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Hashmi Begam and ors. Vs. Suraj Bhan, Muhammad Tawakkul HusaIn and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Judge
Reported in(1918)ILR40All555
AppellantHashmi Begam and ors.
RespondentSuraj Bhan, Muhammad Tawakkul HusaIn and anr.
Excerpt:
act no ix of 1872 (indian contract act), section 70 - sale--specified sum left with ventees for payment to mortgagees of property other than the subject of the sale--interest paid by purehqsers in addition to specified sum--gratuitous payment. - .....which had accrued, he could not plead this as a set-off against the plaintiff's claim for the unpaid purchase-money, upon the ground that there was no obligation on the vendee to pay any money to the creditor except the rs. 8,150 which had been left with him by the vendors. in second appeal to this court it has been urged that the view taken by the courts below was incorrect, and section 70 of the contract act is relied upon. that section provides that ' where a person lawfully does anything for another person, or delivers anything to him, not intending to do so gratuitously, and such other person enjoys the benefit thereof, the latter is bound to make compensation to the former in respect of or to restore the thing so done or delivered.' we do not think that this section applies to.....
Judgment:

Henry Richards, C.J. and Pramada Charan Banerji, J.

1. The point which arises in this appeal is as follows. Certain immovable property was sold for a considerable sum of money. In the sale-deed the consideration is stated to have been received in a certain way (as per details at the foot of the deed). According to this detail the vendee was to retain a sum of Rs, 8,150 for payment to a certain creditor of the vendors who had a mortgage upon other property belonging to the vendors, and, which was no part of the property sold to the vendee. Some delay seems to have taken place in the registration of the deed and, as a consequence, the vendee alleges that he did not pay the Rs. 8,150. Eventually, when he succeeded in getting the sale-deed registered, he went to the creditor and offered him the Rs. 8,150, which the creditor refused to receive because further interest had in the meantime accrued, amounting to the sum of Rs. 749 or thereabouts. The present suit was instituted by the plaintiffs to recover a portion of the purchase-money which they alleged had not been paid. The defendant admitted that a portion of the purchase-money had not been paid, but he claimed credit as against the amount that remained unpaid for the sum of Rs. 749 interest, which he alleged he had paid the creditor of the vendors. Both the courts below held that, assuming that the defendant had paid the creditor the extra sum of Rs. 749 for the interest which had accrued, he could not plead this as a set-off against the plaintiff's claim for the unpaid purchase-money, upon the ground that there was no obligation on the vendee to pay any money to the creditor except the Rs. 8,150 which had been left with him by the vendors. In second appeal to this Court it has been urged that the view taken by the courts below was incorrect, and Section 70 of the Contract Act is relied upon. That Section provides that ' Where a person lawfully does anything for another person, or delivers anything to him, not intending to do so gratuitously, and such other person enjoys the benefit thereof, the latter is bound to make compensation to the former in respect of or to restore the thing so done or delivered.' we do not think that this Section applies to the mustances of the present case. It was admitted at the bar that if the sale-deed had been silent about payment to the creditor of the vendors and that the vendee of his own motion had paid off the creditor, he could not have pleaded such payment as a set-off against the purchase money. We think that exactly the same reasoning applies to the present case. According to the sale-deed the only sum which the vendee was requested to retain out of the purchase money and pay to the creditor was the sum of Rs. 8,150. The payment of the balance was a payment gratuitously made. We have already pointed out that the property mortgaged to secure the sum due to the creditors was no part of the property sold. It may be, of course, that the plaintiffs have benefited by the payment to the creditor, but this by itself is no sufficient ground to entitle the defendant to set it off against the plaintiff's claim. We dismiss the appeal with costs.


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