JUDGMENT
1. The plaintiff in each of the suits is the appellant. The plaintiff’s husband Manicka Gounder, Deivasigamani the respondent in S.A. No. 68 of 1969 and Velu Gounder were brothers. They partitioned their properties and were in separate enjoyment of their shares. The plaintiff’s husband died about ten years prior to suit, leaving the plaintiff to succeed him. The plaintiff filed two suits (1) O.S. 518 of 1963 against Velu Gounden and (2) O.S. 519 of 1963 against Deivasigamani out of which the above second appeals have arisen, claiming Rs. 172-50 in each of the suits. The case of the plaintiff is that on 12-8-1957 partition koor chits were executed by all the sharers and each of them took a copy thereof but they were unstamped and unregistered. About two years ago the plaintiff presented the said partition koor chit for validation; but the revenue authorities summoned the other koor chits also from the other sharers and levied the stamp duty and penalty. The case of the plaintiff is that she was called upon to pay the entire duty and penalty and that she paid the entire stamp duty and penalty levied amounting to Rs. 690 on 31-8-1962 when the revenue authorities demanded payment. The present suits are for contribution calling upon the defendants to pay a fourth share, namely, Rs. 172-50 each.
2. The defendants filed written statements contending that the documents were validated only at the instance of the plaintiff and therefore the plaintiff is not entitled to recover the share of the amount claimed; and in any event the share of penalty cannot be recovered and that the suit has been instigated by the other brother Annamalai.
3. The trial court decreed the suits holding that the defendants are liable to pay their share of the amount as claimed in the plaints. Two appeals A.S. No. 115 of 1966 and A.S. No. 116 of 1966 were filed by the defendants in each of the suits and the contention was that they are not liable to contribute their share. The learned Judge relying upon the judgment in Sundaramireddi v. Pattabiramireddi, 58 Mad LW 461= 1945-2 Mad LJ 253 = (AIR 1946 Mad 50), reversed the decision of the trial Court. The headnote in this decision runs as follows-
“Where in respect of a partition document to which two brothers were parties and no duty was paid and subsequently in proceedings in Court one of them was compelled to pay the stamp and penalty in respect of that document he would not be entitled to recover a share of that amount from the other. Section 44 was not intended to enable one of several persons who were under a common duty to pay the proper stamp in proportionate share to claim recovery of the proportionate amount of the duty or penalty, the whole of which he was afterwards obliged to pay owing to the common default.”
Kuppuswami Iyer, J. followed an earlier decision of this Court in Raman Chetti v. Nagappa Chetti, 2 Mad LW 1024 = (AIR 1916 Mad 672).
4. In a later decision of a Division Bench in Subramania Chettiar v. R. D. O. Devakottah, Ramanathapuram, 1956-2 Mad LJ 126 = (AIR 1956 Mad 454), there is a reference at p. 133 to the proper procedure to be followed in such cases.
4A. The following passage may be usefully referred to:
” Where several persons jointly execute a document, the Collector can proceed under Section 40 and 48, against any of them as they are all jointly and severally liable. He is not bound to collect the prorate shares from each. That pro rata division is a matter for them to effect amicably or get settled in suits for contribution, or, by moving the Court to include in its order of costs where suits and proceedings are pending. That Section 29 will not bind the Collector under Sections 40 and 48, is not only clear from the fact that that section and Section 44 relate only to rights between the parties….”
The above passage is an authority for the position that a suit for contribution lies where one of the parties to a koor chit pays the entire stamp duty thereon. I hold that the same principles will apply to penalties as well. The present suit seeking to call upon the other executants to contribute is maintainable.
5. In this view the claim in each of these suits is maintainable and the plaintiff is entitled to a decree for the sums claimed. The second appeals are allowed. There will be no orders as to costs. No leave.
