P.V. Muthuswami Ayyar vs A. Velammal

Horwill, J.—The petitioner became the owner of a half share in a well which had long been in disuse. There were two other co-sharers, each

of whom had a quarter share in the well. The plaintiff was in a position to make the necessary expenditure to put the well into repair; and he sent

notice to the other two sharers asking them to contribute towards the repair of the well, so that they would all be able to use it and with its water

raise a second crop on the land�which they had not been able to do hitherto. One of the sharers whose share was subsequently acquired by the

petitioner said that he was not interested in the well because his land was heavily mortgaged. The respondent said that she did not propose doing

anything in the matter; but that if the plaintiff chose to do it she had no objection. The petitioner sent demands to her for payment of contribution

before the work was started; but she did not reply. Later on, while the work was being executed, he sent further notices to which she replied that

she could not contribute. The petitioner thereupon completed the work and filed this suit for contribution from the respondent, claiming u/s 70 of

the Contract, Act. The lower Court held that although the respondent stood to benefit by the work and that the petitioner did not intend to do the

work gratuitously, yet he found that it could not be said that the petitioner did the work"" for the respondent."" He therefore dismissed the suit.

The argument of the learned District Munsiff is supported by some observations in Viswanatha Vijaya Kumara Bangaroo v. R.G. Orr (1917) 45

I.C.786, to this effect:

Section 70 of the Contract Act does not apply to cases where a person does an act for his own benefit and that act incidentally benefits his

neighbour or any other person. In such cases the latter need not pay for the extent of the benefit derived by him from the act.

A person claiming contribution from another u/s 70 of the Contract Act must prove that he did some act for the latter. An act cannot be described

as done by one person for another, unless it can be shown that, but for the existence of that other''s interest, it would not have been done.

It was held that the repairs had been executed by the plaintiffs in that case mainly for their own benefit, although the defendants were also benefited

by them. The suit was, however, dismissed, it being held that although the defendants had benefited, they were not liable u/s 70 of the Contract

Act. It seems to me that this is no longer good law in view of the Full Bench decision of this Court in S. Srirama Raja and Others Vs. The

Secretary of State for India in Council, now the Province of Madras, . The learned Judges were there considering a claim by the Government from

certain Shrotriamdars, who equally with the Government had been enjoying water from a certain tank which the Government had repaired after

notice to them. The Shrotriamdars had replied that they had no objection to the execution of the work by the Government; but they objected to

making any payment towards it as they had never done so in the past. The learned Judges considered the various Madras cases dealing with the

subject and approved entirely of the decision in Saptharishi Reddiar and Others Vs. The Secretary of State for India, , a similar case of a claim by

the Government to a contribution for the repair of a tank. Both in S. Srirama Raja and Others Vs. The Secretary of State for India in Council, now

the Province of Madras, , and Saptharishi Reddiar and Others Vs. The Secretary of State for India, , the learned Judges had no doubt that the

Government had repaired the tank for the other parties using its water as well as for itself. The learned advocate for the respondent seeks to

distinguish between these cases and the present case by pointing out that the Government has certain responsibilities in the matter of keeping tanks

in repair and ensuring that all persons entitled to water from the tank shall not be deprived of it by reason of the tank''s falling into disrepair. These

decisions were not, however, based on the special responsibility of the Secretary of State. The argument accepted was equally applicable to any

claim by a co-owner for contribution towards the expenses of the repair of a common irrigation source. Applying that principle to the present case,

this well being a joint source of irrigation of the plaintiff and the defendant, the plaintiff would be entitled to sue for contribution from the defendant

provided that the other ingredients of Section 70 are to be found.

In order that the plaintiff should succeed in the claim u/s 70 of the Contract Act he would have to prove (1) that he had repaired the well for the

defendant; (2) that he did not intend to do so gratuitously; and (3) that the defendant enjoys the benefit of the repair. I have already held that the

petitioner did the work for the respondent. It is clear that he did not do so gratuitously. The only other question for consideration is whether the

defendant enjoys the benefit of the work done. In his deposition the plaintiff said-

I have provided means for irrigation of the defendant''s land with the well water. The baling, fixture I use could be employed by her once in four

days. Defendant has not yet used the well water for irrigating the land. I told Velammal''s (defendant''s) lessees that they could take water to her

land if she pays her contribution towards the repairs.

The defendants and her lessees are therefore unable at present to take any water from the well, firstly because a picotah and other apparatus

would be necessary before they could do so, and also because the plaintiff is not willing and has not been willing to allow the defendant and her

lessees to use the water unless they contribute. It cannot be said that the defendant is enjoying the water, merely because she could enjoy it if she

chose to spend more money and to pay the contribution that the plaintiff is demanding. It is only after she or her lessees utilise the water from the

well that they would be liable u/s 70 of the Contract Act.

The defendant was therefore entitled to succeed, although on a different ground from that on which the lower Court dismissed the suit. The

petition is dismissed, but in the circumstances without costs.