John Edge, Kt., C.J.
1. A difficulty has been caused in this case by the somewhat vague way in which the claim is preferred. It may be doubtful whether the plaintiff intended to imply that the defendant had collected the rents of the one-third share as a volunteer, or whether he had undertaken to collect them as a matter of contract.
2. If as a volunteer, he could not be made liable for any greater amount than ho actually collected. As volunteer, there would have bean no contract to collect. If, on the other hand, he undertook to collect as a matter of agreement based on consideration, it appears to me that he. would be liable for the rents ho actually collected, subject to all just deductions, and also liable in damages for any rents he undertook to collect, and which by reason of his negligence were lost to the plaintiff at the commencement of the action, either by reason of their being barred by statute, or some other cause.
3. If the Court below finds he was merely a volunteer, it appears to me that the question of negligence cannot be inquired into, and the only account to be taken would be as to whether, after all just deductions, the defendant has actually accounted for the rents which be did, as a matter of fact, receive. If, on the other hand, the collections were based on contract, the lower Court should find whether he was guilty of negligence; and, if guilty of negligence, whether the plaintiff lost his right to recover at the date of the commencement of the action any and which of the rents by reason of such negligence. In the latter event, in the event of its being found that there were rents relating to the one-third, which the defendant had contracted to collect, and which had been lost to the plaintiff at the date of the commencement of this action by reason of the negligence of the defendant, the defendant should be held liable for those rents, less such fair allowances as would have to be made if such rents had been collected; and also for the rents, if any, of the one-third which he has collected and not accounted for, less the amount of revenue, cess, &c;, together with reasonable expenses, and a reasonable allowance for the trouble of collecting. Ten days will be allowed for any objections.
4. I concur in the order of remand.
5. On the remand, the District Judge recorded findings in the following terms:
Neither the defendant Balwant Singh nor his father was appointed lambardar when the lease was given, but they continued to assert their rights to collect the rents of Bhupat's share as well as of the two-thirds of which they were lessees. It was not incumbent on the defendant to collect the rent of Bhupat's share: he might have refused to have anything to do with it, and if he had, he could not have been forced to collect. In this light, therefore, the defendant collected as a volunteer. If the defendant be looked on as a volunteer, and therefore liable only for the rents he is shown to have realized, nothing is due to the plaintiff for the years in suit, for it appears from the evidence that in each of the years the actual collections fell short of the expenses. I do not think it can be contended that the defendant collected in pursuance of a contract or agreement, either express or implied. On the contrary, it appears from the documentary evidence that the plaintiff has all along, but in vain, endeavoured to assert his right to collect from Bhupat's one-third....It should be mentioned that there is no actual division of the land or tenants into shares: the tenants are common to the thoke: joint collections are made and profits divided according to the shares, after deduction of expenses. I would submit that the defendant is not a mere volunteer who undertook, owing to the plaintiff's apathy, to collect the rents of his shares as well as of his own. Nor did he collect in pursuance of a contract. He is more in the position of an intermeddler who collected in defiance of the plaintiff's wishes. If I am restricted to the alternative indicated in the judgment of the High Court, I find that the defendant collected as a volunteer, and that nothing is due from him to the plaintiff. But if I am not so restricted, I find that the defendant collected neither as a volunteer nor as a matter of agreement based on consideration, but as an intermeddler, and that he was rightly held liable by the Assistant Collector for profits calculated on the rent-roll, minus 10 per cent. allowed him for cost of collection.
6. Upon the return of these findings the case came before Edge, C. J., and Straight, J., for disposal.
7. The parties were represented as before.
John Edge, Kt., C.J.
8. We must take these findings as they are, that the collection expenses exceeded the amount collected. An intermeddler cannot be liable for the money he has not collected. He can only be liable for the money not collected if there was any duty cast upon him to collect that money. But hero, from the very commencement of the suit, it appears that the defendant was not a lambardar, and cannot be made liable. The appeal is decreed with costs in accordance with the remand.
9. The defendant in this suit stands in the position of an ordinary person who has received money for and on account of another, and upon whom vests the obligation and duty to pay to such other the amount of money so received. Such person may acquit himself of it in one of two ways: either by paying the actual money received, or by paying an equivalent sum of money to such person. In the present case the findings are that no doubt the defendant collected and received profits on the plaintiff's behalf, but nevertheless that the expenses in regard to the collection of those profits were far in excess of the amount of profits so collected. Upon that finding I think the plaintiff's claim is sufficiently answered; and having regard to the rule of law laid down by the learned Chief Justice in the order of remand, we must accept the findings, and upon these findings the plaintiff's suit failed and the appeal must succeed, and, the decision of the lower Court being reversed, the plaintiff's suit in regard to those profits will stand dismissed with costs in all the Courts.