1. One Viyyanna died without issue in November, 1915, leaving a widow, Saradamba, who is the present defendant. Viyyanna.'s sister, Bayamma, upon his death took possession of his estate, which included about six acres of land, on behalf of her minor sons under a will alleged to have been executed in favour of the boys by Viyyanna on the 17th July, 1915. In O.S. No. 885 of 1920 on the file of the Principal District Munsif's Court, Tanuku, the widow sued for recovery of the property together with mesne (profits on the ground that the will was a forgery, and obtained a decree on 6th February, 1922. Of Bayamma's sons, the elder, Lachanna, died during the suit and the younger brother is the present plaintiff. He has brought the suit, out of which this appeal arises, to recover from Viyyanna's estate in the defendant's hands a sum of Rs. 5,000 and odd on the ground that he paid this amount to Viyyanna's creditors while he and his brother were in possession of the estate. The payments alleged are four in number and further particulars of them will be found in the schedule attached to the plaint. The learned Subordinate Judge has found that the payments alleged are true and that, since the plaintiff made them in good faith, he is entitled to be reimbursed from the estate. The defendant appeals against a decree framed in these terms.
2. It is necessary in the first instance to decide what is the true foundation for a suit of this character, and in what circumstances, apart from the question of proof of the debts, the plaintiff can succeed. Mr. Varadachari for the plaintiff, now respondent, suggests that every suit for reimbursement of such payments falls into one of three categories:
(1) Where the person making the payment may be deemed to represent the estate, as in the case of a trustee or executor de son tort;
(2) Where the payment is necessary for the preservation of the property;
(3) Where the payment is made on behalf of the defendant and there is an implied contract for reimbursement. Suits of this character are provided for by Sections 69 and 70 of the Contract Act.
3. He concedes that class (3) has no application to the present suit, and that class (2) will only apply where the debt is for instance a mortgage decree under which the sale of the property has to be averted. The claims, he argues, fall under class (1), the payments made being recoverable on the ground that the plaintiff made them as representing the estate. In order to make good this position, it is further admitted that the Court must be satisfied of the plaintiff's bona fides, embracing in that term not only his good faith in making the payments in the interests of the estate but also his belief in his own title to the estate. The question first arising therefore is whether that good faith may be presumed or has been proved.
4. Upon this point the case of the appellant is that, in the litigation by which the defendant recovered the property, it was found that the will was a forgery and that the plaintiff and his brother were privy to its fabrication. The respondent's case is that they were innocent instruments in the hands of others, or at least that there is no proof of their complicity. As a preliminary to the discussion of this matter, some questions relating to the admissibility of evidence have to be decided. The judgment of the District Munsif in the will suit is Ex. II and the appellate judgment is Ex. S, and the appellant wishes to make use of certain of the contents of the former of these two judgments in order to show the plaintiff's guilty knowledge. For all that appears, the only object with which these judgments were filed was to prove the decision in the will suit, which of course is res judicata in the present proceedings. That this is so is probable from the circumstance that the learned Subordinate Judge refrained in his judgment from any reference to their further contents. Nor is there anything to show, that in the Lower Court the defendant, argued that those contents were admissible in evidence. Now, however, she wishes to use Ex. II as proof not only that the will is a forgery but that the 2nd defendant knew it. It is open to question whether this judgment, or the appellate judgment, is, strictly speaking, legal evidence even of the first of these propositions. The issue tried was 'Whether the will set forth in the defendant's statement is true, valid and binding on the plaintiff,' and it is clear that, speaking generally, a finding on an issue so framed, to give the plaintiff a decree, need not necessarily involve more than the conclusion that, the will was not proved to be either true or false. The affirmative finding that it was false, clearly expressed by the District Munsif, less clearly by the Subordinate Judge, was not really necessary for the purposes of the decree. Inasmuch, however, as the question substantially between the parties was whether the will was true or false, it may be taken to have been settled between them that it was a forgery. It remains to be seen whether there is evidence that the plaintiff and his brother were privy to it. The plaintiff was examined as P. W. 2 in the suit but no effective questions were put to him in cross-examination under this head, a seemingly inexplicable omission on the part of the defendant's vakil. In particular, he was not questioned with reference to statements made by him as a witness in the prior litigation. That being the position, it is now sought to import into the present case not indeed his deposition in the will suit but an abridged version of it contained in the judgment, Ex. II. This version relates to the circumstances in which, the rough draft of the will was alleged to have been prepared and, so far as appears, the plaintiff, as the 2nd defendant in that suit, deposed to these circumstances from first hand knowledge. We are clearly of opinion that no such use may be made of this extract. In the first place, the circumstances did not resemble those in Gopu Nataraja Chetty v. Rajammal : AIR1922Mad394 , where the recital in a judgment of the terms of a codicil was allowed in proof of the contents of the document on the exceptional ground that it was admissible by consent of parties, no objection having been taken to its admission. As we have said, for-all that appears, no attempt was made to use this portion of the judgment in this manner at the trial, so that the question of the unchallenged admission of legally inadmissible evidence does not arise. We have not been referred to any provision of the Evidence Act under which a statement of a witness abstracted in a judgment can be made use of in lieu of the; original statement itself. Indeed, it seems clear from Section 63 of that Act that such a record is not even secondary evidence of the statement and, even if it had been, the conditions laid down by Section 65 for its use had not been fulfilled. We think, there fore, that if the defendant wanted to prove what the plaintiff had said as a witness in the will suit, she could have done so only by the production of the original deposition or of a certified copy. Apart, however, from this difficulty, it seems that the statement could have been used only in one of two ways-either under Section 145 of the Evidence Act to contradict the witness or as an admission under Section 21. For the former purpose, it was incumbent upon the party examining the: wit-ness, before proving the writing, to call his attention to those parts of it which were to be used for the purpose of contradicting him. It has been pointed out by the Judicial Committee in Bal Gangadhar Tilak v. Shrinivas Pandit (1915) L.R. 42 IndAp 135 : I.L.R. 39 B. 441 : 29 M.L.J. 34 (P.C.) that this is an essential step in the procedure, the omission of. which is likely to. cause grave, injustice. In point of fact not only was his prior statement or even the version of it given in the judgment not put to the plaintiff but he was not asked, a single question as to what he said. It may be that as an admission the original deposition might have been filed in evidence without putting it to the party, but, even assuming that the version in the judgment could be made use of in its place, it is clear that it would be an admission not that the will' was a forgery but that it was genuine. We think then that it is not open to the appellant to make use of Exs. II and S, further than to show, at most, that the will was a forgelry, in order to establish the plaintiff's lack of good faith. This seems to have been the view taken by both parties and the Court at the trial, because the learned Subordinate Judge seems deliberately to have abstained from drawing any conclusions from the contents of those records. . Had the vakil . for the defendant obtained a copy of the deposition and cross-examined the; plaintiff upon it, it may be that he would have been able to show from his answers that he must have known about the fabrication of the will; but it is even doubtful whether this conclusion should be drawn from what the plaintiff said in the prior suit, because it does not follow that because he gave false evidence in support of its genuineness he must have known that was a forgery. We think, accordingly, that the footing upon which the Subordinate Judge deals with the question of good faith in (paragraph 12 of his judgment is correct .in so far as he disregards the findings of fact in the previous suit and bases his conclusion in the plaintiff's favour merely upon the grounds that he and his brother Lachanna were minors at the time of Viyyanna's death and were not shown to have had any hand in bringing the will into existence. The question is whether, upon the evidence which we are entitled to consider, this is a correct conclusion.
5. We think it is clear from a variety of cases cited before us that, in order to qualify for a decree for reimbursement, the Court must be satisfied of the plaintiff's abundant good faith. In the Privy Council case, Dakhina Mohan. Roy v. Saroda Mohan Roy , the plaintiff enjoyed a period of possession under a decree of the High Court of Calcutta which was subsequently reversed by the judgment of the Privy Council. In the interval, although he received only a trifling sum on account of rents and profits, he was called upon to pay and did in fact pay large sums for Government revenue and other charges assessed upon the estate!. In a suit to recover the amounts of these disbursements he obtained a decree which was reversed on appeal to the High Court. In further appeal to the Privy Council their Lordships said that
it seems 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.
6. They, point out that in the interval between the High Court and the Privy Council decrees he was not in wrongful but in rightful possession. So much so that the defendants acted wrongfully when they interfered with the tenants upon, the estate. The circumstances of that, case were, we think, widely different from the present one. A person who gets possession of property under a forged will can in no sense be said to be in rightful possession; and in so far as their Lordships base their decision upon the danger to the estate which would have Men involved lay the plaintiff's refusal to pay the Government revenue, the case falls gather under Mr. Varadachari's second category. Here, in respect of at least the majority of the debt's the plaintiff cannot assert that payment was unavoidable in order to avert loss of the property. In another Privy Council case in the same volume Abdul Wahid Khan v. Shaluka Bibi (1893) L.R. 21 IndAp 26 : I.L.R. 21 C. 496 (P.C.) where one of two co-sharers who was in possession of the whole property was sued for the other half: share and counter-claimed in respect of certain litigation expenses defrayed which, it was claimed, were necessary to protect the property, it was held that the mere circumstance that the plaintiffs had got a benefit therefrom was not a ground for making them liable for any portion of those costs:
The proceedings were taken by the defendant for his own benefit, and without any authority express or implied from the plaintiffs; and the fact that the result was also a benefit to the plaintiffs does not create any implied contract or give the defendant any equity to be paid a share of the costs of the plaintiffs.
7. This case, it is true, does not deal with the question of bona fides and seems to have been decided with reference to the terms of Section 69 of the Contract Act. Instances of cases where the claim has failed from lack of bona fides are Chinna Alagumpenmial Karayalar v. Vinayagathammal : AIR1929Mad110 , and, if we take the judgment of Devadoss, J., Gopala Aiyangar v. Mummachi Raddiar (1922) 17 L.W. 254. The learned Judge held that the plaintiff who took a conveyance of the property from the 1st defendant's vendee after the 1st defendant had warned him that the sale to the vendee was nominal was no better than a speculative volunteer and could not have made in good faith certain subsequent payments to the 1st defendant's creditors. This view was not agreed in by Spencer, J., who considered that the plaintiff could recover under Sections 69 and 70 of the Contract Act, but it seems clear that, if the test of good faith should have any application, the plaintiff was out of Court. Special considerations, arising out of the repurchase of the property by the ostensible owner at a Court sale, were held by Kumaraswami Sastri, J., in Mollaya Padayachi v. Krishnaswami Aiyar : AIR1925Mad95 to qualify a mortgagee from that owner to a charge upon the property; but we think it is clear from the learned Judge's observations that in the absence of those circumstances he would have held that the knowledge of the mortgagee of the infirmity of his mortgagor's title would have been fatal to his claim.
8. A number of other cases have been cited before us by the learned Advocate for the appellant, but they do not, in our view, throw any further light upon the question before us, which is, indeed, a question to be answered upon general considerations of justice, equity and good conscience. The plaintiff gained possession of the property under a false title and white so holding it claims that he made several voluntary payments to discharge debts that would be enforceable against it, voluntary in the sense that the payments, with one exception, were not made to avert the imminent loss of the property. Whether or not it is enough that the plaintiff should prove, to entitle him to recover the money from the real owner, that he believed in his own title, it seems indisputable that before granting him a decree the Court must be satisfied that that condition was fulfilled. Unless he establishes the most unquestionable good faith he can have no claim in equity to reimbursement. Now it seems to us that, in view of the finding that the will is not genuine, which we must adopt here as res judicata, the only footing upon which the plaintiff can get the relief for which he asks is by avowing the falsity of the will, or at the least conceding that it is not genuine, and by pleading that he set up a title to Viyyanna's property, and paid the debts, in the, relief that it was true. In the! plaint, however, he adheres to the falsehood that the will is true, alleging in unqualified terms that it was executed by Viyyanna and necessarily there is no disavowal of knowledge that the will was not genuine. He repeats in his deposition as P.W. 2 the story that Viyyanna executed the will. That being so, it seems scarcely open to him now to contend that he at least acted in ignorance that the will was false. The two positions are irreconcilable.
9. It may be objected that this line of reasoning is based upon too strict a standard of pleading and conduct; let us therefore see whether, in spite of the plaintiff's attitude, there are! grounds upon which to infer his good faith. The learned Subordinate Judge thinks that as the plaintiff and his brother Lachatina were minors at the time of Viyyanna's death and as they were not shown to have had any hand in bringing the will into existence they should be held to have made the payments in good faith. The test proposed should be, we think, not! whether or not they had a hand in the fabrication but whether at the time or within the period to which the payments relate they had knowledge that the will was false. It must in our opinion be inferred against an ordinary party who> holds property under a false will that he has knowledge of the true, state of affairs. How far, if it all, does the interference hold good in the case of a minor? To accept the mere fact of minority as sufficient to exonerate a person from the imputation of guilty knowledge is to go a great deal further than, for instance, the Indian Penal Code; goes in Section 83, under which a child above seven years of age and under twelve, who has not attained sufficient maturity of understanding to judge of the nature and consequences of his conduct, is to be deemed not to have committed an offence. Youthfulness, it is true, must always be taken into consideration in inferring knowledge and intention; but in this respect no hard and fast line can be drawn. we think, between persons above! and persons below the age of eighteen.
10. The few facts which the evidence in this case discloses are these. The elder brother, Lachanna, is shown as of age when he executed the promissory note, Ex. B, on 14th November, 1915, a few months after the date of the will. The plaintiff himself gives his age, when he deposed in 1927, as 26. In the receipt, Ex. A, passed to his brother and himself on 28th January, 1918, he is no longer described as a minor with his mother as guardian. He was probably, therefore, about fifteen when Viyyanna died and the alleged will came into existence. It may perhaps be a fair inference that he was too young to bear a part in the fabrication of the will, although no such inference would arise, we think in the case of Lachanna. But confining ourselves to the real essential knowledge of the facts and remembering that the mother must be assumed to have known them, it appears to us impossible to draw the affirmative conclusion, on grounds of abstract probability that the two sons, who alone stood to gain by the fraud, would have been kept in ignorance of them. This part of the case is very difficult to deal with, owing to what we cannot but regard as its mishandling by the defendant's advisers. But that is no reason why the plaintiff should get a decree to which he is not entitled, and giving the matter the best consideration we can, we do not think that upon the record as it stands the requisite good faith has been established. This, in our view, disentitles the plaintiff from recovering in respect of any debts payment of which by him was voluntary and not affected by any special considerations.
11. It remains to apply these considerations to the four instances in which the plaintiff claims reimbursement for debts paid. Two of these items, Nos. 3 and 4, were debts upon promissory notes, and it is not claimed that payment of them was forced upon the plaintiff by-immediate threat to any part of the property. The claims in respect of them, assuming them to be true, must accordingly be disallowed. Item 2 is a decree debt, in settlement of which the plaintiff and his brother are said to have paid Rs. 200 on 28th January, 1928 and obtained the receipt, Ex. A-l. In proof of this the plaintiff has examined the creditor himself as P.W. 1, and the writer and an attestor of the receipt, P.Ws. 6 and 5. The creditor says that the payment was entered in his accounts, but these were neither produced for the plaintiff nor summoned for by the defendant. Our attention is drawn to the circumstances that not only was the payment not certified to the Court, as the plaintiff says the creditor promised to do, but execution was actually taken out again subsequent to the date of Ex. A-l (vide Exs. III and III-a). The creditor himself denies that he took this course, and it may be that, as suggested, it was done under his. standing instructions which he failed to withdraw. Mr, Varadachariar points out that, in the earlier execution proceedings, the sale proclamation (Ex. A), is dated 8th January, 1918, and that it' is reasonable to suppose that since no sale took place something must have been done to induce the creditor not' to proceed ; and that that makes it very probable that the payment was made on 28th January. As will be seen from para. 13 of the written statement, it is not the defendant's case that the decree was ever realised by execution, and in view of the positive evidence of payment, we agree with the Lower Court that it should be accepted as true. Since, further, when payment was made the sale was imminent, we think that here no question of good faith arises, but that the defendant is bound to honour an obligation incurred for the purpose of saving the estate.
12. Finally, there is item No. 1, which relates to a settlement of two debts due to one Rapaka Viyyanna under a mortgage and a decree (respectively. The decree was for a sum of Rs. 1,278 on a promissory note and is [dated 4th May, 1912. Execution of this decree was taken out in 1912 by warrants of arrest and for attachment of moveables, but nothing was realized; and the decree-holder subsequently assigned the decree to one Lakshminarayanamurthi. It has not been contended that in execution of this decree matters ever reached the stage of proclaiming any part of the estate for sale, much less that the payment was rendered unavoidable by the need to avert such a proceeding. We do not think that the mere fact that, a debt is secured by a decree will render applicable the principle which we have accepted in the case of item No, 2. Even admitting, therefore, the truth of this payment, we do not consider that the amount can be recovered.
13. There remains the question whether upon any special considerations the plaintiff can claim refund of a payment of Rs. 1,593-6-6, assuming it to have been made, on the ground that the debt was under a mortgage secured upon the property. Our attention has been drawn to three cases decided by this Court, Synialamyudu v. Subbarayudu I.L.R. (1897) M. 143, Chama Swami. v. Padala Ananda I.L.R. (1908) M. 439 : 18 M.L.J. 306 and Palamalai Muduliar v. The South Indian Export Company I.L.R. (1909) M. 334 : 20 M.L.J. 211 in which a claim of this kind was allowed, and; it is argued that at least so far as title to the property was concerned the element of good faith was not deemed to be requisite. The first of these cases related to a sale found invalid as antedated to an agreement. The circumstances of the second do not appear in full, but it was a case of a sale found to be invalid. In the third, there was a sale which was set aside as in fraud of creditors. It will be observed that in each of these cases the plaintiff acted under colour of a sale deed, voidable no doubt but apparently supported by consideration, and occupied a position quite other than that of a mere trespasser. This distinction was stressed by Devadoss, J., In Gopala Aiyangar v. Mummaichi Reddiar (1922) 17 L.W. 254. That, as has. been already said was a case of a purchaser whose vendor had, to the purchaser's knowledge, only a nominal sale deed in his favour, and who discharged certain encumbrances on the property. Spencer, J., considered that the payment's fell within the terms of Section 69 of the Contract Act, a contention which, as, I have explained, is not advanced here. Devadoss, J., differed, and since it was clear that the plaintiff's object was to sustain his claim to the property, held that he did not make them bona fide for the purpose of preserving the property. He distinguishes between a person holding under a title voidable or defeasible and a volunteer who knows that his so-called title is a mere sham. We must take it that the plaintiff's title in the present case is of this latter description.. In Narayana Kutti Goundan v. Pechiammal I.L.R. (1911) M. 426 : 22 M.L.J. 364 Sundara Aiyar, J., has discussed in what circumstances a person having no actual vested interest in the property-the case was one of a reversioner--may discharge a mortgage upon it, and on what principles he may recover the money. He decided that a reversioner is not entitled to be subrogated to the mortgagee's rights, and that he is not among the persona whom Section 91 of the Transfer of Property Act permits to redeem. Finally, he held, that where the mortgagee held a decree under which he was proceeding to sell, and the reversioner intervened in order to save the property, he has sufficient interest in it to entitle him to a charge for repayment. The decision is based upon the interest possessed by the reversioner, and there can be little doubt from the learned Judge's observations that he would have held that no such relief could be granted to a holder under a false title. We have been referred to no authority for the view that, where the plaintiff's alleged title is found to have been false, and he has not succeeded in showing that he held possession of the property in good faith believing it to he true, a payment made to discharge a mortgage debt stands on any better footing than a payment made to discharge an unsecured debt. Nor do there seem to be any grounds based upon general principles of equity to make any such distinction. We must, therefore, disallow the claim in respect of the whole of item 1.
14. On the issue of limitation we agree with the learned Subordinate Judge that Article 61 has no application but that the Correct article is Article 120, under which the suit was within time.
15. The result of our findings is that except as regards item 2, a claim to a sum of Rs. 200 and interest thereon as allowed by the Lower Court the appeal must be allowed and the plaintiff's suit dismissed. The appellant will get her costs throughout.