Yogambal Boyee Ammani Ammal vs Naina Pilai Markayar

Sankaran Nair, J.—The plaintiff deposited a certain amount u/s 310A Civil Procedure Code, (Act XIV of 1882) to set aside the sale of the

lands in execution of a money decree against the defend ant. The amount was paid to the decree holder, the sale was set aside and the defendant is

alleged to have got back his lands : the decree debt due by her having been extinguished by the plaintiff''s payment. At the time the payment was

made by the plaintiff, ho was in possession of the property claiming it as reversioner and as assignee of one Lakshmana Iyer, to whom, the

defendant who, according to the plaintiff, had only a life-interest in the property, had assigned it on lease or mortgage, but his right to possession

was disputed by the defendant on the grounds that ho was not a reversioner and his right as lessee or mortgagee had been extinguished about the

12th March, long before the date of payment. In a suit which was pending at the time of payment, but decided afterwards, the defendant''s

contention was upheld. The plaintiff now sues to recover the amount.

It was not seriously pressed upon us that Section 69 of the Indian Contract Act applied. The defendant was not bound to pay the debt for

which her property had been already sold and she had not disputed the validity of the sale. ""Does Section 70 apply?

To found a right of demand the defendant must have enjoyed the benefit of the plaintiff''s payment, the payment itself must have been lawful, and

the plaintiff must have done it for the defendant not intending to do so gratuitously.

On the strength of the decision in Syamala-rayudu v. Subbarayudu 21 M.k 143 the Judge had held that the plaintiff''s payment was lawful. I

think he is right. Though it has been held that the plaintiff had no interest in the property, he believed in good faith he had an interest; the defendant

was a party to the application, which was successful, and she cannot now be heard to say that the application was unlawful. The next question is

whether the plaintiff made the payment for the defendant expecting reimbursement and whether the defendant enjoyed the benefit of it. In Ram

Tahul Singh v. Biseswar Lall Sahoo 2 I.A. 131 these were the facts:

The plaintiffs therein on the 18th February 1868 purchased for Its. 8,000 in execution of a money-decree at a judicial sale after attachment, the

interest of the defendants in a sum of Rs. 35,000 deposited with the Collector as their share of the surplus proceeds of an estate sold for arrears of

revenue. The plaintiffs paid the sum of Rs. 8,000 into the Court and it was distributed among the attaching and other creditors. The revenue sale

was subsequently set aside, the estate restored to the defendants and the purchase-money including the Rs. 35,000 restored to the purchasers at

the revenue sale. Thereupon the plaintiff sued to recover the sum of Rs. 8.000 paid to the defendant''s creditors. The Judicial Committee hold they

were not entitled to recover. They observed It is not in every case in which a man has benefited by the money of another, that an obligation to

repay that money arises."" The question is not to be determined by nice considerations of what may be fair or proper according to the highest

morality. To support such a suit, there must be an obligation express or implied to repay. It is well settled that there is no such obligation in the case

by a voluntary payment by (A) of B''s debt. Still less will the action lie when the money has been paid as here against the will of the party for whose

use it is supposed to have been paid; Stokes v. Lewis 1 T.R. 20. Nor can the case of A be better because he made the payment not ex moro

motu but in the course of a transaction, which in one event would have turned out highly profitable to himself and extremely detrimental to the

person whose debts the money wont to pay.

In Abdul Wahid Khan v. Shaluka Bibi 21 C.k 406 there was a decree against the plaintiff and the defendant as the representative of one Muradi

Bibi, the original defendant in the case. The defendant alone appealed and got the decree reversed.. The plaintiff successfully claimed a moiety of

the property of the deceased and the question was whether the defendant was entitled to recover his proportion of the costs from the plaintiff on

the ground that the plaintiff had got the benefit of the reversal of the decree of the Judicial Commissioner. Their Lordships held : The proceedings

wore taken by the defendant for his own benefit and without any authority express or implied from the plaintiff; and the fact that the result was also

a benefit to the plaintiff does not create any implied contract or give, the defendant any equity to be paid a share of the costs by the plaintiff.

The case was governed by the Indian Contract Act and the decision is binding on us.

These decisions rest on well-known principles of Law. If A does anything for B under circumstances which must have shown to B that A

expected payment for his work and B chooses to adopt it and accept the benefit then B is clearly liable to pay for the benefit enjoyed. In the

language of the Contract Act the doing of the work is the offer, the adoption or ratification of the act is the acceptance. Paynler v. Williams 1 C. &

M. 810; Hart v. Mills 15 M.& W. 87; Tawle v. Gnnn 4 Bing. 448; Barber v. Brown 1 C.B.N.S. 121. A man cannot be said to adopt the act

unless it is done for him. See Bowen, L. J. Falike v. Scottish & Co. 34 Ch. D. 234.

It follows from what had been already stated that where A is himself interested in the doing of the work there is nothing to show to B that the

work is done for him or that A. expects any payment from him. The Court will not, therefore, presume that he did the work for B. Similarly where

.B had no choice in the matter bat he had perforce to take the benefit, it cannot be said that B adopted the act or accepted the benefit. Therefore,

the Courts will not hold B liable. Thus when a person who was not the solo bone-ficiary of life policy paid the premium and saved the policy from

lapsing, it was held that ho was not entitled to repayment from the other beneficiaries : In re Leslie, Leslie v. French 23 Ch. D. 552; so also a

tenant in common of a house was held not entitled to repayment of money spent on repair from the other tenant in common Leigh v. Dickinson 15

Q.B.D. 60. This is the law as stated in Smith''s Leading Cases, notes to Lampleigh v. Braithwaito Smith''s Leading Casos p. 160. The case of

Nobinkrishna Base v. Monmohun Base 9 C.L.R. 182 fakes the same view. The defendant in the case adopted the payment and availed himself of

it.

It appears to me that Section 70 in these respects lays down the same rule. The section applies where the claimant does anything for another

person, not intending to do so gratuitously, and that the other person enjoys the benefit thereof. In considering the section the learned Judges

observed in Damodara Mudaliar v. The Secretary of State for India 18 M. 88 at p. 91. ""There can be little doubt that the statement of the law is

derived from the notes to Lampleigh v. Braithwaite Smith''s Leading Casos p. 160 and perhaps indirectly from the Roman Law (see Stokes''

Introduction to Contract Act)."" The learned authors of Smith''s Leading Cases when enumerating the instances in which the requests necessary to

constitute a cause of action in the case of an executed consideration may be implied-give, as the 2nd instance where the defendant has adopted

and enjoyed the benefit of the consideration Lampleigh v. Braithwaite Smith''s Leading Casos p. 160. I entirely agree you cannot adopt and enjoy

the benefit as stated herein where you have, no option. It stands to reason and the decided cases show when a person is interested in the act he

cannot be presumed to be doing it for another or expecting payment. Therefore, he cannot be said to do anything for another person. Similarly the

section requires that the other person must enjoy the benefit thereof. No doubt, in one sense, when a person has the benefit of an act of another

person even against his will, in fact, forced upon him, he may be said to have '' enjoyed'' benefit thereof. But having regard to the fact that section

cannot be construed to impose obligations upon a person for services which though lawful he did not want to be rendered to him and to the fact

that the section only enacts the law as stated in the notes to Lampleigh v. Braithwaite Smith''s Leading Casos p. 160 and the cases referred to

therein which require that the person to be charged must have adopted it and availed himself of it, I am of opinion that a person can be said to

enjoy '' a benefit under this section only by accepting a benefit when he has the option of declining or accepting it. This is also consistent with

principle. To hold otherwise would be to go against the decision of the Judicial Committee already noticed. It is pointed out in Damodara Mudaliar

v. The Secretary State for India 18 M. 88 at p. 91 that according to Lord Bowen, even this statement of the law in Smith''s Leading Cases is too

wide in favour of the plaintiff. In the case before us, the application and the payment were made by the plaintiff u/s 310A to protect his own

interests; and there is nothing to show that the plaintiff would not have made the application even if the defendant had refused his consent. In fact

the defendant was charged with, collusion with, the decree-holder. There is no evidence to show that it was made for the defendant and in the

circumstances no such presumption can be drawn. The presumption is the other way. Nor can it be said that the defendant has enjoyed'' the

benefit of the payment by the plaintiff paying off his debt as he had no option in the matter. Her debt was discharged without his consent being

obtained and he has not adopted it. Mr. Ranga Chariar strongly relied upon the decision in Damodara v. The Secretary of State for India 18 M.

88 at p. 91. It was contended that it was decided therein that if two persons are interested in doing anything and one of them docs it, he can

recover the proportionate share of his expenses incurred in doing it from the other who has benefited by it, u/s 70 of the Contract Act. If such is

the decision it would be opposed to the decision of the Judicial Committee in Abdul Wahid Khan v. Shaluka Bibi 21 I.A. 26. But the case does

not lay down any such broad proposition. I have already pointed out that the learned Judges in that case rightly held that Section 70 introduces the

English Law as stated in the notes to Lampleiyh v. Braithwaite Smith''s Leading Casos p. 160 and that a defendant cannot be said to adopt and

enjoy the benefit '' as stated therein when he has no option of declining or accepting it. If, therefore, in that case the zemindar had no option but to

take the benefit if he wanted to use the water of the tank as before, he would not be liable. He must have been held liable, therefore, on the facts of

the case, that repairs were necessary for preservation of the tank and there would have been no water in the tank for irrigation but for such repairs,

and when, therefore, the zemindar elected to use the water available only on account of such repair, he must be taken to have adopted the

plaintiff''s act and enjoy the benefit thereof. It was also found that he was a consenting party.

With reference to the first part of the section it was rightly pointed out that the fact, that the defendant was benefited by a work, does not

necessarily show that it was done for him; and that while a plaintiff''s interests in the matter may show that he was acting on his account only, he

may also intend to act for the defendant. This is also true prima facie if the plaintiff is interested in the doing of a thing he would not be entitled to

ask the Court to presume that he did it for the defendant. But by proof of special circumstances or otherwise he might show that he would not have

done if he had no reasonable grounds to. expect payment from the defendant. The High Court, therefore, in that case called for a finding on that

question. If the tank had belonged to the zemindar only, there would be a:. very strong presumption that the repair was made for him. Even as a

co-owner if he had objected to the repairs then he could not have been held liable. The judgment in 18''. Madras concedes it. If the tank had

belonged solely to the Government then the zemindar would not have been liable, even if he had been benefited thereby. The zemindar in that ''.

case could not have repaired the tank himself. This was laid down in Civil Revision. Petition No. 273 of 1902 by Benson and Bhashynm Iyengar,

JJ., where the decision in Damodara Mudaliar v. Secretary of State 18 M. 88 at p. 91 was considered. In that case a tank which was the sole

property of Government was the source of irrigation not only for Government ryotwary lands but also for the wet inam lands of the defendant

therein. The Government claim for contribution from the defendant for the repair of the tank was disallowed and the Judges held that neither;

Section 69 nor Section 70 applied.

I do not think, therefore, that the decision : in Damodara Mudaliar v. Secretary of State 18 M. 88 at p. 91 supports the plaintiff''s contention. :

Moreover, it does not refer to the ruling of the Judicial Committee in Abdul Wahid Khan v. Shaluka Bibi 21 I.A. 26. The decree of the lower

appellate Court must be reversed and the suit dismissed with costs throughout.

Munro, J.

I agree.