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Raja Viswanadha Vijia Kumara Bangaroo Thirumalai Souri Naicker Vs. R.G. Orr and ors. - Court Judgment

LegalCrystal Citation
Decided On
Reported in45Ind.Cas.786
AppellantRaja Viswanadha Vijia Kumara Bangaroo Thirumalai Souri Naicker
RespondentR.G. Orr and ors.
Cases ReferredRajah of Pittapur v. Secretary of State
contract act (ix of 1872), section 70, scope of - act dane primarily for doer's benefit incidentally benefiting another--irrigation channel, repair of, benefiting both repairer and third party--contribution, claim for--refusal of defendant to pay for repairs--charge, enforceability as--limitation act (ix of 1908), schedule i, articles 61, 120--regulation xxvii of 1802, section 32--collection of cost of repairs by collector, effect of. - - 1. this appeal is from a decree of the subordinate judge of madura, by which he directed the defendants to pay a sum of money as compensation for the benefit enjoyed by them as a result of certain repairs executed by the plaintiffs to a tank called marnad tank situate in the sivaganga zemindari. sivaganga zamindari is now in the possession of the.....abdur rahim, j.1. this appeal is from a decree of the subordinate judge of madura, by which he directed the defendants to pay a sum of money as compensation for the benefit enjoyed by them as a result of certain repairs executed by the plaintiffs to a tank called marnad tank situate in the sivaganga zemindari. the defendants are inamdars of a village called vellikurichi and, admmittedly, this tank is the source of irrigation for that village and also a number of ayan and devastanam villages. vellikurichi is what is called a jividam inam. it was granted prior to the permanent settlement to a descendant of tirumal naick and is held rent-free. the first ground of the claim is based on section 70 of the contract act. sivaganga zamindari is now in the possession of the plaintiffs who are.....

Abdur Rahim, J.

1. This appeal is from a decree of the Subordinate Judge of Madura, by which he directed the defendants to pay a sum of money as compensation for the benefit enjoyed by them as a result of certain repairs executed by the plaintiffs to a tank called Marnad Tank situate in the Sivaganga Zemindari. The defendants are Inamdars of a village called Vellikurichi and, admmittedly, this tank is the source of irrigation for that village and also a number of Ayan and Devastanam villages. Vellikurichi is what is called a jividam Inam. It was granted prior to the Permanent Settlement to a descendant of Tirumal Naick and is held rent-free. The first ground of the claim is based on Section 70 of the Contract Act. Sivaganga Zamindari is now in the possession of the plaintiffs who are lessees, and their case is to the effect that the tank which is a common source of supply to the Ayan villages as well as to Vellikurichi: was badly in need of repairs, the bund, in more than one place, had been worn out and the sluices were not in order. It was necessary for the maintenance of the tank in proper condition that considerable repairs should be executed. The finding of the Subordinate Judge is that the tank was, as a matter of fact, in need of repairs and, as a result of the repairs, it has been restored to its proper capacity and even improved. Vellikurichi has benefited by these repairs just as much as other villages, and the Subordinate Judge also finds that, were it not for the repairs, the tank would have gradually gone into ruins. The plaintiffs sent a notice to the defendants that repairs were necessary for the maintenance of the tank in proper condition and also a copy of the estimate, claiming that the defendants were liable to contribute to the cost in proportion to the land which was cultivated, with water from the tank. The defendants, in reply, denied their liability and, in fact, said that they did not want any repairs to be done to the tank, so far as, they were concerned. The plaintiffs, however, proceeded with the repairs, the cost of which has amounted to Rs. 14,000 and odd.

2. There can be no doubt that, as a result of the repairs, the tank has been improved. The plaintiffs have not only repaired the tank but they have improved the sluice and put in a regulator under lock and key for the purpose of regulating the discharge of water from the tank. The Subordinate Judge has held the defendants liable for a proportionate share of the expenses of the repairs, but that, so far as the repairs to the sluice are concerned, they could not be said to be for the benefit of the defendants, and he has disallowed the cost of those repairs. The memorandum of cross-objections mainly relates to the cost of repairs to the sluice.

3. The question we have to consider in this case has a fairly long history, going as far back as 1820 or so. On going through the entire evidence both oral and documentary, one fact seems to be clear, namely, that the Inamdars have all along been refusing to pay anything for the repair of the tank. I shall have again to refer to that matter later on. So far as the application of Section 70 of the Contract Act is concerned, it must be taken to be proved that the defendants never authorized the plaintiffs to execute the repairs at their cost and never assented to payment of the expenses. I may assume for the purpose of argument, so far as this question is concerned, that the defendants did in fact enjoy the benefit of the repairs done by the plaintiffs. But that is not enough to bring the case within Section 70. This section has been the subject of interpretation in a number of cases in this Court beginning from Damodara Mudaliar v. Secretary of State 4 M.L.J. 205 : 6 Ind. Dec. 410, and it could not be said that the rulings have been consistently uniform on every point. But the weight of the decisions undoubtedly preponderates in favour of the views expressed by Munro and Sankaran Nair, JJ., in Yogambal Boyee Ammani Ammal v. Naina Pillai Markayar 3 Ind. Cas. 110 : 6 M.L.T. 162 and by Sankaran Nair and Spencer, JJ., in Rajah of Pittapur v. Secretary of State 25 Ind. Cas. 783. In those cases, the scope of the section has been fully discussed. That section says: 'Where a person lawfully does anything for another person, or delivers anything to him, not intending to do so gratuitously, and such other person enjoys the benefit thereof, the latter is bound to make compensation to the former in respect of, or to restore, the thing so done or delivered'. In this case, there can be no doubt that the act of the plaintiffs was lawful. The next element that has to be proved by them is that they did the act, the compensation for which they claim from the defendant, for the defendants. It has further to be proved that they did not intend to do what they have done gratuitously and this, we may take it, has been amply proved and is not disputed, The last condition that has to be satisfied is that the defendants should have enjoyed the benefit of the act. As regards this, it is laid down, in the two cases already referred to, that the person who is sought to be charged must have the option of refusing or adopting the benefit. But on this point, there seems to be some difference of opinion. Ayling and Tyabji, JJ, in Saptharishi Reddiar v. Secretary of State for India 28 Ind. Cas. 309 appear to have doubted whether that view of the law is correct. It is not, however, necessary for us in this case to go into that question.

4. I think that the plaintiffs have failed to bring their case within Section 70 by failing to prove that they did the repairs for the defendants. The irrigation of their own villages also depends as much upon the maintenance of this tank as that of Vellikurichi. The extent of land irrigated in the Ayan villages is more than three times that of the wet land of Vellikurichi. So they had undoubtedly a preponderating interest in the maintenance of the tank. The tank is situated in the plaintiffs' Zemindari and they are the owners of the soil and the tanks. There is nothing in the terms of the notice which the plaintiffs gave to the defendants or in any other evidence to show that the plaintiffs were executing Jhe repairs for the benefit of the defendants. The fact that it is this tank which irrigates their own land and that land is much larger in extent than the wet lands in Vellikurichi village would suggest that when they executed the repairs, they did so for their own benefit. If they did not keep the tank in order, their lands would suffer and we have not been referred to any circumstance which would suggest the inference that they wanted to repair the tank not primarily for the benefit of their own lands but for the benefit of the defendants' lands. The natural inference is that as they had to repair the tank in order to cultivate their own lands, and did so for that purpose, no doubt the repairs would inevitably and incidentally also benefit the defendants' 'lands'. But that in itself would not show that the plaintiffs' intention in executing the repairs was to benefit the defendants. The law is not that, when a person does any act for his own benefit, and that act inoidentally 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. That certainly is not the scope of Section 70 and we have not been referred to any authority that, apart from all question of intention of the person who seeks to charge the defendant for the benefit which he has derived from a certain act of his, the defendant would be liable, if the act happens to be beneficial to him. That, at any rate, is not the scope of Section 70, and none of the cases which have been referred to at the Bar have in any way minimised the importance of the condition that the act must be done for the benefit of the defendant. This proposition has never been doubted, though in some cases the question did not really arise, for instance, where payments were made in discharge of arrears of Government revenue by a co-owner of the property or by any other person interested in making the payments. To cases of that class which have been brought to our notice, Section 69 would apply.

5. The history of the present case is this. The documents show that before 1820, the Sivaganga Zemindar used to receive a certain periodical payment from the Inamdars in the shape of Kulavettu, that is to say, annual payment in connection with the digging of, or repairs to, the tank. This appears from Exhibit III. However by 1852, the demand made by the Zemindar was not for any Kulavettu but for the defendants' share of the cost of repairs, which is something quite different from Kulavettn. There is nothing whatever to show that at any time, the Inamdars acceded to this demand. Only once in 1854, the Court of Wards, or rather, the Collector, who was in charge of the Zemindari at the time, though it does not clearly appear in what circumstances, did, under Section 32 of Regulating XXVII of 1802, realise a certain sum of money in connection with the repairs to the tank. That section deals only with the payment of Today or of advances of money for repairs of tanks. The plaintiffs now seek, not to recover any advance of money made for repairs, but to enforce contribution towards the cost of repairs already executed without authority from the Inamdars. Section 32 of Regulation XXVII of 1892 would have no application to the present claim of the plaintiffs. If, therefore, the Collector attached the property of the Inamdars and under coercion of such process realised any proportion of the costs of repairs executed by the Zemindar, he clearly acted beyond the powers given to him under Section 32 of the Regulation. If, on the other hand, the provisions of the Regulation were properly enforced, that is to say, in order to realise the advances made by the Zemindar or by the Government, then such enforcement can in no way support the present case of the plaintiffs. So I do not think that the plaintiffs now in any way rely on what the Collector realised in 1864 under coercive process. It is conceded that that was the only time when any money was actually realised, so far as the evidence goes, from the Inamdars in connection with any repairs to the tank. But the Inamdars have throughout been protesting against any obligation to pay anything for repairs done against their wishes or without their consent.

6. Then certain accounts have been produced of the year 1880 and thereabouts. In one or two instances, a small sum of money is shown as due from the Inamdars of Vellikurichi on accepting of repairs to this tank. But it is not proved by any evidence that anything was paid on this account by the Inamdars. The evidence, both oral and documentary, shows clearly that there had been repairs done to this tank since 1854, There is a body of evidence to this effect of witnesses, whom I do not find any reason for disbelieving, and the accounts produced by the plaintiffs themselves corroborate that evidence. One witness says that, sometime ago, repairs which cost about Rs. 2,000 were executed. If, as a matter of fact, the Zemindar was conscious that he had a right to levy contribution for repairs or at any rate that he had not lost that right if he had it at any time, it is not conceivable that since 1884 to the date of the present suit, he would not have made any serious attempt to realize the share of the defendants' liability. In fact, the result of the entire evidence is that, at no time, the Inamdars either actually paid anything for the repairs or that their liability for such repairs was ever established or admitted. I have already pointed out that what the Collector did under Section 32 of Regulation XXVII of 1802 is of no importance in the absence of clear evidence as to the circumstances in which the money was realised, and so far as it appears, his action does not seem to have been authorised by the law.

7. Then the plaintiffs sought to base their case on a general custom, to the effect that every village held under a Zemindar by way of Inam or similar tenure is liable to contribute to the cost of repairs done to their sources of irrigation, whether tanks or channels. The evidence that we have on record falls far short of establishing any such general custom. We have been referred especially to the accounts maintained by the Zemindar and produced by the plaintiffs, Exhibits F, G, H and M series They do not extend lower down than 1886, and it is not possible to extract from these accounts sufficient particulars upon which one could find with any amount of certainty that a custom such as that alleged prevailed in the Zemindari. We ought to know much more about the circumstances in which the payments were made by the different Inamdars or holders of Devastanam and other villages. It is not even clear that such payments as were made were not made voluntarily or under contract. It is not shown at what rate the contributions were made, or on what basis. We do not know anything about the conditions of the tenures of the villages from the proprietors of which these contributions towards the cost of repairs, either to channels or to tanks, were received. Unless these points are cleared up, it could not be said that any custom has been established. Then it is remarkable that, so far as Vellikuriohi is concerned, there is only a single instance which has been already alluded to in which a small payment is shown as due from the Inamdars. I cannot, upon the evidence in the case, hold, whatever else the accounts of the Zemindar might show in this connection, that the Inamdars either agreed to make any such payment or did in fact make it. Whatever might be the case with the other villages shown in the accounts, they certainly do not make out a case against Vellikurichi. Even if it be taken to be sufficiently established that a general custom exists in the Zemindari such, as is contended for by the plaintiffs, the evidence and the circumstances above alluded to indicate that, so far as Vellikurichi is concerned, the custom has lost its force for a very long time if it ever applied to it. In this connection, I may refer to what happend in the lower Court with respect to the evidence adduced by the plaintiffs to prove a general custom. It is stated in paragraph 38 of the judgment, from which it would appear that the Subordinate Judge at one stage of the trial formed an opinion that a general custom had been proved by evidence adduced by the plaintiffs, and he intimated to the plaintiffs that it was unnecessary for them to encumber the record with further documents in support of the alleged custom. Such an observation on the part of the Subordinate Judge was unjustified, as it might have had the effect of deterring the plaintiffs from adducing all the evidence they had on the point. But whether they were in fact so deterred and whether any further evidence which they were in a position to adduce would have improved their case, is not at all made clear. No application has yet been made to us to admit into evidence any documents wrong fully rejected by the Subordinate Judge; nor is the learned Vakil for the respondents abet to state what the materiality is of the evidence which the respondents might have produced. None of the documents are here. And the only inference I can draw from what has happened is that it did not strike the respondents or their Pleaders that any further evidence which they could have produced would have improved their position so far as the question of custom was concerned. I hold that the plaintiffs have failed to make out their right.

8. The question relating to limitation discussed at the Bar does not arise, but I may state that it is difficult to see how Article 61 of the Limitation Act has any application to the facts of the case. Under Section 70 of the Contract Act, the plaintiffs would have no cause of action merely because of their having incurred expenses in executing the repairs. It has to be further made out that the benefit of those repairs was enjoyed by the defendants. Both the elements must be present in order to constitute a cause of action, that is, the incurring of cost by the plaintiffs and the enjoyment of the benefit by the defendants. Article 61 applies to cases of money payable to the plaintiff for money paid for the defendant and time runs from the date when the money is paid. But here it cannot be said that the payment made by the plaintiffs to the contractors was money paid for the defendants. Under Section 70, if the case of the plaintiffs fell within it, what they would be entitled to is compensation for the benefit enjoyed from the act done by the plaintiffs for the defendants. If, for instance, defendant never derived any benefit from the plaintiffs' act, the mere payment of money by the plaintiffs to contractors who executed the repairs would not entitle them to any compensation under Section 70. The only Article that would be applicable to a case like this, if the plaintiffs were able to establish their right, would be Article 120, which is the residuary Article dealing with suits for which no period of limitation is provided elsewhere in the First Schedule, and the right to sue would accrue from the date of the doing of the repairs and the enjoyment of the benefit thereof by the defendants. On that view of the matter the suit would be in time.

9. I may also mention that the Subordinate Judge has held that the plaintiffs are entitled to a charge on the village for the share of costs payable by the defendants, None of the cases cited at the Bar support: that proposition. One case in which there are some expressions to be found which, might favour the Subordinate Judge's views, viz. Rajah of Vizianagram v. Rajah Setrucherla Samasekhararaz 26 M. 686 has no analogy, to this case. There the payment was by one co-owner for arrears of revenue due to the Government, and the charge on the property, which was saved by such payment might be supported on the basis that, the person making the payment should be allowed in equity to stand in the shoes of the Government, who under the Act have a lien for arrears of revenue on the lands concerned. It is difficult to see how such a charge could be sustained under Section 70 of the Contract Act. Then the Subordinate Judge seems to think that the doctrine of salvage lien has some application to this case. It is rightly conceded, however, by the learned Vakil for the respondents that he could not uphold that view of the law.

10. I, therefore, allow the appeal and reverse the judgment of the Subordinate Judge. The suit will be dismissed with costs here and in the Court below.

11. The memorandum of cross-objections also fails and is dismissed with costs.

12. Oldfield, J.--The plaintiffs have sustained their claim with reference either to Section 70 of the Contract Act or custom; and in either case, the burden of proving all the necessary facts is entirely upon them. As regards Section 70, it is only necessary to deal with one of the requisites for its application. It requries that the plaintiff shall have done something for the defendant. In this case, the plaintiffs allege that they have made the repairs for the defendants. But it is difficult to say exactly in what sense they have done so, or that they have shown that they have done so in any sense other than the very general one, that the defendants have derived or may derive some advantage from the repairs. That does not seem to be sufficient, and it is not the current of decisions that it is so. I refer to Rajah of Pittapur v. Secretary of State 25 Ind. Cas. 783 as an instance of a case very similar to the present; and it is clear there that the learned Judges did not think that the work connected with an irrigation source was done for the defendant on the grounds either that the defendant derived some benefit from it or that he was asked to contribute to it. It is not desirable to attempt to formulate any general test as to whether a thing is done by one person for another; but, it is, I think, sufficient to say that what is done cannot be described as done by one person for another, unless it can be shown that, but for the existence of that other's interest, it would not have been done. Here we have evidence of demand, and it may be assumed for the present that there is evidence of benefit conferred. But there is nothing further, since the evidence of demand, does not, in any way, show that the intention was to do the work, only if the defendants wanted it done.

13. There was a suggestion in the course of the arguments that the plaintiffs' attitude was indicated directly by the fact that they had actually supplied other villages besides those, which have hitherto taken water from the tank, with irrigation from the increased supply, which the tank is alleged to have received in consequence of these repairs. Only two cases were, however, referred to, in two years, and the evidence is conflicting regarding them. Under that head, therefore, it does not seem to me that anything is proved. Then as regards the Ayacut, we have the fact that one portion of it is in a Devastanam village; but it is insignificant and may be neglected. Roughly, the defendants own a little over a quarter. But that fact, in the absence of anything else adduced, does not seem to be sufficient to enable us to assume that the defendants' interest in the Ayaout was the factor which determined the plaintiffs' favour of making these repairs. When the plaintiffs owned such a preponderating interest, as they did, in the property, the burden is on them to show that they did not make the repairs for themselves and that they did make them for the defendants, and it does not seem to me that they have discharged that burden. In these circumstances their case based upon Section 70 of the Contract Act fails.

14. Then as regards custom, I entirely agree with my learned brother's conclusion, and only wish to say a few words regarding the particular custom alleged with reference to the liability of the defendants' village. Really, there is very little evidence regarding that liability except that which is afforded by Exhibit S, an order from the Collector in 1852 to the Manager of the Estate, in which the tank is situated, and which is apparently in the possession of the present plaintiffs. The Collector's position in this mattar is not clear. It is suggested on the one side that he was acting as the Agent of the Court of Wards and that he really was simply a managing superior and was in the position of Zemindar. On the other hand, it is suggested for the plaintiffs, though nothing has been adduced to prove it, that he attached the Estate for the recovery of revenue due on behalf of Government. In Exhibit S, we simply have a reference by the Collector to the fact that Kulavettu, a periodical charge for tank repairs payable by the Inamdar or tenant to the proprietor, had been hitherto levied on this village. But the only evidence the Collector refers to in support of his statement is the information he had received from a Gumasta, whom he names, that in the accounts of one year 1816, about 40 years before he was writing, this Kulavettu had been entered. That is all there is by way of an affirmative statement regarding Kulavettu. The Collector asked the Manager to try and find further evidence and to look to other accounts in order to find it. It is clear that we have here only a very insufficient foundation for a conclusion that any custom ever existed. If any custom did exist, this indicates the existence of only a custom to make a periodical charge and not of a custom which would enable the proprietor or the plaintiffs acting as his representatives to make a definite demand on a particular property for an amount proportionate to the defendants' interest in the tank towards making all these repairs. After Exhibit S, we have not got a reply to it, and we do not know whether anything was found by the Manager by Searching the accounts. So far, therefore, the custom alleged is only as to Kulavettu; and it rests entirely upofi what the Collector heard from a Gumasta about an account written 40 years before, which, so far as it appears, no one else ever saw.

15. The next letter Exhibit S-1 does not mention any further information than that the Collector, for reasons which are not very clear, considered himself justified in directing the Manager to recover a lump sum, which was being claimed on account of repairs; and he directed him to recover it under Section 32 of Regulation XXVII of 1802. That section, as my learned brother has pointed out, is, on the information before us, inapplicable to the recovery of any such sum, and the Collector's action must be taken as entirely unauthorized by law. It is in evidence that money was recovered in this illegal way which obviously had nothing to do with the assertion of the custom, and cannot be considered as equivalent to one. After that, there is nothing more for about 30 years. We then have got one or two entries to the effect that insignificant sums are due on account of the repairs. But whether they were ever collected or not there is no evidence to show. On the other band, it must be borne in mind that the plaintiffs, though they are lessees of the estate, do not suggest that they are under any disability in the way of producing the accounts or that ordinary accounts of the estate have been withheld from them.

16. There is evidence that in comparatively recent times, the tank has been repaired at very considerable expense and we have had no excuse offered for the plaintiffs' failure to produce distinct evidence as to the making of these repairs and as to the recovery of contribution, if any was recovered from the defendants. It seems to me in these circumstances that the plaintiffs have adduced practically nothing in favour of any custom as binding on the defendants' village. I do not wish to add anything to what my learned brother has said regarding the more general custom alleged except that the plaintiffs, who will have all the estate records in their possession, should have been able, if their case was correct, to produce very much clearer evidence either regarding the period to which the accounts they have produced relate or regarding the later period; and it seems to me that their explanation as to what happened in the lower Court for not doing so cannot be accepted, when, as is the case, they have not made any definite request here for an opportunity to repair their failure to adduce evidence at the trial.

17. Regarding limitation, I think that Article 61 is clearly inapplicable. So far as the claim is made with reference to Section 70 of the Contract Act, it is an essential part of the cause of action under that section that the defendants shall have received a benefit from what the plaintiffs have done; and apart from the fact to which my learned brother has referred that Article 61 refers only to money paid for the defendants, and we have no such payment alleged here, there is a further objection to the application of that Article, that there was at the time of payment no question of any immediate benefit being conferred on the defendants by it, for it is not suggested that the benefit derivable by the defendants from the repairs to the tank could have arisen, when the money was paid. No doubt, there are cases in which Article 61 may be applied to claims under Section 70. Such application will be legitimate in cases of the common type concerned with payments of revenue or decree amounts on the part of the defendants. The benefit to the defendants is then immediate; but it is quite otherwise, when, as here, the benefit will only arise at a subsequent stage, and the plaintiffs' cause of action will not be complete until that subsequent stage is reached. In these circumstances, no other article having been suggested, we must, apply Article 120.

18. With these observations, I concur in the decretal portion of my learned brother's judgment.

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