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Pheku Ram Mali Vs. Ganga Prasad and anr. - Court Judgment

LegalCrystal Citation
Subject Civil
CourtAllahabad
Decided On
Reported inAIR1940All98
AppellantPheku Ram Mali
RespondentGanga Prasad and anr.
Excerpt:
- .....the year 1933 fell into arrear and the government forfeited a sum of rs. 1333 out of the security money deposited by the plaintiff. the present suit is for the recovery of this sum from both the defendants.2. it is conceded that the license had been obtained by defendant 1 in his own name and it continued in his name. as already stated, the security money in deposit with the government belonged to the plaintiff, and it was allowed to remain in deposit with the government at the request of defendant 1 before defendant 2 was taken as a partner by defendant 1 in the liquor shop. evidently there was no privity of contract between the plaintiff and defendant 2. defendant 1 incurred a liability to repay this money to the plaintiff when the latter allowed it to remain in deposit with the.....
Judgment:

Ganga Nath, J.

1. This is an appeal by defendant 2 against the decision of a learned Single Judge of this Court. It arises out of a suit brought against him and Hathi Prasad, defendant-respondent 2, by Ganga Prasad, plaintiff-respondent, for declaration that the money in deposit with the Government belonged to him and for recovery of Rs. 1333, which the Government had realized out of it on account of certain dues payable by defendant 1. Defendant 2 contended that the plaintiff had no cause of action against him and he was not liable for any money. Both the lower Courts have decreed the suit against both the defendants. The decree of the lower Courts was confirmed by the learned Single Judge. A license for a liquor shop was obtained by the plaintiff benami in the name of defendant 1. The plaintiff deposited Rs. 1636 as security with the Government. The plaintiff severed his connexion with the shop in 1928. The money was however allowed to remain in deposit with the Government at the request of defendant 1, in whose name the license continued. Some time after 1928 defendant 1 took defendant 2 as a partner in the shop. The licensing fee due on account of the year 1933 fell into arrear and the Government forfeited a sum of Rs. 1333 out of the security money deposited by the plaintiff. The present suit is for the recovery of this sum from both the defendants.

2. It is conceded that the license had been obtained by defendant 1 in his own name and it continued in his name. As already stated, the security money in deposit with the Government belonged to the plaintiff, and it was allowed to remain in deposit with the Government at the request of defendant 1 before defendant 2 was taken as a partner by defendant 1 in the liquor shop. Evidently there was no privity of contract between the plaintiff and defendant 2. Defendant 1 incurred a liability to repay this money to the plaintiff when the latter allowed it to remain in deposit with the Government as security on behalf of defendant 1 at his (defendant l's) request. It is contended for the respondents that, as defendant 2 has been benefited by this money he is liable to pay it. Defendant 2 has not, been benefited; but, even if he had been, he would be under no obligation to repay it. As is observed in the judgment of the Privy Council in Ram Tuhul Singh v. Biseswar Lal Sahoo (1874-75) 2 IA 131:

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 consideration 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.

3. It was further contended by learned Counsel for the respondents that it was not a case of voluntary payment, but the plaintiff was forced to pay and therefore he is entitled to recover the money from defendant 2. But that is not so. No payment has been made by the plaintiff. The money was in deposit as defendant l's security for his license. The Government forfeited a portion of it on account of arrears due from him. Defendant 2 had nothing to do with the Government, which could not recover anything from him. The plaintiff left this money for the benefit of defendant 1 and as his security money. The money was forfeited as such.

4. It was further contended for the respondents that this sum should be treated as a partnership debt and both the defendants, who were partners in the shop, should be held liable. This contention is without force, because the liability for this money had been incurred by defendant 1 before the partnership between him and defendant 2 came into existence and it was never made a partnership debt. There being no privity of contract between the plaintiff and defendant 2 and no equity in favour of the plaintiff against defendant 2, the plaintiff has no right to recover any money from defendant 2. In the result, the appeal is allowed, the decrees of the learned Single Judge and the lower Courts against defendant 2 are set aside and the suit against defendant 2 is dismissed. The appellant will get his costs from the plaintiff throughout.


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