1. This was a suit brought by the plaintiff to recover Bs. 596-7-3 paid for redemption of the mortgage on the house belonging to the defendant.
2. In 1909, the defendant mortgaged his house to one Devidas. In 1913 he passed a sale-deed to the present plaintiff. In 1915 Devidas obtained a decree on his mortgage against the present plaintiff and the defendant, and on July 15, 1918, the plaintiff paid the amount of Rs. 422-13-3 to the mortgagee decree-holder. It appears that before this payment to the mortgagee the plaintiff had brought two suits, No. 342 of 3915 and No. 846 of 1917, against the defendant for possession of the property in suit but they were withdrawn. Subsequent to the payment he brought suit No. 378 of 1919 for possession against the defendant and obtained a decree for possession, but on appeal it was held that there was no consideration for the sale and that the plaintiff wan simply a benamidar. On September 18, 1922, the decree was passed in appeal and the plaintiff's suit was dismissed. The present suit to recover the amount paid to the mortgagee was brought on September 17, 1925.
3. The learned Subordinate Judge held that the plaintiff paid the money as alleged by him, and that he could not recover it from the defendant as it was merely a voluntary payment, and that the suit was not within time. When the case came before the lower appellate Court, the learned District Judge held that the payment of the plaintiff was a lawful payment within the meaning of Section 70 of the Indian Contract Act, but the claim of the plaintiff' in the present suit was beyond time under Article 61 of the Indian Limitation Act and did not fall under Article 97 of the Indian Limitation Act.
4. It is urged on behalf of the respondent that the finding of the lower Court that it was a lawful payment within the meaning of Section 70 is erroneous, and that having regard to the withdrawal of the two suits before the payment and the contention of the defendant in the mortgage suit that the transaction of sale was a nominal one, the payment by the plaintiff to the mortgagee was a voluntary and not a lawful payment within the meaning of Section 70 of the Indian Contract Act.
5. It is not every payment which is made for the benefit of another that the person making the payment is entitled to recover it by a suit. In Punjabhai v. Bhagwandas ILR (1928) 53 Bom. 309 : 31 Bom. L.R. 88 it was held that in ascertaining whether an act is lawfully done within the purview of Section 70 of the Indian Contract Act, it must be ascertained whether the person so acting held such a position to the other as either directly to create or by implication reasonably to justify the inference that by the act done for the other person he was entitled to look for compensation for it to the person for whom it was done. In Ram Tuhul Singh v. Biseswar Lall Sahoo it was held by the Privy Council (p. 143) :-'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.'
6. The learned District Judge relied on the decision in Serafat Ali Issan Ali ILR (1917) Cal. 691, where a payment was made by one of the judgment-debtors on behalf of another, though such person was wrongly made a party in the mortgage suit and though it was found that he had no interest in the property at all, it was held to be a lawful payment under Section 70 of the Indian Contract Act. In the present case the defendant passed a sale-deed in favour of the plaintiff. It was not set aside till the payment was made, and though the defendant raised the contention that the sale-deed was not binding on him in the mortgage suit, the question was not gone into in that suit. If the present plaintiff had made the payment after the decision of the Court that the sale was a fictitious one, the payment would not have been lawful according to the decision in Janki Prasad Singh v. Baldeo Prasad ILR (1908) All. 167. In the present case, however, the question as to the jural relation between the plaintiff and the defendant with regard to the sale-deed was not adjudicated upon in the previous suit. The defendant passed the sale-deed in favour of the plaintiff with the intention that plaintiff should redeem the mortgage on better terms as the defendant believed that the plaintiff was an agriculturist. I am inclined to hold that by reason of the sale-deed passed by the defendant in favour of the plaintiff, the latter stood in such a relation to the former as to justify the inference that he would be entitled to recover back the amount paid, and the payment made by the plaintiff was a lawful payment within the meaning of Section 70. The plaintiff is, therefore, entitled to recover the amount from the defendant if his claim is within time,
7. It is urged on behalf of the appellant that the claim is within time by virtue of Section 65 of the Indian Contract Act and Article 97 of the Indian Limitation Act, and that time would begin to run from the date of the decision in appeal when it was decided that the plaintiff's sale-deed was unenforceable. In my opinion, Section 65 does not apply to the facts of the present case, for it cannot be said that the amount sought to be recovered by the present plaintiff was an advantage under the agreement or contract which was discovered to be void. The agreement of sale was passed in the year 1913, and the payment was made in 1918. Further, the sale-deed cannot be said to have been discovered to be void in 1922 for the plaintiff knew from the very beginning that it was a sham transaction and no consideration was paid for it. It was held in the previous litigation that the plaintiff's sale-deed was sham and without consideration. Under the circumstances I think that Section 65 of the Indian Contract Act cannot have any application to the facts of the present case.
8. Article 97 prescribes limitation for a suit for money paid upon an existing consideration which afterwards fails. The present suit is in respect of payment made in the year 1918 to the mortgagee and that payment does not form part of the consideration for the sale-deed. The mortgage in favour of Devidas, wan not disclosed in the sale-deed and the amount due to the mortgagee did not form part of the consideration of the sale, but the full consideration of the sale-deed was falsely recited to have been paid in cash to the defendant. It cannot, therefore, be said that the present suit is for money paid upon an existing consideration which afterwards fails. The cases relied on on behalf of the appellant, Mussamat Basso Kuar v. Lala Dhum Singh , Jamna Das v. Najm-un-nissa Bibi ILR (1906) All. 460 and Udit Narain Misr v. Muhammad Minnat-ulla ILR (1903) All. 618, are distinguishable from the present case, for in all those cases the agreements were for consideration, and the suits were brought to recover the consideration for the agreements which were afterwards discovered to be void. In Mussumat Basso Kuar v. Lala, Dhum Singh the past debt formed part of the consideration for the agreement to convey certain property. In the second case the debt due by the husband formed part of the consideration of the mortgage which was effected by the wife in favour of the mortgagee, and in the third case the money paid by the plaintiff was the consideration of the agreement of sale passed by the defendant. In the present case the sale-deed passed by the defendant in favour of the plaintiff was a sham transaction, and it was never intended that any consideration should pass from the plaintiff to the defendant. Under these circumstances, it cannot be said that the present suit was brought for money paid upon an existing consideration which afterwards failed.
9. I think, therefore, that Article 97 of the Indian Limitation Act does not apply to the facts of the present case, and that Article 61 applies, and the present suit being brought more than three years after the date of the payment is beyond time.
10. I think, therefore, that the view taken by the lower appellate Court is right, and the appeal must be dismissed with costs.