The plaintiff's right to contribution from co-tenants for payment made on their behalf and for their benefit under Section 70 of the Indian Contract Act.

JUDGMENT

Suhrawardy, J. - The suit out of which this appeal has arisen was one for contribution. The facts are that the plaintiff and the defendants held a jote jointly. At the instance of the landlord a certificate was issued and the jote was sold for arrears of rent. The plaintiff paid the* amount and had the sale set aside. Thereafter the present suit, was brought by the plaintiff for contribution against the defendants Nos. 1 to 6. The defendants Nos, 5 and 6 settled this case against them with the plaintiff; and the defendaiit No. 4's contention was that he had paid, his share of rent to the plaintiff. He died during the pendency of this appeal in this Court and no substitution has been made-in his place. The defendants Nos. 1 to 3 who are now the appellants before us Contend that they had paid their quota of the rent to the landlord before the certificate was-issued. The Courts below have granted" a decree to the plaintiff and the only ground taken before us on behalf of the: defendants Nos. 1 to 3 is that the plaintiff and the defendants being co-tenants and jointly liable for the rent in respect of, their joint tenancy, no right of contribution exists between them. I may mention' that this point was not raised in either of the Courts below and it is one which may depend upon the nature and special incidents of the tenancy. We are not disposed to allow the appellants to take it in this Court which is the third Court dealing only with questions urged in the Courts below in which only such questions of fact could have been raised. But on the ground taken by the appellants I do not think that they are entitled to succeed. The only authority which the learned Advocate' for the appellants has placed before us is the decision in the case of Futteh Ali v. Gunganath Roy 8 C. 113 : 10 C.L.R. 20 : 4 Ind. Dec 72. In that ca3e the question that came up for decision was whether the suit for contribution, not founded upon contract but in respect of money for' which the plaintiff and the defendant in the c mtribution suit had been by a former decree made jointly liable was or was not within the cognizance of the Court of Small Cause. It was held that such a suit did not lie in the Court of Small Causes. In coming to that conclusion the learned Judges made a casual observation to the following effect: "We very much doubt, whether a suit for contribution, where both plaintiff and defendants were liable for the money paid, by the plaintiff, falls within the scope of either Section 69, or Section 70 of the Contract Act, which, seem rather to contemplate persons who not-being themselves bound to pay the money or to do the act, do it under circumstances which give them a right to recover from the person who has allowed the payment to be made and has benefited by it." They cited no authority for this view as it was not necessary for the decision in that case. But a contrary view was taken long before that case was decided (and has been consistently held to be correct) in Mathoora Nath Chuttopadhya v. Kristo Kumar Ghose 4 C. 369 : 2 Ind. Dec.234. The facts were that A and B purchased at different times portions of the property on which there was a mortgage. There was a covenant in the deed of conveyance in favour of B that he would pay the entire mortgage-debt on the property. The mortgagee subsequently brought a suit and obtained a decree which was paid off by B. B then brought a suit for contribution against A and it was held that notwithstanding the terms in B's conveyance he is entitled to succeed against A and the ground for the decision is thus stated by Markby, J., with reference to Section 69 of the Indian Contract Act: "The plaintiff was interested in the payment of this money, because, he snys, if he had not paid it, his land would have been sold and it was a debt which the defendant was bound' by law to pay, because the mortgagee had legal, means to recover it against him. It seems, therefore, impossible to say that the case does no