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Mariam Vs. Narayanan Thrathar Nambooripad - Court Judgment

LegalCrystal Citation
SubjectProperty;Contract
CourtKerala High Court
Decided On
Case NumberSecond Appeal No. 472 of 1960
Judge
Reported inAIR1965Ker55
ActsContract Act, 1872 - Sections 69 and 70; Transfer of Property Act, 1882 - Sections 82, 92 and 100
AppellantMariam
RespondentNarayanan Thrathar Nambooripad
Appellant Advocate V. Krishnaswami, Adv.
Respondent Advocate M.K. Narayana Menon, Adv.
DispositionAppeal dismissed
Cases ReferredParameswara Iyer Anantha Iyer v. Rama Iyer Ananthanarayana Iyer
Excerpt:
.....& s. sirijagan, jj] third party risk gratuitous passengers - liability of insurance company held, gratuitous passengers in transport vehicles, including a motor cycle, can have coverage only when a comprehensive policy or extended policy as might be possible to be issued has been availed of by the owner of the vehicle. only in such cases, the insurance company is required to compensate. payment of premium alone can cast a corresponding duty on the insurer for rendering coverage on any such group, when they are not required to be mandatorily brought under insurance protection. [oriental insurance co. ltd. v ajaykumar, 1992 (2) ker lt 886 (f.b) is no longer good law in view of united india insurance co. ltd. v tilak singh, air 2005 sc 1576 & new india assurance co...........to recover the sum of rs. 94. 8. 6 paidby the plaintiff by way of land tax to government, for the suit property for the years 1120 to1131. the pattah for the property was in thename of the plaintiff, but the property was in possession of one poranchu from the year 1060. heassigned his rights by ext. d7 in the year 1119to the first defendant. in that year; the plaintiffsued the first defendant and her husband the seconddefendant. in o. s. 208 of 1119 for recovery of thesuit property, alleging that it was an accession tothe adjoining property mortgaged by the plaintiff;the suit was ultimately dismissed by the cochinhigh court, by ext. d.3 judgment. the plaintiff sued them again in o.s. 103 of 1124, allegingthat the property was held by them on oral lease;that suit also was ultimately.....
Judgment:

S. Velu Pillai, J.

1. This second appeal arises outof a suit to recover the sum of Rs. 94. 8. 6 paidby the plaintiff by way of land tax to Government, for the suit property for the years 1120 to1131. The pattah for the property was in thename of the plaintiff, but the property was in possession of one Poranchu from the year 1060. Heassigned his rights by Ext. D7 in the year 1119to the first defendant. In that year; the plaintiffsued the first defendant and her husband the seconddefendant. In O. S. 208 of 1119 for recovery of thesuit property, alleging that it was an accession tothe adjoining property mortgaged by the plaintiff;the suit was ultimately dismissed by the CochinHigh Court, by Ext. D.3 judgment. The plaintiff sued them again in O.S. 103 of 1124, allegingthat the property was held by them on oral lease;that suit also was ultimately dismissed by theHigh Court, so far as the suit property was concerned, by Ext. D.4 judgment. The plaintiff, having paid land tax in the meanwhile for the periodaforesaid, has sued the defendants for reimbursement. The Munsiff dismissed the suit, while theSubordinate Judge in appeal gave the plaintiff adecree. The first defendant has come up in secondappeal.

2. The first contention in second appeal was that the claim for reimbursement is not sustainable, whether under Section 69 or Section 70 of the Indian Contract Act. The first defendant has a case, that she applied for the transfer of pattah to her name soon after Ext. D.7 and that this was successfully opposed by the plaintiff. However, there has been a live dispute between the plaintiff and the first defendant as to the title to the property ever since Ext. D.7, the plaintiff trying to recover the property, alleging in the first suit, that it was held by the first defendant as an accession to the mortgaged property and in the second suit as a lessee. In these circumstances, it is clear, that the plaintiff had been paying land tax, more in support of his alleged title to the property than with an intention to benefit the defendants. The latter had no option to refuse the benefit of the payment. It is not the law under Section 70, that a benefit can be thrust on a person, to make him liable for reimbursement. In State of West Bengal v. M/s. B. K. Mondal and Sons, AIR 1962 SC 779 at p. 788 the Supreme Court said:

' 'Section 70 is not intended to entertain claims for compensation made by persons who officiouly interfere with affairs of another or who imposeon others services not desired by them......... Itis thus clear that when a thing is delivered or doneby one person it must be open to the other personto reject it. Therefore, the acceptance and enjoyment of the thing delivered or done which is thebasis for the claim for compensation under Section 70 must be voluntary. It would thus benoticed that this requirement affords sufficient andeffective safeguard against spurious claims basedon unauthorised Acts.'

The claim cannot therefore fall within Section 70.

2a. Section 69, of the Contract Act is 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.'

To exclude the operation of this Section, learned counsel for the first defendant put his argument thus. The plaintiff as the pattahdar or the registered holder of the property was the person liable to pay tax and not the first defendant who, though the real owner, was not the pattahdar. Under the revenue law, the pattahdar is the defaulter and is personally liable to Government for the tax as specified in the pattah, even though the property for which the tax is due is not in his possession, and does not even belong to him. On this reasoning the Madras High Court held in Boja Sollappa Reddy v. Vridhachala Reddy I.L.R. 30 Mad 35 that the real owner is not bound by law to pay the tax within the meaning of Section 69. Speaking with respect, I am unable to agree with this view. Even under the revenue Law, the property is liable to be proceeded against for arrears of tax due thereon. While in the case of the pattahdar the liability is personal, in the case of the owner who is not the pattahdar the liability is on his property; but I do not find any compelling reason to introduce this distinction into 'bound by law', words of general application, occurring in a rule providing for the right of reimbursement. In Govindram Gordhandas Seksaria v. State of Gondal. AIR 1950 PC 99 at p. 104 the Privy Council considered that these words 'extend to any obligation which is an effective bond in law'. The Calcutta High Court said in Mothooranath Chuttopadhya v. Kristokumar Ghose, ILR 4 Cal 369:

''It is therefore clear that that section was intended to include the cases not only of personal liability, but all liabilities to payments for which owners of lands are indirectly liable, these liabilities being imposed upon the lands held by them.' The Calcutta High Court in Joy Chand Saraogi v. Dole Gobinda Das, AIR 1944 Cal 272 expressly dissented from ILR 30 Mad 35 and also from Subramania Chptty v. Mahalingasami Sivan, ILR 33 Mad 41 which followed it. In Ittiyeanan v. Chakkunni, 12 Cochin LR 19 decided by the former Cochin High Court. Narayana Menon, J. observed that 'there is nothing in the section to show that the legal obligation should be according to the Revenue Law alone'.

I am of the view, that the defendants were bound by law to pay the tax, and on account of his personal liability, the plaintiff was interested in making the payment. These are enough to attract Section 69. ,

3. The right to a charge for the amount claimed was based on Section 82 read with Section 100, and on Section 92, of the Transfer of Property Act. The entire property, survey No, 543, has an area of 1 acre 56 cents, out of which according to the plaintiff, he is even now in possession of 29 cents and the defendants are in possession of 1 acre and 27 cents. The suit property is 1 acre and 27 cents and reimbursement claimed is of the proportionate tax paid with respect to it. Though the defendants have not accepted this the plaintiff's witnesses have sworn to it. The previous suits related only to 1 acre and 27 cents. So the plaintiff's case on this point may be accepted. For the application of Section 82 of the Transfer of Property Act, the plaintiff and the defendants are to be considered as owners of distinct portions of the property which is liable for as common debt and the plaintiff to be regarded as suing for contribution. In Rajah of Vizlanagram v. Rajah Satrucharla Somasekhararaz, ILR 26 Mad' 686 (FB) it was held, that where one of two or more co-sharers owning an estate subject to the payment of revenue to Government pays the whole revenue, he is by operation of law entitled to charge upon the share of each of his co-sharers for the realisation of the latter's share of the revenue. Whatever be the cleavage of judicial opinion in the different High Courts, this case, has been followed by a division bench of this Court in Ayyappan Raman v. Kunju Varki Ithappiri, 1957 Ker LT 656: (AIR 1958 Ker 386). The same view has been held by the Travancore High Court in Parameswara Iyer Anantha Iyer v. Rama Iyer Ananthanarayana Iyer, 19 Trav LT 7 and by the Nagpur High Court in Gulab Nathuram v, Bindra-ban Sheocharan, AIR 1941 Nag 245. As held in 1957 Ker LT 656: (AIR 1958 Ker 386) when a person interested only in a portion of the mortgaged property redeems the mortgage he derives two distinct rights, one for contribution and the other by subrogation. These rights are not mutually exclusive. On these decision, the right to a charge for the amount sued for, has to be upheld.

4. The result is, that the decree under appealis affirmed and this second appeal dismissed, I donot allow costs to the plaintiff in this Court, asI am of the view, that the plaintiff paid the taxmore to support his alleged title to the property,than to save it from being lost by sale for arrearsof revenue.


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