not say that there might not be a lien on the policy Bowen, L.J., lays down as follows the principles of law applicable to the case before him,
pointing out the distinction between the maritime law of salvage and the right claimed in that case: 34 Ch D. 248""The general principle is beyond all
question, that work and labour done or money expended by one man to preserve or benefit the property of another do not according to English
law create any lien upon the property saved or benefited, nor, even if standing alone, create any obligation to repay the expenditure. Liabilities are
not to be forced upon people behind their backs any more than you can confer a benefit upon a man against his will. ""There is an exception to this
proposition in the maritime law. I mention it because the word '' salvage'' has been used from time to time throughout the argument, and some
analogy is sought to be established between salvage and the right claimed by the respondents. With regard to salvage and contribution, the
maritime law differs from the common law. It has been so from the time of the Roman law documents, The maritime law, for the purposes of public
policy and for the advantage of trade, imposes in these cases a liability upon the thing saved, a liability which is a special consequence arising out of
the character of mercantile enterprises, the nature of sea perils and the fact that the thing saved was saved under great distress and exceptional
circumstances. No similar doctrine applies to things lost upon land, nor to anything except ships or goods in peril at see."" Fry, L.J., expressed
himself as follows as to the application of the doctrine of salvage to cases not connected with the perils of the sea (p. 254): ""I would make only one
other observation. We have heard a great deal on both sides of what has been called the doctrine of salvage. I, like Vice-Chanceller Kindersley,
exceedingly doubt whether that word can with any propriety be applied to cases of this description. With regard to salvage in the case of ships and
maritime perils we know its meaning. It appears that the expression ""'' salvage moneys"" as we are informed by one of the learned Counsel for the
appellant, and I daresay he is quite right, first occurs in the report of the case of In re Tharp which was before Lord St. Lenards in 1852, where he
seems to have used the expression as one familar to the Irish Courts in certain cases. I certainly wish that the expression had remained on the other
side of the channel where it seems to have arisen. I doubt whether any doctrine which is expressed by the word ''salvage'' applies to cases of this
description."" The learned Chief Justice in the Allahabad High Court evidently refers to the above observations of Bowen and Fry, L. JJ., when he
says that "" the doctrine, which apparently had its origin in the courts in Ireland that a charge upon land may arise on the principle of maritime civil
salvage has been satisfactorily exploded as a principle of equity'' (p. 298.)
Notwithstanding the supposed ''recent protest'' by two eminent English Judges as to the use of the expression ''salvage lien'' to cases other than
''Maritime Civil Salvage'', Lord Macnaghten in delivering the Judgment of their Lordships of the Privy Council in a latter case. Dakshina Mohun v.
Saroda Mohun ILR 21 C 142 , referred to the claim of a person, to be repaid, by the proprietor whose title was established under the final decree
in the case, the amount spent by him in paying the Government revenue of the land while he was in possession under the decree of the original
court subsequently reversed on appeal, as being ''in the nature of salvage.''
As regards the objection that the upholding of the lien in question is at variance with the policy of the Government as disclosed in its Legislative
enactments, I have already stated that even assuming it to be so, so far as the Upper and Lower Provinces of Bengal are concerned--though I am
by no means convinced that it is so, it certainly is not at variance with the corresponding enactments in force in this Presidency. The learned Chief
Justice (in the Allahabad case) further states that such lien is also at variance with the Transfer of Property Act. If this were really so, there would
certainly be an end of the matter, and no one could seriously support the lien. With all respect I must say that the very reverse is the conclusion to
be drawn from the provisions of the Transfer of Property Act. The appeal has not been argued, as it ought to have been with reference to Sections
82 and 100 of the Transfer of Property Act. These two sections throw a flood of light on the question under consideration if they are not decisive
of the same in favour of the appellant''s position. So far as it bears on the present question, Section 82 provides that where several properties of
several owners are mortgaged to secure one debt, such properties are in the absence of a contract to the contrary liable to contribute rateably to
the debt secured by the mortgage. This is simply a reproduction of the English Law as laid down in Fisher''s Law of Mortgages (5th Edition,
paragraph 1347, at p. 644.) Section 100 after defining what a ''charge on Immovable property'' is, extends the provisions contained in the
preceding sections as to a mortgagor, to the owner of the property subject to the charge. The right of contribution secured by Section 82 is only a
real right by way of charge on the several properties which where subject to the mortgage and not a claim '' in personam'' Baldeo v. Baij Nath ILR
13 A. 371 and the charge thus created is made subject to any in-cumbrance to which the property was already subject at the date of the
mortgage. And this right of contribution is extended by Section 100 to properties subject to a ''charge'' whether such charge be created by act of
parties or by operation of law. By virtue of Section 2 of the Madras Revenue Recovery Act the land is made security for the payment of revenue
due thereon to Government, and thus by operation of law the Crown has a charge on the entire land for the revenue due thereon. The direct
application of Sections 82 and 100 of the Transfer of Property Act, to the question arising in this case depends upon the right interpretation of the
phrase ''several properties of several owners'' occurring in Section 82. Does it denote only separate plots respectively owned by separate owners
in severalty or also distinct shares severally owned by two or more co-owners as tenants in common with unity of possession? On principle it is
difficult to suggest any distinction between the two in this respect. If the wider interpretation of the expression be the correct one, the present
question will be directly governed by the terms of Sections 82 and 100. The question of interpretation not having, as far as I am aware, been
judicially considered in any case, and not having been argued before us in the present case, I refrain from expressing any decided opinion on the
point either way. In Danappa v. Yamnappa ILR 26 B. 379 recently decided by the Bombay High Court, in which on a mortgage executed by
several members of an undivided family, a suit was brought against them after they had become divided and a decree for sale obtained; it was
assumed that one of the brothers who discharged the decree debt acquired u/s 82 a charge upon the share of his divided brother in the mortgaged
property and that such charge passed to a vendee under the brother who so discharged the debt along with his own share in the mortgaged
property.
Even if the expression in question cannot grammatically apply to properties not owned separately or in severalty but as co-owners with unity of
possession, the principle of the section which is borrowed from the English Law is equally applicable to the present case in which the property
belonged in undivided several shares to four co-owners as tenants in common, subject to a common burden or charge for revenue due to
Government, the whole of which was realized from the plaintiff''s share.
I may also advert to Section 95 (of the Transfer of Property Act) also based upon the English Law which provides for an analogous charge in
favour of one of several mortgagors redeeming the mortgage, on the share of each of the other co-mortgagoRs. But such charge being restricted to
cases in which the redeeming mortgagor obtains possession of the mortgaged property, that section does not bear so directly upon the present
questions as do Sections 82 and 100. I do not, howeyer, rest my decision on the doctrine of subrogation on which apparently Muthusamy Aiyar,
J. based his decision in Seshagiri v. Pichu I.L.R., 11 M. 452 on the authority of Gokul Doss Gopal Doss v. Ramulu Seochand L.R. 111. A. 133,
which in my opinion is inapplicable to the case and proceeds altogether upon a different principle. Whether the prerogative first charge in favour of
the Crown as security for the public revenue is one that rests upon the common law of the land, which is simply reproduced in Section 2 of the
Madras Revenue Recovety Act or it is one created by statute, is immaterial. In either case, it is a charge by operation of law in favour of the
Crown only and ceases when the revenue upon the land ceases to be public revenue and is converted by assignment in favour of a subject, into
rent or private property. The charge upon the land therefore cannot run with the revenue and accompany its assignment in favour of the subject.
The lien in question rests upon an equitable doctrine which also underlies Section 82 and 100 of the Transfer of Property Act, if not in terms
covered by it, and does not rest upon the doctrine of subrogation,,
This equitable doctrine was fully recognized in the follow-ing dictum of their Lordships of Judicial Committee in Nagendrachunder Ghose v.
Kaminee Dossee 11. M.I.A. 241 considering that the payment of the revenue by the mortgagee will prevent the Taluk from being sold, their
Lordships would, if that were the sole question for their consideration, find it difficult to come to any other conclusion than that the person who had
such an interest in the Taluq as entitled him to pay the revenue due to the Government, and did actually pay it, was thereby entitled to a charge on
the Taluq as against all persons interested therein for the amount of the money so paid. But their Lordships are of opinion that this is not the form in
which the question comes before them, and that what they have to decide is not whether such a charge originally existed, or whether it does now
subsist, but whether the appellants can enforce such a charge in the present suit."" I fully concur in the view taken by the dissenting Judges in the
Calcutta and Allahabad Full Bench cases and also by Sargent, C.J., in the 11. Bombay case that this dictum was not intended by their Lordships
to be applied only to a mortgagee who prior to the payment of revenue by him had a charge upon the land as mortgagee, but that the principle
indicated by the dictum is that any person who had such an interest in the land as entitled him to pay the revenue due to Government, and did
actually pay it, was thereby entitled to a charge on the land, as against all persons interested therein, for the amount of the money so paid, certainly
a co-sharer has at least such an interest in the land liable to be sold for realization of the public revenue, as a mortgagee of the land has, and is as
much entitled as a mortgagee to pay the revenue due to the Government and thus save the land from being sold.
If, as in India, there be in England landed property held by two or more co-sharers, subject to the payment of an indivisible revenue to the
Crown, which revenue, by operation of law, forms first charge upon the land, and one of them alone pays such revenue and saves the estate from
liability to be sold by the Crown, I have little doubt that without calling, in aid of the principle of maritime civil salvage or the decision of the Irish
Courts, such person will be able to establish his lien or charge on the shares of his co-sharers on the authority of several cases in the Chancery
courts and of the English equitable doctrine adopted in Section 82 of the Transfer of Property Act, and I see nothing in the Judgments of Fry,
Bowen and Cotton. L. JJ., in Leslie v. French and Falcke v. Scot Imp. Insurance, Co., to lead one to the conclusion that those eminent Judges
would take a contrary view and question his right to such lien or charge.
If the contention of a co-sharer Were that the right of contribution against him could be enforced only against his share in the property which
was saved from sale or destruction and not personally against him, there would be more equity in such position and more authority to support it.
Freeman in his work on "" Co-tenancy and partition"" states the law, at any rate, as it obtains in America, as follows (paragraph 176): ""One of the
acts that either part-owner may do, without special authority from the others, is to redeem the whole property from a prior sale made in solido for
the gross amount of taxes due thereon. While the other co-tenants may participate in the benefit of the redemption, the act of their companion is
not binding on them so far as to impose upon them a personal obligation to reimburse him for their proportion of the amount necessarily expended
in effecting the redemption. The amount thus expended may, no doubt, be asserted as a lien, against the joint property. But beyond this, the co-
tenant has no means of enforcing contribution; because the other co-tenants had the right to abandon their interest in the lands, and to forfeit all
claims to it, by non-payment of the tax liens against it."" And again (paragraph 263): ""The purchase of an outstanding title, the removal of a tax or
other lien or incumbrance, and the payment of a sum of money for the preservation of the common property, or for the protection or assertion of
some common right or the redress of some common injury are all spoken of, in general terms, as affording a ground for contribution in favour of
one co-tenant and against another. In no instance, however, have we found that either of these matters has been successfully employed as an
affirmative cause of action on which to base a personal Judgment against a non-contributing co-tenant, in the absence of a previous authorization or
a subsequent ratification of the transaction out of which the claim for reimbursement arose * * * *. If instead of purchasing some title, he has
discharged a valid lien or other claim against the property, he may assert such claim or lien to the extent of compelling an equitable contribution * *
*. But we think all claims by one co-tenant against another arising out of the common property, and disconnected alike from any agreement
between the parties, and from any circumstances which clearly establish that one must necessarily have been authorized to act for the other, must,
in their assertion, be limited to the declaration and enforcement of a lien against the property. If a different rule prevailed every part-owner would
constantly incur the hazard of being required to pay, for the removal of incumbrances, sums in excess of the value of the estate."" It is, however, not
contended on behalf of the respondent in the present case, that, if the plaintiff is entitled to claim contribution, the defendant is not personally liable
therefor and that he is entitled only to enforce the charge upon the property. So far as revenue due to Government is concerned, in addition to its
forming the first charge on the land, the several co-sharers of the estate are also jointly and severally under a personal obligation to Government to
pay the revenue and having regard to the various decisions of the courts in the very class of cases and analogous cases, all of which fall under
Sections 69 and 70 of the Indian Contract Act, no such contention can now successfully raised. It may also be mentioned that, u/s 35 of the
Madras Revenue Recovery Act, the mortgagee or other incutnbrancer upon the estate who pays the Government revenue, not only acquires a
charge upon the land which was saved by such payment but can also recover the same as a debt from the defaulter.
The point next to be considered is whether the plaintiff is entitled to the benefit of the twelve years'' period of limitation provided by Article 132
of Act XV of 1877 to enforce his charge, It is contended on behalf of the respondent that as Article 99, which prescribes only a period of three
years, specially provides for a suit for contribution by a sharer in a joint estate who has paid the revenue due from himself and his co-sharers, that
alone should be applied, even to the enforcement of the plaintiff''s charge upon the defendants'' share in the estate, if he has such charge, and not
the general Article 132 relating to enforcement of payment of money charged upon Immovable property. The decision of this Court in Natesan
Chetti v. Sundararaja Aiyangar ILR 21 M. 141 has no analogy to the present case. That turned upon the construction of Article 1ll which provides
a period of three years for a suit by a vendor of Immovable property to enforce his lien for unpaid purchase money. It will be observed that the suit
for which a three years'' period is prescribed by Article 1ll is specifically a suit to enforce the vendor''s charge for unpaid purchase money, and it
was held, dissenting from a decision of the Bombay High Court, that Article 132 cannot be applied to such a suit. That decision would have been
in point of Article 99 like Article 1ll had described the contribution suit as one by a sharer to enforce his lien or charge upon the shares of his co-
share. Whatever doubts might have existed at one time as to the scope and right construction of Article 132 of Act XV of 1877 and upon the
wording of the corresponding article in Act IX of 1871, see Lallubhai v. Naram ILR 6 B. 719 Davani Ammal v. Ratnachetti ILR 6 M. 417
Raghubardayal v. Lachminshankar ILR 5 A. 461 Shib Lal v. Ganga Prasad ILR 6 A. 556 Muhammad Zaki v. Chatku ILR 7 A. 120 it has now
been definitely settled by the decision of the Privy Council in Ramdin v. Kalka Prasad I.I.R. 7 A. 502, which no doubt is in apparent conflict with
the decision of the Court of Appeal in Sutton v. Sutton 22 Ch. 511 upon the corresponding section of the English statute of limitations (37 and 38
Vic. C. 57, Section 8), that the personal liability upon an instrument charging a debt upon Immovable property must be enforced within three or six
years according as the instrument is unregistered or registered, and that the claim to realize the money by sale of the property upon which it is
charged is governed by the 12 years'' period of limitation under Article 132. Miller v. Runga Nath Mullick ILR 12 C. 389, Khemji Bhagvandas
Gujar v. Rama ILR 10 B. 516. Seshayya v. Annamma ILR 10 M. 100 and Rathnasami v. Subramanya ILR 11 M. 56. The principle of the said
decision of the Privy Council is that, according to the general scheme of the second schedule to the Indian Limitation Act� which in this matter
differs from the scheme of the English statutes of Limitation in respect of one and the same suit, the period of limitation varies according as the
remedy is '' real '' or '' personal, '' and this can be illustrated by referring to several articles Thus Article 81 pre