Norman Kemp, Kt., Acting C.J.
1. The question for our consideration here involves the construction of a mortgage dated May 16, 1922, registered on May 30, 1922, and the terms of a rent-note passed by the plaintiff to the defendant on May 30, 1922. The facts of the case are sufficiently set out in the judgment of the lower Court. Shortly put, the plaintiff contends that his agent to discharge the mortgage has overpaid the defendant two months' interest as rent for two intercalary months. The dispute arises through the alleged difference between the mortgage and the rent note. In the lower Court the plaintiff contended that the mortgage was altered by the rent-note and in this Court he contends that the mortgage is to be construed by the subsequent rent-note. The mortgage stipulates for repayment at the end of six years and provides that interest should be reckoned according to the vernacular months taking into calculation any intercalary months. The mortgage goes on to say : ' We have received this property from you on rent for a period of six years for use. We have passed to you the rent-note thereof for Rs. 765 as interest for one year.' Then later on : ' The same has been written for a period of six years. And if the income of the rent as stated in the rent-note fixed for the interest may be received more than the fixed interest you have to credit the excess amount after payment of interest.' The last sentence is somewhat unintelligible.
2. We are of opinion that the mortgage intended to create a distinction between interest and rent. The rent was calculated on the interest, for six years. At the same time there was an obligation on the plaintiff to pay extra interest provided by the calculation on the basis of vernacular months. This is the only construction that can be given to the mortgage deed to make it consistent. The plaintiff appreciating this has attempted before us to suggest that the second part of the mortgage relating to the rent had the effect of expressing the real intention of the parties as to interest and that the words mentioned with reference to the interest in the beginning of the mortgage had been left in by mistake when the mortgage was intended to be taken by another party. On the construction which we place on the document the rent note subsequently passed is consistent with it. We, therefore, think that the plaintiff was bound to pay the two intercalary months' interest and we hold accordingly.
3. Another point requires consideration-whether the plaintiff can succeed in view of the voluntary nature of the payment. It is true that the plaintiff's agent made the payment. The agent has not been called nor does the plaintiff say that the agent was specially forbidden to pay the interest for these two months. Nor would it make any difference if the plaintiff were in a position to give such evidence, because that would not affect the nature of the payment made by the agent to the defendant which was a voluntary payment. Under the authorities a voluntary payment cannot be recovered from the party receiving it (see Section 72 of the Indian Contract Act, and the observations of Marten J. in Wolf & Sons v. Dadyba, Khimji & Co. I.L.R. (1919) 44 Bom. 631 and of the same Judge in In re Ramchandra Ganuji (1922) 29 Bom. L.R. 1167. See also the recent case of Aktieselslcabet Dampskibs Steinstad v. William Pearson and Co. (1927) 137 L.T. 533. The plaintiff's suit, therefore, seems to be misconceived. If he had any cause of action at all it would be against his agent. The money was not paid to the defendant' under protest or compulsion.
4. Further, the defendant has now given up possession of the property to the plaintiff relying on the payment. The defendant has, therefore, been induced to change his position for the worse. Taking all these circumstances into consideration we think the rule should be discharged with costs.