Report No. 13
87. Section 69.-
This section has been held to apply only to cases where the plaintiff is not only interested in the payment but is also actuated by the motive of protecting his own interest. We think that this idea is sufficiently expressed by the word 'therefore' and it is not necessary to alter the language of this section on that account.
There is a conflict of authority upon the question whether this section covers a case of contribution. One view1 is that it deals with reimbursement, which is different from contribution, and the person who is interested in the payment which another is bound by law to pay must be a person who is himself not bound to pay the whole or any portion of the money. In other words, 'being interested in the payment of money' connotes an idea different from 'being bound by law to pay'. The other view2 is that a person may be interested in making the payment notwithstanding that he is also liable to pay. In our opinion the former is the better view, and alterations should be made in the section to make this clear.
The principle of contribution is not founded on a contract but is the result of general equity on the ground of equality of burden and obligations. According to Winfield this principle is a head of quasi-contractual liability.3 There are express provisions for contribution in the Act.
Section 43 provides for contribution in the case of joint-promisors while sections 146 and 147 deal with contribution in case of co-sureties. Many cases of contribution would be covered by section 70, but there may still be cases not covered by that section or other Statutes. Some cases of contribution have been decided on general principles without reference to section 70.4 We think that it should be made clear that section 69 deals with cases of reimbursement and not those of contribution and effect should be given to the view which we have accepted as correct by some suitable change in the language. It is, however, not necessary to devote a separate section to cases of contribution not already covered by the express provisions of this or of other Acts, as such cases will be covered by the residuary section proposed by us.5
1. See Jagapathi Raju v. Sadrusanamma Arab, 39 Mad 795; and Biraj Krishna v. Purna Chandra, AIR 1939 Cal 645.
2. Ram Lal v. Khirlda Mohini, 18 CWN 113; Bepat Singh v. Shamlal, AIR 1931 Pat 234;l Vishnu Ram v. Seth Pannalal, AIR 1937 Nag 152.
3. Winfield; Province of the Law of Tort, p. 163.
4. E.g., Nihal Singh v. Collector of Bulandshahr, 38 All 237.
5. Section 72B, App I.
88. We are of the opinion, however, that there should be a separate provision for contribution between joint-tort feasors on the lines of section 6 of the Law Reform (Married Women and Tort-feasors) Act, 1935.1 The relevant part of that section may be quoted hereunder:
1. 25-26 Geo 5, C 30.
"6.-(1) Where damage is suffered by any person as a result of a tort (whether a crime or not)-
(c) any tort-feasor liable in respect of that damage may recover contribution from any other tort-feasor who is, or would if sued have been, liable in respect of the same damage, whether as a joint tort-feasor or otherwise, so, however, that no person shall be entitled to recover contribution under this section from any person entitled to be indemnified by him in respect of the liability of which the contribution is sought.
(2) In any proceedings for contribution under this section the amount of the contribution recoverable from any person shall be such as may be found by the court to be just and equitable having regard to the extent of that person's responsibility for the damage; and the court shall have power to exempt any person from liability to make contribution, or to direct that the contribution to be recovered from any person shall amount to a complete indemnity".
Since our law of Torts is not yet codified, our Courts have to rely on English Common law, but the rules of common law on the present subject are unsatisfactory and have, accordingly, been replaced by statute. The provisions of the English Act being consonant with the principles of justice, equity and good conscience, we should adopt similar rules by enacting a similar specific provision1 in our Contract Act, so long as we do not have a separate Code on the law of Torts.
1. Vide section 69A, App I.