Ganapatia Pillai vs Krishnaswami Pillai and Others

(20) This second appeal is preferred against the decree and judgment of the learned Subordinate Judge of Ramanathapuram at Madurai in A. S.

No. 78 of 1952, confirming the decree and judgment of the learned District Munsif in O. S. No. 178 of 1950.

(21) The suit properties originally belonged to one Vinayagam Pillai. The plaintiffs are the sons of Vinayagam Pillai by his first wife. Vinayagam

Pillai married a second wife Vellayammal in whose favour he executed a sale deed of these properties on 5-9-1930. Vellayammal died on 1935

leaving no issue. Vinayagam Pillai died on 1940 leaving the plaintiffs, his undivided sons, and his first wife who is the 5th defendant. On 7-5-1940

Vellayammal''s mother Krishnammal, claiming to be her stridhana heir, sold these properties to one Sankarapandia Thevar and eventually the 2nd

defendant purchased them under Ex. B. 4 dated 3-3-1945 from the 1st defendant, to whom Sankarapandia Thevar sold the properties in 1944.

Regarding the sale in favour of the 2nd defendant, a suit was filed in pauper form by Krishnaswami Pillai and his minor son, Sundaram Pillai, to

declare that the plaint A schedule properties belong to the plaintiffs and for recovery of possession of the same with future mesne profits.

(22) The suit was based on the question as to who would be the lawful heir of Vellayammal, whether the mother who purported to deal with the

properties, or her husband and his heirs, namely, the plaintiffs and the 5th defendant, which again depended on the form of Vellayammal''s marriage

with Vinayagam Pillai. Both the courts held that it was in the Brahma form with the result that the mother could not be a stridhana heir, but only the

plaintiffs. As Krishnammal had no title to the properties, the sales in favour of the 2nd defendant and others were held to be void and wholly

inoperative. This, however, is not the controversy which is the subject matter before us now.

(23) The present controversy before us is as to whether notwithstanding the void nature of the sale the 2nd defendant is not entitled to be paid the

amount which was utilised for the discharge of the decree debt of Vinayagam in O. S. No. 193 of 1936, on the file of the District Munsif''s court,

Sattur. In view of the plaintiffs having derived benefit by the sale of item 9 in favour of the 2nd defendant, the 2nd defendant claims entitled on

equitable grounds to be paid the sum of Rs. 900 which was the consideration which he parted with.

(24) Both the courts below did not order refund in setting aside the sale. Therefore, there was a second appeal in this court before Krishnaswami

Nayudu J. In that second appeal the point concentrated upon was S. 41 of the Specific Relief Act. Krishnaswami Nayudu J. held that there was a

conflict of decisions as to the application of S. 41 of the Specific Relief Act. Therefore, the following question was formulated for decision by a Full

Bench:

Where the sale was for the purpose of discharging the binding debt on the minor plaintiffs and the plaintiffs having had the benefit of the payment

by the property becoming free from the said attachment, are they liable to recoup the purchaser amount in respect of which they had the benefit.''''

The learned Chief Justice directed the matter to be posted before a Full Bench, and it has been heard by a Full Bench, consisting of my Lord, the

Chief Justice, Ramachandra Iyer and Ganapatia Pillai JJ.

(25) The learned Judges were of opinion that S. 39 would not apply to a case like the present one where the sale was executed by a person

claiming title adverse to that of Vinayagam Pillai, and therefore, the court would have no jurisdiction under S. 41 to direct payment of

compensation by the plaintiff to the appellant before obtaining relief as to possession. To hold otherwise would mean that a mere volunteer who

paid the debt of the plaintiff would be able to recover the same.

(26) The learned Judges proceeded further to point out that the question whether the appellant would be entitled to be paid back his moneys on

any principle like salvage, unjust enrichment or under the provisions of Ss. 69 and 70 of the Contract Act had still to be considered before the

appeal could be finally disposed of, and the learned Chief Justice has directed this appeal to be posted before me.

(27) I have been taken through the records by the learned advocates on both sides before me. I have not the slightest doubt in coming to the

conclusion that this is a case of unjust enrichment, and that the plaintiffs are bound to reimburse the second defendant in a sum of Rs. 900. In this

case all the requirements for granting relief under the doctrine of unjust enrichment stand fully made out. The consideration which D-2 paid went to

avert the sale of the land for the decree debt of Vinayagam Pillai. It stands to reason that when the plaintiffs wanted to take possession of the land,

they must pay the debt which that land was bound to satisfy by reason of it being the decree debt of Vinayagam Pillai. It is also seen that the

plaintiffs in the execution proceedings have taken time for payment of the amount. Therefore, the plaintiffs cannot be allowed to blow hot and cold

and play fast and loose and assume different postures in the course of the same proceedings or even in subsequent proceedings which directly

arose from the previous suit.

(28) This doctrine of unjust enrichment has been the subject matter of three decisions of this court, namely, Paboodan Goolabchand Vs. M.J.

Miller and Another, , Mahalingam Chettiar v. Ramanathan Chettiar, Appeal No. 665 of 1948 (Mad)and Govindarajulu Naidu and Others Vs. S.S.

Naidu alias Soundararajulu Naidu, , wherein I have dealt with the entire case law and the settled principles in England, America and India and

reproduced the following:

The doctrine of restitution may now be summed up in the language of the American Re-Statement of the Law of ""Restitution"" in Ch. 1 S. 1 at page

12 and following. A person who has been unjustly enriched at the expense of another is required to make restitution to the other. A person is

enriched if he has received a benefit. A person confers a benefit upon another if he gives to the other possession of or some other interest in

money, land, chattels, or choses in action, performs services beneficial to or at the request of the other, satisfies a debt or a duty of the other, or in

any way adds to the other''s security or advantage-saves the other from expenses or loss. The word ""benefits"" therefore denotes any form of

advantage....... Even where a person has received a benefit from another he is liable to pay therefore only if the circumstances of its receipt or

retention are such that as between the two persons, it is unjust for him to retain it. The mere fact that a person benefits another is not of itself

sufficient to require the other to make restitution therefor..... Ordinarily the benefit to the one and the loss to the other are co-extensive and the

result of the remedies given under the rules stated in the restatement of this subject is to compel the one to surrender the benefit which he has

received and thereby to make restitution to the other for the loss which he has suffered........ Where benefit and loss do not coincide the amount of

recovery is usually limited to the amount by which he has been benefited......... A person who officiously confers a benefit upon another is not

entitled to restitution therefor.

(29) This is certainly not a case of a person who conferred a benefit upon another officiously and is therefore not entitled to restitution therefor.

(30) In addition to these three decisions, the learned Advocate, Mr. Vaidheeswaran, brings to my notice the decision of the Privy Council in

Govindaram Gordhandas v. State of Gondal, 1950 2 Mad LJ 1 : AIR 1950 PC 99, wherein it is laid down: the words ""bound by law to pay"" in S.

69 of the Contract Act do not exclude those obligations of law which arise inter partes whether by contract or tort and is not confined only to

those public duties which are imposed by statute or general law. They extend to any obligation which is an effective bond in law.

(31) It is not correct to say that a person could not be ""interested in the payment of money"" within the meaning of S. 69 of the Contract Act unless

he was at the same time entitled to some legal interest in the property in respect of which such payment might be made. The words themselves do

not require that a person to be interested in a payment should at the same time have a legal proprietary interest in respect of which the payment is

made.

(32) S had become the purchaser of certain mills and was handed over possession on 9-9-1937. On 29-11-1937, S entered into an agreement by

way of sub-sale with a company under which he agreed to sell the mills to the company at the same price as that at which he bought them. Before

that date, it was found that large amounts were outstanding in respect of municipal taxes on the mills and in spite of correspondence between the

original owners and S and the company which purchased from him, the latter company was forced to pay that sum to avoid legal proceedings for

the enforcement of the statutory charge. In a suit by the company and its vendor against the original owners for the recovery of the sum so paid.

Held: the payment made can in no sense be said to be voluntary one. The company had contracted to buy the mills and they were imminently

threatened with a forced sale which would defeat its purchase. No one was disposed to pay the taxes due and so the company paid. To describe it

in such circumstances as having made a voluntary payment would involve some misuse of language. The company was also interested in the

payment of taxes though the actual sale deed in their favour was executed subsequently.

(33) The net result of this analysis is that the decrees and judgments of the lower Courts have to be modified, and the plaintiffs, before recovering

possession of the land, will have to reimburse the 2nd defendant in a sum of Rs. 900. I am not providing for interests, because the 2nd defendant

had been in enjoyment of the land, and mesne profits and interest can be equated. The decrees and judgments of the lower Courts will stand

modified accordingly.

(34) This second appeal is allowed with costs.

(35) Appeal allowed.