A co-owner effecting necessary repairs to a joint property can claim contribution from the other co-owners, provided that the conditions of Section 70 of the Indian Contract Act are satisfied.

CHANDRA SEKHARA SASTRY, J.

( 1 ) THIS second appeal arises out of a suit for partition of the plaint schedule house into two shares, for separate possession of one share and for an account of the rents collected by the defendant from 11-4-52.

( 2 ) ISSUES Nos. 1 and 4 framed by the trial court are as follows :" (1) Whether the defendant had spent any amount for repairs ? If so, what is the amount ? * * * * * * (4) Whether the defendant is entitled to incur any amount for repairs without the consent of the plaintiff ? If so, whether the defendant is liable to be reimbursed?"the facts found by the Courts below are : The house was tenanted by the Municipality until 1952 for locating its Ayurvedic dispensary paying a rent of Rs. 20. 00 per month. But by 1952, the house was badly in need of repairs. The northern half portion was leaking and it threatened to fall down at any time. Therefore, the Municipality gave up possession and removed the dispensary to another building. Then, the defendant sent two notices, Exs. A. 1 and A. 2 to the 1st plaintiff informing him of the state of the house, demanding partition and further requesting him to co-operate in effecting repairs. But the 1st plaintiff did not co-operate. In the second notice, the defendant informed the plaintiff that, if he did not consent to the effecting of repairs, she would be compelled to effect repairs herself and recover from him a half share of the amount. As the 1st plaintiff did not co-operate, the entire roofing collapsed in the year 1955. This was also the view of the Commissioner, who personally inspected the building. It also appears that the eastern wall of the northern portion and the north-western wall of the out-house had also to be reconstructed besides some patch work being done. The house was cement plastered and the lavatories which had fallen down were reconstructed with bricks. The finding of the trial Court is that the defendant spent Rs. 2,181-25 np. for these repairs and this finding was confirmed by the learned Additional District Judge, Nellore. The trial Court found that the defendant paid Rs. 578-15 np. towards taxes payable for the house. Therefore, it held that the defendant is entitled to recover from the plaintiff a sum of Rs. 1,379-70 np. being half of the two amounts of Rs. 2,181-25 np. and 578-15 np. The trial Court further found that the plaintiffs half share of the rent realised by the defendant is Rs. 1,114. 00 and also that the half share of the taxes paid by the plaintiffs and which the defendant is liable to bear is Rs. 28-72 np. making a total of Rs. 1,142-72 np. Deducting this amount from Rs. 1,379-70 np. payable by the plaintiffs to the defendant towards the formers half share of the amount spent for repairs and taxes, the trial Court finally held that the plaintiffs are bound to pay to the defendant a sum of Rs. 236-98 np. The decree of the trial court also contained the other reliefs relating to the partition of the house. These findings and the decree which followed thereon were confirmed in appeal by the learned Additional District Judge. This second appeal is filed by the 3rd plaintiff, who is one of the legal representatives of the 1st plaintiff, who died pending the suit. The contesting respondent is the 1st respondent, who is the defendant and respondents 2 and 3 in this second appeal are plaintiffs 2 and 4, who are also the legal representatives of the deceased-1st plaintiff.

( 3 ) THIS being a second appeal, the finding of the Courts below as to the amounts spent by the defendant for repairs and the amounts paid towards taxes as well as the amount collected by her as rent are not and could not be questioned before me. The only question argued by the learned Counsel for the appellant is that the defendant, who is a co-owners, could not, without the consent of the 1st plaintiff, who was the other co-owner spend any amount for effecting repairs to the house and claim a half share thereof from him. The argument is that one

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