JUDGMENT P.C. Banerji, J.
1. This application for revision arises out of a suit for contribution brought in the Court of Small Causes at Allahabad so far back as the year 1911. The case came up to this Court once before and after certain issues had been sent down to the Court below, it was finally remanded to that Court for re-trial in accordance with the judgment of Mr. Justice Tudball reported as Lola Ram v. Sheo Prasad 20 Ind. Cas. 176 : 11 A.L.J. 657. The facts are these:
2. The plaintiff and the two defendants jointly took a lease from the Oudh and Rohilkhand Railway Company for cutting grass. The rent reserved by the lease was Rs. 2,000. The Railway received on account of rent the total sum of Rs. 1,533-5-6; for the balance, namely Rs. 466-10-6, a suit was instituted on behalf of the Secretary of State against the three defendants and a decree was obtained on the 28th of May 1909. The amount of the decree was realised from the plaintiff 9 lone and thereupon he brought the suit, out of which this application for revision arises, for contribution against the two defendants. The suit was first dismissed, on the ground that it could not be maintained until after an account of tfce partnership had been taken. The defendants contended that they had paid off their share of liability for the rent and that nothing was due by them. After the remand by this Court the case was tried by the learned Judge of the Court of Sina Causes and he made a decree for the full amount of the claim agninft the two defendants.
3. This decree is clearly wrong in one respect. It was made jointly against both the defendants. In a suit for contribution it is the duty of the Court to determine the amount of liability of each defendant and to make a decree apportioning to each of them the amount for which he is found to be liable. A joint decree is clearly erroneous.
4. There is another error in the decision of the Court below, and it is this.
5. The learned Judge thinks that because a decree was passed against the plaintiff and defendants, therefore the defendants are liable for 2/3rd of the decretal amount. This view also is clearly erroneous.
6. In a suit for contribution what the Court ought to determine is, whether the plaintiff has paid for the defendants their share of liability for the original debt. So far as the creditor is concerned he is entitled to recover what is due to him from all the three debtors, but as between themselves each of them is liable for so much of the debt as he has not paid to the creditor and as the plaintiff has paid for him. If the learned Judge had proceeded to try the case from this point of view, he would not have made a decree in the manner in which he made it. After the remand no evidence was given to show how the partnership account ntood and, therefore, the case had to be tried independently of the partnership account, there being no materials before the Court to enable it to judge what would be the liability of each partner if a complete account of the pa tnership were taken.
7. As I have said above, the total amount of rent payable by the parties was Rs. 2,000; each of them was, therefore, liable out of that a aount fee Rs. 666-10-8. We have to see how much: was paid by each of them out of this umount. From the evidence of Mr. Bowder, the Engineer of the the Railway, it appears that two sums of Rs. 500 each ware paid up to the 19th of October 1907. There is no clear evidence as to who made these payments, that is to say, who found the funds with which this sum of Rs. 1,000 was paid. The plaintiff says in his deposition that he paid the first item of Rs. 500 out of funds in hand, by which he apparently meant the partnership funds, that is to say, the proceeds of the sale of grass. If that statement is true, then all the partners contributed that sum. As for the 2nd item there is an absence of evidence asvtowho contributed that sum. Mr. Bowdbr makes a somewhat vague statement on the point, as he says that one or other of the defendants must have paid the last six items mentioned by him. In the absence of clear evidence it must be presumed that the second sum of Rs. 500 was also paid by all the three persons; so that out of this sum of Rs. 1,000 each of the two defendants, Shiv Prasad and Shiv Tabal, must be deemed to have paid one-third, i.e., Rs. 333-5-4. Mr. Bowder's evidence shows that Shiv Prasad paid Rs. 300 more on three different dates and that Shiv Tahal paid Rs. 233-5-6. In the absence of any evidence to show that this money was paid by them out of the proceeds of the partnership business, they must be presumed to have paid the two sums mentioned above. Therefore, the total amount contributed by Shiv Prasad must be held to have been Rs. 633-5-4 and that contributed by Shiv Tahal Rs. 566-10-10. Shiv Prasad and Shiv Tahal were, as I have said above, liable for Rs. 666-10-8 each. Therefore, the amount contributed by Sheo Prasad was short by Rs. 33-5-4 and that contributed by Shiv Tahal was short byRs. 99-15-10. These are the amounts for which these two persons must be held liable to the plaintiff. The result is that I discharge the decree of the Court below and make a decree in the plaintiff's favour for Rs. 33-5-4 against Shiv Prasad and Rs. 99-15-10 against Shiv Tahal.
8. Having regard to all the circumstances of the case, I direct that the parties bear their own costs of the whole litigation including the costs in this Court.