(1) The plaintiff, whose suit for reimbursement of the amounts he had paid to the Government as penal assessment for the period of the defendant's possession of certain lands has been dismissed, is the petitioner in this revision. The learned District Munsif, who had no hesitation in holding that the defendant was bound in law to pay the penal assessment which had been paid by the plaintiff, found however, that the plaintiff could not be said to be interested in the payment. In the result, Section 69 of the Indian Contract Act, on the basis of which action was laid, was held to have no application, and the suit dismissed.
(2) The facts and circumstances which led to the plaintiff's claim may be briefly set out. The parties are Hindus and form two branches. In respect of the properties belonging to certain private family charities kept in common, an arrangement for management and enjoyment in turns was entered into on the 15th October 1955, by the plaintiff's father representing one branch and the defendant the other. The arrangement provided for each branch being in continuous possession for a term of three years in turns, the defendant's branch getting possession from the plaintiff's branch from the first of Aipasi, Manmada (18-10-1955). The plaintiff's father died on 27-10-1955, and pursuant, to the arrangement the plaintiff took possession of the trust properties from the defendant on 18-10-1958, after the expiry of the three year term of the defendant's branch. Under the terms of the arrangement material for the present, the branch in management has to enjoy the properties of the charities, receive the income therefrom and carry on the trusts, meeting all the expenses and outgoings from the income. Even if excess expenditure has to be incurred the branch in management will have to bear the same. The agreement specifically provides that taxes outgoings during the turns must be paid by the party in management, and there was no liability of one party to account to the other for the period of its management. A specific clause provides that if in respect of the properties or charities action had to be taken against third parties, both the branches should act in consultation and bear the expenses in moieties. The properties are to be recorded in the name of both the parties.
(3) After the plaintiff entered on his turn, in respect of certain lands which were subject of the arrangement, penal assessment was levied on him by the Government for the five faslis 1365 to 1369, the first three being in defendant's turn, and distraint warrant issued. The lands had admittedly been in the enjoyment and management of the defendant in the three faslis, 1365 to 1367. The plaintiff who paid the entire amount for which distraint was threatened sought by this suit reimbursement of the sum of Rs. 163-03, the penal assessment for the three faslis during the defendant's management. The suit claim included interest therein also. The defendant in his written statement did not deny that he had the management of these lands during the faslis in question. He contended that no demand had been made on him during his turn for payment of the land revenue in question. It was further contended that as the Government had treated the lands as poromboke and was levying assessment, the plaintiff and the defendant must be held to be independent trespassers in respect of the levies and there was no liability on the part of the defendant to make any reimbursement or contribution if the plaintiff made the payment when in possession. It was further pleaded that the Government had been treating the properties as poromboke and issued 'B' memos from fasli 1362 itself, that the defendant was not made aware of the same and that neither the plaintiff's father nor the plaintiff had moved in the matter to context the claim of the Government and to secure pattas for the lands.
(4) The short question for consideration is whether in the circumstances the defendant is bound to reimburse the plaintiff for the penal assessment payable and paid for the period of the defendant's enjoyment of the lands. S. 69 of the Indian Contract Act runs thus:
'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'.
For a claim to be sustained under this provision the plaintiff must establish three things:-
(1) that the defendant was bound by law to pay the amount in question, (2) that the plaintiff was interested in the payment of the money and (3) that he therefore paid the money.
The payment to the third party must be because of the interest the plaintiff had in the payment; it must not be an officious and voluntary one. The scope of the section is manifest. It affords to the person, who pays money because be has himself an interest in making the payment, an indemnity in respect of the payment against a person who should have made the payment, who, rather than he, could have been made liable at law to make the payment. It has been held that the words 'bound by law to pay' in Sec. 69, do not exclude those obligations of law which arise inter partes whether by contract or tort and are not confined only to those public duties, which are imposed by statute or general law. In Govindram v. State of Gondal, AIR 1950 PC 99 it is observed by the Judicial Committee at page 104:
'But their Lordships think that the words extend to any obligation which is an effective bond in law. Certainly the common law of England afforded a right of indemnity to one who had paid 'under compulsion of law' against the true obligor without limiting the circumstances in which the latter's liability had arisen. Certainly too, there is authority in the Courts of India for the proposition that 'bound by law' covers obligations of contract or tort.'
Under the arrangement for turns between the parties all the outgoings and public dues have to be met by the party in possession and management. This is a binding agreement between the parties and it is under that agreement the defendant entered into possession of the properties and had the benefit of the enjoyment of the lands. It has not been established in these proceedings that the penal levy for the period in question is illegal, and the levy being in respect of the faslis during which the defendant had been in enjoyment of the lands it is he rather than the plaintiff who should have been called upon to make the payment. The learned District Munsif is of the view that the plaintiff was not interested in the payment as the lands have not been established to be that of the plaintiff. The learned District Munsif is of the view that the plaintiff was not interested in the payment as the lands have not been established to be that of the plaintiff. The learned District Munsif herein ignores that for one thing it is not necessary for a person to be interested in the payment of money that he must have some legal proprietary interest in the property in respect of which the payment was being made. Secondly it is overlooked that the plaintiff and the defendant are in fact joint trustees and under the agreement, the properties are to be recorded in the names of both the branches. The trust properties vest in the trustees jointly and management in turns in some settled order and sequence is only a permissible agreement between the trustees when there is no detriment to the trust. The provision for turns in enjoyment is purely internal matter and does not absolve the liability of the trustees as a body vis-a-vis, the institution or third parties in respect of the management.
The learned District Munsif observes that till the day the plaintiff had not moved his little finger to establish his title to the property for which the penal assessment had been collected. Learned counsel for the respondent here again argues that the defendant is an independent trespasser in respect of this levy and that the plaintiff was under no obligation to pay for the period anterior to his possession the plaintiff himself being another independent trespasser. The suggestion is that the plaintiff could have repudiated the liability for the period in question pointing out that he cannot be held responsible pointing out that he cannot be held responsible for the defendant's possession as trespasser, in effect disclaim and repudiate that the possession of the properties by the parties was not held for the trust. I cannot understand how this argument is open as between the parties to the arrangement. They are both, jointly trustees and the defendant cannot take shelter from liability for the public dues in question in respect of property enjoyed for the charities by pleading that no action had been taken to establish the title of the charities to the property. The learned District Munsif is in error in thinking that the plaintiff will have to establish his title to the properties. The plaintiff does not and cannot set up any personal right or claim in the properties, even as the defendant cannot. The properties under the terms of the agreement are properties of the family set apart for family charities. It may be that they are being treated by the Govt. on the vesting of the estate within which the property is located under the Abolition Act, as poromboke. It may be that steps have not so far been taken by the parties to establish their claim to the properties and secure pattas for the same if entitled to in law. But still the money payable as penal assessment for the three faslis is one which in the circumstances the defendant is bound to pay, rather than the plaintiff.
(5) As regards the plaintiff's interest in the payment, I may also refer to the following observations of Ramaswami J. in Muppudathi v. Krishnaswami, AIR 1960 Mad 1 , on receipt of the opinion of the Full Bench in the case:-
'It is not correct to say that person 'could not be interested in the payment of money' within the meaning of S. 69 of the Contract Act, unless, he was at the same time entitled to some legal interest in the property in respect of which such payment might be made. The words themselves do not require that a person to be interested in a payment should at the same time have a legal proprietary interest in respect of which the payment is made'.
Under the arrangement between the parties, the outgoing in question should have been paid by the defendant, but the levy has been made on the plaintiff during his turn and distraint warrant issued. The levy could have been made even on both for the entire period. If the plaintiff had failed to pay, under coercive process, his personal moveable could have been proceeded against. How could it be said in such circumstances, that the plaintiff was not interested in making the payment or that the payment was a voluntary or officious one? Even assuming that the family charity as set up had no title to the property certainly in view of the agreement between the parties under which they continued in the enjoyment of the properties the plaintiff had an interest in making the payment to protect himself. I do not find any warrant for the contention that the plaintiff must have an interest in the very property in respect of which the levy is made and that by coercive process that very property should be likely to be lost. Section 69 does not by its terms impose any such limitation. The reasoning of the learned District Munsif in the circumstances that as the plaintiff's status with reference to the properties in question could only be that of a trespasser, he cannot be considered to be interested in the payment of the tax does not, in my view, deserve any consideration.
(6) The plaintiff will therefore be entitled to recover from the defendant the penal assessment for the three faslis in question during which the defendant had been in possession of the properties. It is not disputed me that the amount of taxes paid for the three faslis by the plaintiff is Rs. 163-03 ps. There will therefore be a decree in favour of the plaintiff for the said amount with interest thereon at 6 per cent from the date of the decree. I see no ground for awarding interest prior to decree. On the question of costs, I find that while the plaintiff charges the defendant with not providing the necessary records for establishing the title of the charities to the properties in question, the defendant would state that he offered to provide the records to the plaintiff's father on the grant of a receipt and that as it was not forthcoming he did not give him any document. The defendant further states that the plaintiff himself did not demand any record from him. The agreement between the parties provide for their taking action with reference to the properties of the trust against third parties after joint consultation. In the circumstances, the plaintiff is given proportionate costs of the suit only. In this court, the parties will bear their costs.
(7) Revision allowed.