1. The plaintiff sued for contribution Under Section 70, Contract Act, towards the cost of certain repairs which ho executed to the tank which irrigates the wet lands of Manavanagari, a village in the Ramnad District. Of this wet land the plaintiff owns of the whole extent 7/8ths. The petitioner before me is defendant 5 and he, with the other defendants, is a trustee of a kattalai which owns a 1/16th share, the remaining 1/16th share in the land being held by one Muhammad Ibrahimsa. The tank also is the common property of these persons in the same proportions. It had fallen out of repair, so that the supply of water for irrigation had diminished and during the years 1923 to 1925 the plaintiff replaced the old and broached bund by a new one at a cost of between Rs. 5,000 and Rs. 6,000. Towards this sum ho claimed a 1/16th contribution, equal to Rs. 372-7-2, from the trustees of the kattalai. The suit was tried on the small cause side and the learned Temporary Subordinate Judge of Devakottah has given a decree for the amount on the grounds that the work was done for the benefit of the plaintiff and the defendants and that the defendants did not object, but enjoyed the advantages resulting from the expenditure. It is contended before me that this decision is not in accordance with the law and that certain conditions which are necessary before a liability to contribute can be established have not been fulfilled. In the first place, it is not enough that the work should result in benefit to the defendant; it must have been done, in part at least for his benefit, In the second place the defendant must have been in a position, after the execution of the work, to exercise his option whether or not to avail himself of the benefit. I think that an examination of the case law of this Court will show that judicial opinion has now come to hold that in both these respects the very wide language of Section 70, Contract Act, should be read with these qualifications. In Damodara Mudaliar v. Secy. of State 18Mad.88 it was pointed out that the question whether the act was done for the defendants was one which must be determined according to the circumstances of the case, for one of two persons having a common interest in property may or may not intend to act for the other in the execution of work upon the property. The fact that the latter was benefited by the work does not necessarily show that it was done for him. The case was accordingly remanded for a finding upon this point. The question of the exercise of an option to enjoy the benefit was not discussed in this case, but in Y. B. Ammani Ammal v. Naina Pillai Marakayar 33Mad15, both the points came under consideration. That case is authority for the view that no presumption arises that work in which one party is interested and which benefits another was done for that other. The second question, whether the defendant should have an opportunity of exercising his option to enjoy the benefit, was also discussed and Sankaran Nair, J., expresses himself strongly in favour of the view that a person can be said to enjoy a benefit Under Section 70 only by accepting the benefit when he has had the option of declining or accepting it.
2. A different note was struck in Sri Chandra Deo v. Srinivasacharlu  38 Mad. 235, where Y. B. Ammani Ammal v. Naina Pillai Marahayar 33 Mad.15 was subjected to some criticizm; but Sadasiva Iyer, J., who was a party to the later case, in Naraina Pai v. Appu  28 I.C.456, subsequently acknowledged that the trend of decisions was against his view. Again in Raja of Pittapur v. Secy of State A.I.R.1915Mad.428, to which Sankaran Nair, J., was a party, the principle was repeated that a person cannot be made to pay for a benefit which he had not had the option of rejecting or accepting. In Viswanatha Vijia Kumara v. R. G. Orr 45 I.C786, the facts of which very closely resemble those of the present case, both principles are discussed. 'The law is not,'it is said:
that, when a person does any act for his own benefit, and that act incidentally benefits his neighbour or any other person, that neighbour or other person must pay for the extent of the benefit he derives from the act.
3. There was no doubt in that case that the tank had been improved by the repairs effected to it and that the defendants did in fact enjoy the benefit of those repairs. The plaintiffs however owned a preponderating interest, as the plaintiff does here, and it was held to lie upon them to show that they did not make the repairs for themselves and that they did make them for the defendants. In this they failed and the claim was disallowed. The learned Judges found it sufficient to decide the case upon that point, and refer to a difference of judicial opinion on the question whether a person to be charged must have the option of refusing or adopting the benefit. I think however as has been held recently by Madhavan Nair, J. in Sampath Ayyangar v. Raja of Venkatagiri : AIR1931Mad51 that this latter principle may now be regarded as well enough established. Mr. Patanjali Sastri has drawn my attention to a Privy Council case, Luckhinarain Mitter v. Khattro Pal Singh Roy  13 B.L.R. 146, which he argues would indicate a much wider construction of Section 70. The matter related to the deposit of rent for the defendants and it was held that because the defendants had the benefit of it they were bound to reimburse the plaintiffs. The case was decided before the present Contract Act came into force and has not been relied on in any of the above-cited cases as defining the scope of Section 70. I do not think that it throws any light upon the special questions arising here.
4. Turning now to the circumstances of the present case, it has been said that the plaintiff owns 7/8ths of the village and the defendants only 1/16th. It is true that the case differs from some of the decided cases in the ownership of the tank being shared and not exclusively the property of the person who undertook the repairs. But we must look, I think, rather to the matter of water-rights than of ownership. The plaint does not allege that the defendants were consulted before the repairs were put in hand, and I do not read a passage in the deposition of the plaintiffs' maramath superintendent, P.W. 4, as meaning more than that the defendants were informed after they were executed. Considering the large preponderance of the plaintiff's interest it certainly lay heavily upon him to show that he was actuated not solely by a consideration of that interest in doing the work. This has not been proved and I can find no reason to suppose that, even if the defendants had expressly refused to share, he would have been deterred by that circumstance.
5. On the second question, that of an opportunity to exercise an option, if the tank before the repairs were effected had afforded no supply of water at all, it might have been possible to argue, as has been pointed out by Sankaran Nair, J., in Rajah of Pittapur v. Secy of State A.I.R.1915 Mad.428, that in using the water rendered available by the repairs the defendants exercised an option which it was open to them to refuse by not using the water. But if the repairs merely resulted in an increase of the water supply, no such clear alternative presented itself. They had to take some water, and it is not possible to differentiate between what they would have got before the repairs and what after. The evidence does not show in the present case that the water supply had wholly failed when the repairs were undertaken, although it seems clear that the bund was much broken down, breaches having formed, it is said, in 60 or 70 places. The plaint only states that the tank had not been properly yielding and that on account of the repairs a proper yield had been secured. This is borne out by the statements of the witnesses. It seems clear therefore that the defendants' wet land was receiving a certain supply before the plaintiff renewed the bund, Accordingly I cannot find in the circumstances of the present case that it was open to the defendant to refuse to accept the benefit.
6. The revision petition is preferred Under Section 25, Provincial Small Cause Courts Act, and it is open to this Court to interfere if the decree is not according to law. I think that the learned Temporary Subordinate Judge has decided it without advertence to any of the ease law really bearing on the questions in issue, and has not adopted what I take to be now the settled judicial opinion of this Court as to the principles on which such cases should be decided. In these circumstances I think that the decree ought not to stand. I accordingly allow the petition, set aside the decree and dismiss the suit with costs here and below.