The right to contribution is based on the principle of equality of burden and benefit, and it will not be just to compel the defendants to pay their share of the debt when they have not been relieved from the burden of the liability.

Venkatasubba Rao, J.

1. This appeal may be disposed of on a point of law but, it is necessary to state a few facts that gave rise to the suit.

2. The plaintiff, the first defendant and the father of the second defendant borrowed from one Ramanatha Chettiar Rs. 4,000 on a promissory-note and the creditor sued the executants of the note and he having died after the institution suit, his minor sons were brought on the record as plaintiffs with their mother as their next friend. A decree was passed in the suit against the plaintiff, the first defendant and the second defendant who was added as a party on the death of his father the plaintiff claims to have paid the full amount of the decree and has filed the suit for the recovery of that amount on the ground that the first defendant and the second defendants father are the principal-debtors and he was himself a surety.

3. The learned Subordinate Judge has disbelieved the case of the plaintiff that the whole amount borrowed was received only by the first defendant and the father of the second defendant. He further held that the payment alleged by the plaintiff to have been made with a view to satisfy the decree was not a valid payment which would enable the plaintiff to recover any a mount from the defendants. In the result, he dismissed the plaintiffs suit.

4. On behalf of the plaintiff-appellant it was argued that the finding that he was not a mere surety did not enta1 the dismissal of the suit and as there was a presumpt on that each of the joint debtors received an equal share of the amount originally borrowed, a decree should have been passed in his favour for two-thirds of the amount claimed and that the presumption was not rebutted by the evidence adduced on behalf of the defendants. It was next contended that the learned Judges view that there was no valid payment is wrong.

5. There may be objections to the suit being treated as a suit for contribution; the defendants having had no opportunity to refute a claim based on this footing, may be prejudiced by the nature of the suit being thus altered. But, in my opinion, it is unnecessary to deal with this aspect of the case. Nor is it necessary to decide any question of fact that arises in the appeal.

6. The facts bearing on the validity of the payment are these: The decree was passed on the 22nd of June 1915. The plaintiff alleges payment of the amount of the decree to one Kannuswami Iyer who deposed that he was the agent of Rama-nathan Chetty. An application was made by the Vakil of the decree-holders for the recording of the satisfaction of the decree and upon it the following order was made on the 16thof July:--"Satisfaction cannot be recorded as the next friend of the manors is not entitled to receive money in their behalf without furnishing security." The learned Subordinate Judge, holding that the payment was not duly recorded under Order XXI, Rule 2, Civil Procedure Code, decided that the plaintiff had no cause of action. I think the conclusion of the Subordinate Judge is right although I am not disposed to agree that his reason is correct. It is not necessary to decide whether the observation of Bashyam Iyengar, J.,in Putti Narayana MurthiAyyarv. Marimuthu Pillai 26 M. 322 that a payment which is not recorded is a valid payment correctly expresses the law nor do I think it necessary to decide the effect of payment which is, certified by the party but has not been recorded by the Court. For, in my opinion, the provision of law that has a bearing on the present case is Order XXXII, Rule 6, Civil Procedure Code. It runs thus:

(1) A next friend... for the suit shall not, without the leave of the Court, receive any money...on behalf of a minor... under a decree, or order in favour of the minor.

(2)...the Court shall, if it grants him (next friend) leave to receive the property require such security and give such directions as will, in its opinion, sufficiently protect the property from waste and ensure its proper applicatio