1. The present proceedings arise out of First Appeal No. 79 of 1922 of this Court from the decree in which an appeal was filed before their Lordships of the Privy Council as Privy Council Appeal No. 12 of 1925. Their Lordships of the Privy Council decided the appeal, reversed the judgment of this Court but left one point to be determined by this Court and that point] is, whether in the circumstances of the case, the plaintiffs cannot recover possession of the property decreed to them except on payment of a sum of Rs. 7,200 and interest thereon or any other sum?
2. The judgment has been reported in the local law journal (1931) A.L.J. 453 Munni Lal v. Tirloki Nath and is of course also on the record. The facts are given there and we shall not state them in detail again.
3. Two questions have been argued before us. The first is whether the claim on behalf of the descendants of Gokul Nath comes within the purview of Section 69 of the Indian Contract Act? and secondly, if it does, whether the defendants can insist on being paid as a condition precedent to the plaintiffs getting possession?
4. On the first point we do not feel any difficulty in holding in favour of the defendants. Section 69 of the Indian Contract Act runs as follows.
A person who is interested in the payment of money which another is bound by law to pay and who therefore, pays it, is entitled to be reimbursed by the other.
5. In the litigation that took place at the instance of Narain Singh and which ended with the decree in his favour in this Court on 18th January, 1912, (page 292) there can be no doubt that the title of Gokul Nath's mother Kashi Dai was entirely negatived. There were two judgments and each party relied on one of them. For the defendants it was argued that the judgment of 18th April, 1995, (page 221) operated as res judicata against the plaintiffs and on behalf of the plaintiffs it was contended that the judgment of 18th January, 1912, (page 292) operated as res judicata. The Court of first instance held that the later judgment operated as res judicata. This Court held that the earlier judgment operated as res judicata and their Lordships of the Privy Council held that the first Court was right.
6. There can be no doubt that it was a difficult proposition of law to decide, viz., whether in spite of the decree given to Narain Singh, the question of title was or not open as between the defendants?
7. This Court thought that the judgment: in Narain Singh's favour, although it allowed Narain Singh to sell the property in suit as the property of Amar Nath, left the question of title open as between the heir of Amar Nath and the heirs of Kashi Dei and her son Gokul Nath. In their judgment which was reversed by their Lordships of the Privy Council, the learned Judges held that the payment by Gokul Nath was a payment made in good faith and in the belief that his title to the house was a good one (see page 97 of the printed record). It is impossible to believe that Gokul Nath would go and raise money on the security of his own property, besides the property in suit, and pay the large sum of Rs. 7,200 to Narain Singh, if he had not believed that the judgment obtained by Narain Singh did not settle the question of title as between himself and Amar Nath's heirs.
8. That being the case, the question is whether Gokul Nath acted as a person interested in payment within the meaning of Section 69 of the Indian Contract Act?
9. There are numerous cases including a a decision of their Lordships of the Privy Council in which it has been held, in effect, that the words 'a person who is interested' do not mean that the person who makes the payment must prove that he had such an interest as would stand the test of a judicial trial. The decisions point to the conclusion that all that is necessary for a person making a payment to recover it is that he should really believe and honestly believe that he must make the payment in his own interest. If we accept this interpretation, we should have no hesitation in holding that Gokul Nath came within the rule of law.
10. In the case of Dakhina Mohan Roy v. Saroda Mohan Roy 21 C. 142 : 20 I. A. 160 : 6 Sar. 366 : 17 Ind. Jur. 576 (P. C.), the plaintiff paid the money when he had a decree in his favour, which decree was subsequently reversed in appeal. At page 148 Page of 21 C.---[Ed.] of the report their Lordships of the Privy Council are reported to have said:
Now, it seems to their Lordships to be common justice that when a proprietor in good faith pending litigation makes the necessary payments for the preservation of the estate in dispute, and. the estate is afterwards adjudged to his opponent,, he should be recouped what he has so paid by the person who ultimately benefits by the payment, if he has failed through no fault of his own, to reimburse himself out of the rents.
11. It has been argued that this case does not apply because Gokul Nath had the judgment of this Court dated 18th January, 1912, before him and as a sane person should have seen that the judgment took away any vestige of title that might have otherwise remained in him. We have however already met this point and have shown that in spite of this judgment Gokul Nath had occasion to believe and did believe that the judgment was not conclusive as between the defendants and that the earlier judgment yet stood in his favour.
12. Several other cases, viz. Tulsha Kunwar v. Jageshar Prasad 28 A. 563 : 3 A. L. J. 372 : A. W. N. (1906) 114.; Khushal Singh v. Khawani Lal A. W. N. (1906) 282.; Bindubashinee Dassee v. Harendra Lal Roy 25 C. 305 : 2 C. W. N. 150, and Radha Madhub v. Sasti Ram 26 C. 826, have been Cited on behalf of the defendants.
13. As against these cases, the learned Counsel for the plaintiffs has cited three cases decided by this Court, viz, Janki Prasad v. Baldeo Prasad 30 A. 167 : A. W. N. (1908) 58 : 5 A. L. J. 163.; Khuddo v. Durga Prasad 3 A. L. J. 729 and Chedi Lal v. Bhagwan Das 11 A. 234 : A. W. N. (1889) 67.
15. We have examined all the cases cited by either side. These cases may be divided into two lots. In one set of cases, it was found that the person who made the payment was actually interested in making the payment and did make the payments in good faith. In the other set of cases it was found, and in this set come the cases cited on behalf of the plaintiffs, that where the plaintiff knew perfectly well and had no occasion to believe otherwise, that he had no vestige of title under which he could make a payment, he could not recover.
16. There is no difficulty really in the law itself, but the difficulty arises in the application of it to the particular facts of a case. We are of opinion that Section 69, as interpreted by their Lordships of the Privy Council in Dakhina. Mohan Roy v. Saroda Mohan Roy 21 C. 142 : 20 I. A. 160 : 6 Sar. 366 : 17 Ind. Jur. 576 (P. C.), does apply and Gokul Nath was interested in making the payment and if he had brought a suit within the period of limitation, the plaintiffs could not possibly have resisted it on the ground that they were not bound to reimburse him.
17. The second point raised is of some difficulty and no case has been cited on behalf of either side in support of the arguments advanced.
18. The argument on behalf of the defendants is that Section 69 is based on equitable principles and that no question of limitation arises when the claim is made by the defendants. On the ether hand, the argument for the plaintiffs is this. Supposing that Section 69 applied, it gave only a personal remedy to Gokul Nath against the [heirs of Amar Nath and there was no charge in favour of Gokul Nath on the particular property now in suit. It is further argued that there being no charge, it was open to Gokul Nath, if he had brought a suit to recover his money, to realise it by sale of any property belonging to the heirs of Amar Nath and, therefore, it cannot be said that the payment is particularly connected : with the property now in suit and with no other property.
19. There is a difference of opinion among the High Courts of India as to whether a person, who makes a payment on account of another, in respect of an immoveable property, acquires or not a lien or charge on the property so saved, by way of a salvage lien. In this High Court the principal case is that of Chitor Mal v. Shib Lal 14 A. 273 : A. W. N. (1892) 117, and the same view is taken in Calcutta in Kinu Ram v. Mozaffar Hussain 14 C. 809. In Madras a contrary view was taken and a charge was granted and Bombay followed Madras. In Bombay however, a contrary view was taken later on and in accordance with the view of the Allahabad High Court, in England no charge is allowed (see Coote's Law of Mortgage, 1927, page 1381). As members of the Allahabad High Court, we are bound to follow the Full Bench decision of this Court and must hold that no charge is created by the payment. That being so, it appears to us that it is not open to the defendants to say that this particular property now in suit must make good the money which Gokul Nath was entitled to recover at the hands of the heirs of Amar Nath.
20. We decide accordingly, and hold that the plaintiffs are entitled to a decree for possession as was granted to them by their Lordships of the Privy Council without any condition sought to be attached by the defendants. We see no reason to alter the order as to costs as made by the Subordinate Judge whose judgment was ultimately upheld by their Lordships of the Privy Council, As to further costs incurred since the case was remitted to this Court it should follow the event and, therefore, we direct that the defendants shall pay the costs of the plaintiffs of the present hearing.