Mariam vs Narayanan Thrathar Nambooripad

S. Velu Pillai, J.—This second appeal arises out of a suit to recover the sum of Rs. 94. 8. 6 paid by the plaintiff by way of land tax to Govern ment, for the suit property for the years 1120 to 1131. The pattah for the property was in the name of the plaintiff, but the property was in pos session of one Poranchu from the year 1060. He assigned his rights by Ext. D7 in the year 1119 to the first defendant. In that year; the plaintiff sued the first defendant and her husband the second defendant. In O. S. 208 of 1119 for recovery of the suit property, alleging that it was an accession to the adjoining property mortgaged by the plaintiff; the suit was ultimately dismissed by the Cochin High Court, by Ext. D.3 judgment. The plain tiff sued them again in O.S. 103 of 1124, alleging that the property was held by them on oral lease; that suit also was ultimately dismissed by the High Court, so far as the suit property was con cerned, by Ext. D.4 judgment. The plaintiff, hav ing paid land tax in the meanwhile for the period aforesaid, has sued the defendants for reimburse ment. The Munsiff dismissed the suit, while the Subordinate Judge in appeal gave the plaintiff a decree. The first defendant has come up in second appeal.

The first contention in second appeal was that the claim for reimbursement is not sustainable, whether u/s 69 or Section 70 of the Indian Contract Act. The first defendant has a case, that she applied for the transfer of pattah to her name soon after Ext. D.7 and that this was successfully opposed by the plaintiff. However, there has been a live dispute between the plaintiff and the first defendant as to the title to the property ever since Ext. D.7, the plaintiff trying to recover the property, alleging in the first suit, that it was held by the first defendant as an accession to the mortgaged property and in the second suit as a lessee. In these circumstances, it is clear, that the plaintiff had been paying land tax, more in support of his alleged title to the property than with an intention to benefit the defendants. The latter had no option to refuse the benefit of the payment. It is not the law u/s 70, that a benefit can be thrust on a person, to make him liable for reimbursement. In State of West Bengal Vs. B.K. Mondal and Sons, at p. 788 the Supreme Court said:

'' "Section 70 is not intended to entertain claims for compensation made by persons who officiouly interfere with affairs of another or who impose on others services not desired by them......... It is thus clear that when a thing is delivered or done by one person it must be open to the other person to reject it. Therefore, the acceptance and enjoy ment of the thing delivered or done which is the basis for the claim for compensation under Sec tion 70 must be voluntary. It would thus be noticed that this requirement affords sufficient and effective safeguard against spurious claims based on unauthorised Acts."

The claim cannot therefore fall within Section 70.

2a. Section 69, of the Contract Act is as follows:

"A person who is interested in the payment of money which another is bound by law to pay, and who therefore pays it, is entitled to be reimbursed by the other."

To exclude the operation of this Section, learned counsel for the first defendant put his argument thus. The plaintiff as the pattahdar or the registered holder of the property was the person liable to pay tax and not the first defendant who, though the real owner, was not the pattahdar. Under the revenue law, the pattahdar is the defaulter and is personally liable to Government for the tax as specified in the pattah, even though the property for which the tax is due is not in his possession, and does not even belong to him. On this reasoning the Madras High Court held in Boja Sollappa Reddy v. Vridhachala Reddy ILR 30 Mad 35 that the real owner is not bound by law to pay the tax within the meaning of Section 69. Speaking with respect, I am unable to agree with this view. Even under the revenue Law, the property is liable to be proceeded against for arrears of tax due thereon. While in the case of the pattahdar the liability is personal, in the case of the owner who is not the pattahdar the liability is on his property; but I do not find any compelling reason to introduce this distinction into ''bound by law'', words of general application, occurring in a rule providing for the right of reimbursement. In Govindram Gordhandas Seksaria v. State of Gondal. AIR 1950 PC 99 at p. 104 the Privy Council considered that these words "extend to any obligation which is an effective bond in law". The Calcutta High Court said in Mothooranath Chuttopadhya v. Kristokumar Ghose ILR 4 Cal 369:

''''It is therefore clear that that section was intended to include the cases not only of personal liability, but all liabilities to payments for which owners of lands are indirectly liable, these liabilities being imposed upon the lands held by them." The Calcutta High Court in Joy Chand Seraogi and Another Vs. Dole Gobinda Das and Others, expressly dissented from ILR 30 Mad 35 and also from Subramania Chptty v. Mahalingasami Sivan, ILR 33 Mad 41 which followed it. In Ittiyeanan v. Chakkunni, 12 CLR 19 decided by the former Cochin High Court. Narayana Menon, J. observed that "there is nothing in the section to show that the legal obligation should be according to the Revenue Law alone".

I am of the view, that the defendants were bound by law to pay the tax, and on account of his personal liability, the plaintiff was interested in making the payment. These are enough to attract Section 69. ,

The right to a charge for the amount claimed was based on Section 82 read with Section 100, and on Section 92, of the Transfer of Property Act. The entire property, survey No, 543, has an area of 1 acre 56 cents, out of which according to the plaintiff, he is even now in possession of 29 cents and the defendants are in possession of 1 acre and 27 cents. The suit property is 1 acre and 27 cents and reimbursement claimed is of the proportionate tax paid with respect to it. Though the defendants have not accepted this the plaintiff''s witnesses have sworn to it. The previous suits related only to 1 acre and 27 cents. So the plaintiff''s case on this point may be accepted. For the application of Section 82 of the Transfer of Property Act, the plaintiff and the defendants are to be considered as owners of distinct portions of the property which is liable for as common debt and the plaintiff to be regarded as suing for contribution. In Rajah of Vizlanagram v. Rajah Satrucharla Somasekhararaz, ILR 26 Mad 686 it was held, that where one of two or more co-sharers owning an estate subject to the payment of revenue to Government pays the whole revenue, he is by operation of law entitled to charge upon the share of each of his co-sharers for the realisation of the latter''s share of the revenue. Whatever be the cleavage of judicial opinion in the different High Courts, this case, has been followed by a division bench of this Court in Ayyappan Raman and Others Vs. Kunju Vakki Ithappiri and Others, . The same view has been held by the Travancore High Court in Parameswara Iyer Anantha Iyer v. Rama Iyer Ananthanarayana Iyer, 19 Trav LT 7 and by the Nagpur High Court in Ayyappan Raman and Others Vs. Kunju Vakki Ithappiri and Others, when a person interested only in a portion of the mortgaged property redeems the mortgage he derives two distinct rights, one for contribution and the other by subrogation. These rights are not mutually exclusive. On these decision, the right to a charge for the amount sued for, has to be upheld.

The result is, that the decree under appeal is affirmed and this second appeal dismissed, I do not allow costs to the plaintiff in this Court, as I am of the view, that the plaintiff paid the tax more to support his alleged title to the property, than to save it from being lost by sale for arrears of revenue.