Gobindo Chunder Chukerbutty vs Basant Kumar Chukerbutty and Others

In execution of a decree obtained against the recorded holders of a taluk for arrears of rent due on account of a part of the year 1299 and the entire years 1300 to 1302 the taluk was sold in Pous 1303. The Plaintiff''s, who are some of the recorded holders of the taluk, got the sale set aside under sec. 174 of the Tenancy Act by paying the amount required to be paid under that section and brought this suit to recover by way of contribution from their'' shareholders in the taluk, recorded and unrecorded, the amount of their respective liabilities. They have obtained a decree against which the first Respondent Gobind Chunder Chakerbutty alone appeals as regards a portion of the amount for which ho has been held liable. The Appellant, who is not one of the recorded holders of the taluk, was not a party to the rent-suit above referred to, but the lower Appellate Court has found that he purchased a 1 anna 5 gundah share of the taluk in Magh 1299 and a 1 anna 10 gundah share in Ashar 1300 and that the 2 annas 15 gundah share thus owned by him was sold in execution of a decree obtained against him and purchased in Ashar 1302 by one of the other Defendants. Under these circumstances the lower Appellate Court has held him liable to contribute his share of the rent for the periods during which he was the owner of the shares specified above, and it is against this part of the judgment that the appeal is preferred.

It may be that the Appellant did not, as he says get possession of the shares purchased by him, but it is not alleged or proved that this was in any way due to the fault of the Plaintiffs. All the owners of the taluk were jointly liable for the rent during the period over which their ownership extended, and although the landlord sued only the recorded holders for the rent, as he was quite justified in doing, this would not relieve the unrecorded holders from the equitable liability of paying their share of the rent to those of the recorded holders who had been obliged to pay the whole. The point which has been most strongly pressed upon us is that the Appellant derived no advantage from the payment made by the Plaintiff''s as his interest in the 2 annas 15 gundah share had passed at the time when the payment was made, and he had as regards that share no interest in the taluk to preserve, "ft is argued that the person who purchased the 2 annas 15 gundah share purchased it subject to all its liabilities for outstanding rent, and that he alone, if any one, can be made liable to contribute towards the Plaintiff''s demand. The liability as between the Appellant and the Plaintiff''s does not, however, depend upon the benefit which the Appellant derived from the payment made by the Plaintiff''s, but upon the Appellant''s liability as a co-owner of the taluk to contribute his share of the entire rent which the Plaintiffs had to pay. They may, by doing so, have saved the taluk, but the decree-holder was not bound to proceed against the taluk and might have proceeded against them personally. It may be that the purchaser of the 2 annas 15 gundah share could not have come down upon the Appellant for any rent which had become clue before the purchase, but the question here is not between the Appellant and the purchaser, but between the Plaintiff and those who were the co-owners with him of the taluk during the period for which the rent became due. The cases cited for the Appellant do not appear to us under these circumstances to-be applicable. The appeal must be dismissed with costs : and this decision admittedly applies to second Appeal No. 1118 of 1897 which is also dismissed with costs.