Kunju Naina Nina and Others vs Lapen Chacko

Koshi, C.J.—The appeal arises out of a suit for contribution.

The Plaintiff had an elder brother by name Kunju Nina. On 28-11-1088 the two brOrs. executed a chitty hypothecation bond in favour of P.W. 2 and Anr. . Prom the I6th instalment of the chitty default was made in the payment of the subscriptions and the foremen instituted a 6Uit in O.S. No. 114 of 1099 on the file of the Kottayam District Court to recover the unpaid subscriptions in a lump. Relief was sought against the hypotheca and also personally against the executants. The bond comprised properties belonging to both the executants. Kunju Nina, Defendant 1 in that suit, died during the pendency of the suit, but without noticing that fact, on 27-12-1101, the Court passed a decree as sued for in the plaint. Defendants 1 to 3 in the present suit are the sons of Kunju Nina and Defendant 4 is their deceased elder brother''s son. Defendant 5 is the mother of Defendant 4. In the proceedings to execute the decree passed in O. S. No. 114 of 1099, the decree-holders thereto tried to implead the present Defendants as legal heirs of Defendant 1 deceased, but the Court did not allow it as the decree was one passed after Defendant 1 had died. This was on 22-4-1105 (Vide Ex. II).

The present Plaintiff, Defendant 2 there, feeling aggrieved by that order took the matter in revision to the High Court but the revision was unsuccessful. Thereafter execution proceeded against the present Plaintiff and during the pendency of such proceedings the decree-holders assigned'' their rights in the decree to P.W. 1 in the present suit. Pursuant to execution taken out at the instance of the assignee-decree-holder the Plaintiff''s properties comprised in the decree were brought to sale, but before the sale could take place the Plaintiff satisfied the decree by payments made out of Court and by selling some properties to the assignee-decree-holder. The sale was on 8-12-1113. Exhibit C is a copy of the sale deed and it shows that, after giving credit for previous payments, the decree was agreed to be adjusted by a further payment of Rs. 2000/-. The consideration for the sale was fixed at that sum and it therefore fully satisfied the decree.

Some time later on 11-2-1114 the assignee-decree-holder certified to the Court satisfaction of the decree. Exhibit B is a copy of the certificate of satisfaction. The present suit for contribution for the amounts the Plaintiff paid towards the decree-debt in excess of his half share was brought on 11-2-1117, i.e., when three years-were expiring from the date the certificate of satisfaction of the decree in O.S. No. 114 of 1099 was filed in Court. Realisation of the claim was sought from the assets of the deceased Kunju Nina in the hands of the Defendants and personally from them to the extent the Plaintiff succeeded in showing they have enjoyed such assets. The Defendants raised various defences but the lower Court repelled them all and gave a decree to the Plaintiff to recover a sum of Rs. 1487/- with interest thereon at six per cent, per annum from 1152-1114 to the date of realization from Defendants 1 to 3 and the assets of their father that have come into their hands and the hands of Defendants 4 and 5. Defendants have hence brought this appeal.

In setting out the facts we have confined ourselves to such facts as are absolutely necessary for the purpose of the appeal. There is no case for the Appellants that the amount fixed by the lower Court as Kunju Nina''s share of the debt is in excess of one-half share.

Learned Counsel for the Appellants raised two contentions in the appeal. One was that though the chitty hypothecation bond was a joint bond by the Plaintiff and his elder brother Kunju Nina and the liability thereunder was joint and several, as the suit O.S. No. 114 of 1099 had abated as against Kunju Nina the Plaintiffs in that suit lost for ever their remedy against Kunju Nina''s estate and that against his legal heirs, and that, therefore, the present Plaintiff did not obtain a right for contribution for anything paid by him in excess of one-half share of the debt under the bond.

According to the Appellants for the right of contribution to arise the debt must have been a live one against them when the Plaintiff discharged it. It was stated that the effect of the abatement of the suit as against Kunju Nina was to make the liability for the entire debt solely that of the Plaintiff. The other contention was that even assuming that the Plaintiff had a right for contribution against Kunju Nina''s estate for any payment made by the Plaintiff in excess of his halt share of the debt the present suit was barred by limitation as it was brought beyond three years of the payment made as per the sale deed of 8-12-1113. A payment in excess of the Plaintiffs half share of the debt was made for the first time under that document.

Kunju Nina and the Plaintiff were Joint promisors under the chitty hypothecation bond and there is nothing in that document to show that the liability thereunder was not joint. In the case of joint promisors, the promisee may, in the absence of express agreement to the contrary, compel any one or more of the joint promisors to perform the whole of the promise. Vide Section 43, Contract Act. Amongst other matters the section also provides that unless a contrary intention: appears from the contract a joint promisor may compel every other joint promisor to contribute equally with himself to the performance of the promise. Section 44 enacts as follows:

Where two or more persons have made a joint promise, a release of one of such joint promisors by the promisee does not discharge the other joint promisor or joint promisors; neither does it free the joint promisor so released from responsibility to the other joint promisor or joint promisors.

The first contention raised before us on behalf of the Appellants has to be dealt with in the light of ''the principles embodied in these provisions.

Commenting upon Sections 42 to 44, Contract Act, in - S.P. Abraham Servai Vs. Raphial Muthirian, , Tyabji J. said:

Following therefore the wording of the Act it may be stated that the right of each joint promisor to compel every other joint promisor to contribute equally with himself to the performance of the promise is unaffected by the mode in which the promisee exercises or fails to exercise his rights

(a) to compel all the joint promisors to fulfil the promise'' (Section 42) or

(b) to compel any one of them to do so (Section 43) or

(c) to release one without discharging the other (Section 44).

An express release by the promisee cannot (on principle even apart from Section 44) affect the right of a third person (the joint promisor). The direct liability on the joint promise may thus be expressly annulled, without affecting the collateral liability. It is difficult then to conceive how the promisee''s mere omission to sue during the statutory period an omission which does not destroy even his own right but merely bars his remedy by suit (- Subramania Aiyar v. Gopala Aiyar 33 Mad 308(B) ) can affect the joint promisor''s collateral right.

Continuing the learned Judge said:

The result at which I have arrived agrees with the view of a strong Court of appeal in Ireland in - Gardner v. Brooke (1897) 2 Ir. R. 6 at p. 12(C) upholding the concurrent decisions of Brian, C.J., and the Division Court. In that case the right of contribution from a joint promisor was thus referred to. ''The right comes in equity originally and absolutely by the payment in discharge of a common burthen and has no existence whatever, inchoate or complete till the payment is made. It is not therefore affected by what affects the contract...The principle came into England from the Civil Law where it pursues exactly the same consequences and distinctions that are found in equity, all based on community of burthen and benefit from payment and none from agreement''. In the same case Gibson J., said ''contribution is not limited to cases of guarantee but extends to all cases where one is compelled to pay more than his proportion of a joint liability - Ramskill v. Edwards (1888) 31 Chn 100(D).

The question here is that of the extent of the obligation of the joint makers to one Anr. . Is it an unqualified liability, according to the proportionate shares of each to indemnify any joint maker who may at any time be legally compelled to pay more than his share? or does the duty depend on the co-debtor who has paid in excess of his share, being merely subrogated into the creditor''s rights? or does the obligation only bind a party so long as he himself remains liable to the creditor, and therefore, may himself require the benefit of indemnity against the Ors. ?

The first view is, I think, plainly the true one. When they signed the note the parties must have contemplated that it should be paid and that the burden should be shared equally. The fact that one happens to escape from legal liability to the creditor, without the consent of his associates, and perhaps even without their knowledge cannot be allowed to disturb the original obligation between the co-debtors, or to alter the proportions of liability or contribution which must be ascertained from the note at the time that it was made. The duty to contribute here binds all so long as any one remains legally liable by virtue of the joint contract.

In the above case in a suit upon a joint pronote by two persons one of them was exonerated on the ground that the suit had become time-barred as against him. The other co-executant had kept the debt alive by part payments or acknowledgments and a decree was therefore given against him. After discharging the decree debt he brought a suit for contribution and the Defendant contended that as he was exonerated from payment in the previous suit he was exonerated from the duty to contribute. It is the identical argument that the Appellants urge before us with respect to their first contention. In ''Abraham Servai''s case (A)'' Tyabji, J. met it by saying:

...The decree gave effect to the direct liability arising from the contract as between the promisee and the joint promisors in so far as that liability could be enorced by suit. It did not affect the collateral liability as between the joint promisors themselves arising not from the contract which was the cause of action in the first suit, but from the payment consequent on the decree.

Oldfield, J., who delivered the first judgment in the case after referring to - (1897) 2 Ir. R. 6(C)'' and other cases said with respect to the former case as follows:

The reasons for the decision in the Plaintiff''s favour Were that the Defendants liability rested on grounds of equity independent of the original contract with the creditor, was based on the payment made in discharge of the common obligation and had no existence till that payment was made.

The learned Judge then went on to say that the decisions referred to in the judgment of his learned colleague were directly in point and that they must be followed. The headnote to the case correctly summarises the points decided and they may usefully be quoted here.

(1) that the right to sue for contribution arose only on Plaintiff''s payment;

(2) that the Defendant was liable to contribute in spite of the fact that he was exonerated under the previous decree on the ground of limitation; and

(3) that the suit was not barred by limitation, the cause of action having arisen only on the date of Plaintiff''s payment. The liability to contribute is based on an equity arising out of the co-debtor''s payment and it has no reference to the original liability to the common promisee.

In the case before us the position of the Defendants cannot be better than that of a Defendant who was expressly exonerated. The order of abatement has the effect of a judgment in favour of the Defendant. No distinction can be made between a judgment obtained on the merits and a judgment obtained on a failure to prosecute the suit. Rahim Unnissa Begam v. Srinivasa Aiyangar AIR 1920 Mad 580(E). The decision in ''Abraham Servai''s case (A)'' is, therefore, clear authority against the position contended for by the Appellants that they have no liability to contribute towards the debt under the chitty hypothecation bond.

To the same effect is an earlier decision of the Madras High Court reported in - Ramayya v. Venkattappiali (1910) Mad WN 839(F). There a Zemindar brought a suit for arrears of rent against some alone of the co-tenants. The decree passed was discharged by some of the Defendants and they afterwards brought a suit against their co-Defendants as also against the tenants who were omitted to be impleaded in the landlord''s suit. On the date of the latter suit the claim of the landlord to recover the rent covered by the rent decree was time-barred and among various other pleas it was contended that no suit will lie against such of the tenants as were not parties to the rent suit and that the suit was time-barred. In repelling that contention Abdur Rahim, J. said:

It is not disputed that the case is governed by Article 61, Limitation Act, and that article provides that time begins to run from the date of payment by the Plaintiffs. The Plaintiff''s cause of action against the Defendants is not the same as that of the landlord. The former''s cause of action is based on grounds of equity which would come into operation only if and when the Plaintiffs were compelled to discharge and in fact actually discharged not only their proper share of the liability but also the liability of the Defendants to the common granter (see - Tirupati Raju v. Rajagopala Krishna Raju 8 Mad LJ 271(G); - Torab Alikhan v. Nibrut- tun Lal 13 Cal 155(H), Halsbury''s Laws of England, Vol. VII, p. 471 and Pomeroy''s Equity Jurisprudence, Vol. VI, Sections 915 to 917).

But it is urged that it is hard or at all events anomalous that the right of the landlord should be barred and the Plaintiffs should yet recover the amount for which the Defendants were primarily liable to the former. But I do not see any hardship or even anomaly in the position. The nature of the Defendants'' obligation to the Plaintiff is different from that of their obligation to the landlord and it does not follow that because the Defendants might have a valid defence against the latter that the same defence should be available to them against the former. (See Pomeroy''s Equity Jurisprudence, Vol. VI, Section 919). In the case reported in - ''8 Mad LJ 271(G)'', the original creditor''s remedy, if sought to be enforced at the date of the institution of the suit for contribution would also have been barred, but in spite of that fact it was held that the suit of the Plaintiff in that case was not barred.

Among cases which take the same view regarding the obligation for contribution by a co-promisor against whom the creditor had lost his remedy may be cited - Raghavendra Gururao Naik Vs. Mahipat Krishna, and - Bhaskaruni Venkatanarayana Vs. Bhaskaruni Lakshmibayamma, If we may say so with respect there is an illuminating discussion of the subject by Bhashyam Ayyangar J. in - Putti Narayanamurthi Ayyar v. Marimuthu Pillai 26 Mad 322(K).

On principle and authority we have, therefore, to repel the first contention raised before us by the Appellants and hold that in order to attract the obligation of a co-promisor to contribute towards a joint debt it is sufficient that the debt was discharged by a co-promisor when the debt was alive against him. It is not necessary that the liability of the co-promisor against whom contribution is claimed was a subsisting one when the promisee was paid; the relevant consideration was whether it was subsisting against the co-promisor who claims contribution when he paid it.

The next aspect off the case is the one relating to limitation. The lower Court applied Article 86, Travancore Limitation Act, 6 of 1100- (a provision which in terms correspond to Article 99 "of the Indian Limitation Act, 9 of 1908) to the suit and also held that limitation began to run not from 8-12-1113, the date of payment, but from 11-2-1114, the date when satisfaction of the decree was entered in Court. We notice here a double wrong.

Firstly, Article 86 would apply only to claims for contribution which come under its exact terms, viz., in respect of joint decrees or in respect of payments on account of revenue. Column I of the article reads:

For contribution by a party who has paid the whole or more than his share of the amount due under a joint decree, or by a sharer in a joint estate who has paid the whole or more than his share of the amount of revenue due from himself and his co-sharers.

In this case though on a paper there was a decree against two persons we have seen that it was valid only against the present Plaintiff and not against the present Defendants or their predecessor-in-interest, Defendant 1 in that suit. There was, therefore, no joint decree to attract the application of the article.

Secondly column 3 of the article is to the effect that limitation commences from the date of the payment in excess of the Plaintiff''s own share. As noticed earlier in this case payment in excess of the Plaintiff''s half share of the debt was made on 8-12-1113 when the decree debt was discharged by the execution of the sale deed, the original of Ex. C. The present suit for contribution was instituted on 11-2-1117 when three years were expiring from the date satisfaction of the decree was entered, viz., 11-2-1114. If the words of column 3 are understood in their plain meaning even if Article 86 applied the suit was brought after the period of three years prescribed by col. 2 had expired.

The learned Judge got over the difficulty by interpreting the words ''date of payment'' to mean the date of certification when alone according to him the payment became "effective". We cannot here do better than quote the words of Wads- worth J. in - Polegar Meghavaranam Naidu and Others Vs. A.M. Mahommad Mohideen Sahib and Another, . The learned Judge was referring to the words "when the money is paid" occurring in column 3 of Article 61, Indian Limitation Act (the corresponding provision in the Travancore Limitation Act, 6 of 1100 was Article 52). Referring to a similar argument advanced in that case the learned Judge said:

Nor do I think it right to read into the Limitation Act words which are not there when the words which are there have themselves a clear and unmistakable meaning. Article 61 reads ''For money payable to the Plaintiff for money paid for the Defendant''. ''Three years from when the money is paid''. There is no such phrase as "when the money is paid effectively"or" when the money is paid to the creditor of the Defendant."

The question was when money is paid into Court to set aside an execution sale when it can be said to have been paid for purposes of Article 61; whether on the date of the deposit or on the date when the sale is set aside. The relevant date was held to be the former when the Plaintiff suffered the detriment and not the latter when the Defendant received the benefit. Articles 61 and 99 are in ''pari materia'' and what Wadsworth, J., said with reference to Article 61 applies with equal force to Article 99. In fact Article 99 applies to a special kind of suit comprised in the general class to which Article 61 applies.

In a suit for contribution it is not often necessary to determine whether Article 61 or Article 99 applies. For in either case the period of limitation is three years, and the ''terminus a quo'' is also in effect identical. These articles do not purport to lay down the law as to when a right of contribution arises. For the purpose of ascertaining that we must (go?) to substantive law. In his judgment in-Rajah of Vizianagram v. Rajah Setrucheria Somasekharaz 26 Mad 686(M) Bhasyam Ayyangar, J., pointed out that under the general law each time that an amount is paid or levied from a joint-debtor or co-sharer in a joint estate in excess of his share of a debt due he has a right of suit for contribution in respect of such payment, that consequently when he brings the suit after making several such payments he unites several causes of action in one and the same suit and the law of limitation under Article 99 applies separately to each of such causes of action from the date of the respective payments and the claim for contribution in respect of payments made more than three years before the date of the suit would be barred by limitation.

The lower Court clearly went wrong in applying Article 86 (Article 90 Indian Limitation Act) to the case and also in the interpretation it gave to the words occurring in column 3 of the article. It is indeed a strained interpretation that the learned Judge gave to the words of column 3 of Article 99. Column I, thereof, as noticed earlier, has no application to the case. The words "The date of payment in excess of the Plaintiff''s own share" in the article and the words "When the money is paid" in Article 61 should be given their plain meaning. Under Order 21, Rule 1(b), CPC payment out of Court to the decree-holder is a valid mode to discharge a'' decree debt. Rule 2 of the said order simply prescribes the procedure for recording the fact of such payment in the Court which has to execute the decree. Per Bhashyarn Ayyangar, J., in-''26 Mad 322 at 325 (K)''.

It cannot be that had no certificate of satisfaction been filed in O.S. No. 114 of 1099 the Plaintiff would have had no cause of action for claiming contribution. The construction the lower . Court gave to the words in col. 3 of Article 99 would "lead to the contrary view, which, in our opinion, would be absurd. Notwithstanding the sale deed in his favour had the assignee-decree-holder executed the decree instead of entering satisfaction the Plaintiff would not have been left without a remedy. He would have then become entitled to claim back from the assignee-decree-holder what was made good to him towards the decree under the sale deed.

Article 61 (Article 52 of the Travancore Limitation Act, 6 of 1100) is the general article governing all suits for the recovery of "money payable to the Plaintiffs for money paid for the Defendant". Schedule 2 of the Limitation Act contains other special article applicable to such suits. There is no special article applicable to the present case. When two persons jointly owe a debt and one of them pays off the whole amount it has come to be recognised that so far as the payment is in excess of the share of the person paying it the must be considered to have made the excess payment for and on behalf of his co-debtor. Suits for recovery of the excess payment from the co-debtor are suits for contribution. Where such suits do not fall under any of the special articles (Articles 79, 81, 82, 83, 99, 100 and 107, Indian Limitation Act) they come under Article 61. See - ''(1910) Mad WN 839 (F)''; - Debi Sabai v. Gauri shankar Sahai 5 IndCas 440 (Oudh)(N); - Annada Mohun Roy v. Maniruddin Mahomed AIR 1917 Cal 203(O); - Marudai Muthirian v. Chinnakanu Muthirian AIR 1919 Mad 332(P) and - Walaiti Ram v. Ram Kishen AIR 1924 Lah 112(Q). So if Article 61 (Article 52, Travancore) is held to apply to the case, for reasons stated earlier, the suit must be held to have been instituted out of time as limitation commenced to run from the date of payment.

The peculiar feature of the present case dealt with in. the earlier part of this judgment has however to be reckoned with. Column 1 of Article 61 reads: "For money payable to the Plaintiff for money paid for the Defendant". The cases referred to in the preceding paragraph are all cases where one co-promisor paid in excess of his share when the debt was alive and subsisting also against the other" co-promisor or co-promisors and hot cases where the creditor''s remedy against the latter was lost by lapse of time or for any other reason. The question is whether when on the date of payment of the debt by one co-promisor in excess of his share the creditor''s remedy against the other co-promisor or co-pomisors was lost the excess payment can be said to, have been made for the other co-promisor or co-promisors. Decided cases go to show that when the creditor has no enforceable claim against other co-debtors when one co-debtor paid the debt the case cannot fall under Article 61, but that it would fall under the residuary Article 120 (Article 109, Travancore).

The first case we refer to in this context is,the decision of the Madras High Court reported'' in - Muthuramalinga Sethupathi v. Mahalinga Raju AIR 1919 Mad 31(2)(R). Under the provisions of the Madras Local Boards Act (5 of 1884) the landlord is primarily liable to Government for payment of the cess and not the tenant. The tenant is liable only to the landlord for the amount actually paid by the latter. A suit by a landlord to" recover from the tenant the cess actually paid by him was held to fall under- Article 120, and not Article 61, the reason being that the latter article applies to cases of money paid by the Plaintiff on behalf of the Defendant. The Plaintiff''s payment was not of that description.

In - ''AIR 1917 Cal 203(O)'' a case referred to earlier - a suit by a tenant who deposited the amount of a rent-decree against his co-tenants and thereby prevented the sale of the tenancy, against the co-tenants for contribution joining thereto the landlord as a Defendant, with a prayer that if the landlord had already received from the co-tenants the amount of rent payable by them a decree may be made against him for the refund of the amount was held to be governed in so far as the landlord was concerned not by Article 61 but by Article 120. It was stated that there was no money paid by the Plaintiff for the landlord and that as such Article 61 did not apply to the claim against him. As for the claim for contribution against the co-tenants the applicatory provision was found to be Article 61.

In - Lingamallu Seenayya Vs. Lingamalla Ramalingayya, partner who paid his share of the loss incurred in the partnership sued his sub-partner for portion of such a loss by virtue of the contract as between them. The applicability of Article 61 was ruled out on the ground that payment of his share of the loss by the principal partner cannot be deemed to be payment for, or on behalf of, his sub-partner. Venkatasubba Rao, J., pointed out that the partner made the payment on his own behalf and the fact that he was entitled to recover a proportion of what he paid from his sub- partner was no reason for holding that he paid the amount on behalf of the latter.

Reference may also be made with profit to the cases in - Pamamachand Chandiram v. Kashinath Deoram AIR 1922 Bom 257(1)(T); - Saudagar Mal v. Bahadur Chand AIR 1928 Lah 442 (U); and - Dwarka Prasad and Others Vs. Ulfat Rai and Others, . What these cases say is the fact that the Plaintiff could recover the whole or part of what he paid in discharge of the prior liability from the Defendant would not constitute the former payment to be a payment for the Defendant. To constitute such payment" it is essential that the Defendant was himself under a liability to make the payment to the person to whom the Plaintiff paid the money.

Chitaley''s commentary on Article 61, Limitation Act, points out under Note 5 (3rd (195:2) Edn. Vol. II, p. 1279) that a view different from the one referred to above has been taken in - Kanda-swamy v. Avayambal 34 Mad 167(W). We are afraid the learned commentator misunderstood the decision. The case arose from a suit to recover certain amounts spent by the Plaintiff for the Defendant, while the Plaintiff was working as the Defendant''s agent. The suit was brought within three years of the termination of the agency. The District Munsif as also the District Judge held that Article 61 applied to the case, that the cause of action for each advance arose as and when the payment was made and as all the advances were made beyond three years preceding the suit, the suit was barred by limitation. Before the High Court an argument was advanced that Article 61 had no application to payments falling u/s 70, Indian Contract Act. All that the learned Judges (Benson and Krishnaswami Ayyar, JJ.) said was that there was no reason for limiting the scope of the article by not extending it to cases falling within the scope of Section 70.

With respect to cases falling u/s 70 there would exist no antecedent liability on the part of the Defendant. The very payment or advance ereates the liability while with reference to a case falling within the ambit of Section 69 the Plaintiff discharges a liability which the Defendant is already under an obligation to pay. The argument was the article applied only to cases where there was an antecedent liability and not where the very advance or payment created the liability for the first time. The learned Judges pointed out that cases falling u/s 70 were certainly covered by the language of the article. Other commentators like Rustomjee and U.N. Mitra interpret the decision in the sense we understand it. See - The law of Limitation by Rustomjee 6th (1938) Edn. Vol. I, p. 735, foot-note 3 and U.N. Mitra''s Law of Limitation and Prescription 7th (1949) Edn. Vol. I, p. 474, foot-note 6. The decision has no bearing on the point of limitation arising for decision here. In the passage referred to by Chitaley the learned Judges only consider the nature and the basis of the liability needed to attract the application of Article 61.

No other article of the Limitation Act being applicable to the case the residuary Article 120 governs it. That article prescribes a period of six years from the date the right to sue accrues. We Have seen that under substantive law that right arose when the Plaintiff made payment towards the discharge of the debt in excess of his share. The suit having been brought well within six years of such payment we affirm the lower Court''s decision that the suit was not barred by limitation, though for reasons different from those mentioned by that Court.

It is anomalous that a suit for contribution! in respect of a claim which was alive and subsist-L ing against the Defendant when the Plaintiff paid it has a shorter period of limitation than a suit of the present type. All rules of limitation are arbitrary. A search for reason or equity behind them would always be in vain.

The appeal fails in the result and we dismiss it with costs.

The Plaintiff has preferred a memorandum of cross-objection regarding a portion of the costs disallowed to him by the lower Court. We said earlier that we were setting out only such facts as were necessary for the purpose of the appeal. The plaint claim covered not only contribution- towards defaulted subscriptions from the 16th in-stalment of the chitty but also contribution towards some previous instalments which according to the Plaintiff, his brother had omitted to pay and which he had therefore to pay. The claim was found to be untrue. We are, therefore, not prepared to say that the lower Court acted wrongly in asking the Plaintiff to pay to the Defendants proportionate costs on the claim disallowed. There is hence no merit in the memorandum of objection and it will stand dismissed with costs.