1. Plaintiff and defendant each own lands under two tanks, the tanks themselves being owned by plaintiff. The tanks were breached. The defendant pressed to have them repaired after joint consultation and under the supervision of their respective agents. The plaintiff preferred to do the work himself, and demanded contribution from the defendant. Hence this suit for Rs. 554-1-1 alleged to be defendant's share of the costs. The trial Court decreed the suit; the lower appellate Court decreed for Rs. 277-0-6. The defendant appeals.
2. The plaintiff sued originally on the assumption that he had acted in consultation with defendant's agent as demanded by defendant, but this has been found to be untrue. He therefore falls-back upon the plea that there was either an implied contract, or he is entitled to compensation under Section 70', Contract Act. As soon as it is found that plaintiff did not consult defendant's manager as stipulated by defendant, it must be held that he did not accept defendant's offer and there can be no question of implied contract.
3. Whether plaintiff can claim compensation under Section 70 depends upon his having done the work lawfully for defendant, not intending to do so gratuitously, and upon defendant having enjoyed the benefit. There is no doubt that the work was done lawfully, and that defendant had enjoyed the benefit. Doing anything for another person means in some way taking his place as the doer. That is the first meaning of 'for' ' representing, ' 'in place of, 'as the Oxford Concise Dictionary has it. There is no justification for importing into this section looser genses of 'for.' I am writing this for you 'strictly means that you should be doing the writing and I am doing it in your place.' It might mean, 'for your amusement, or edification;' but that is not the sense in which the preposition should be understood in Section 70. A tank owner at the upper end of an irrigation system, if the result of his repairs is to pass a greater volume of water down to the lower cultivators may say generally, '1 am doing this for you,' and pose as a public benefactor. But, strictly speaking, he can only say it to those, who, if he did not do the work, would have to do it themselves, and whose place he is taking. The plaintiff in this case is admittedly the owner of the tanks, and the defendant has no right to enter upon plaintiff's property and execute repairs. He might be admitted to share in the work of repair by agreement, but otherwise he has no locus standi, no place. Therefore the plaintiff cannot be said to be taking the defendant's place when he does the work of repair, to be doing work which otherwise defendant should be doing; in short, to be doing anything for defendant. Nor will it help plaintiff to plead that he did not indend to do the work gratuitously. ' Does anything for another person not intending to do so gratuitously ' means that when a person has proved that he did the thing for another person as explained above, he must then prove that he did not intend to do it gratuitously. For instance: suppose a man maintained a relative and claims compensation out of that relative's estate, beyond proving that he acted for the relative, he must prove that he did not intend to act gratuitously. But until a person has succeeded in proving that he acted for another, the question whether he acted gratuitously or not does not arise. He cannot say I knew that so and so would benefit from my act, and I hoped to get something from him, therefore I am entitled to compensation.' He must say, 'I acted in his place, therefore I am entitled to compensation, because he has not proved that I intended to act gratuitously; ' and if plaintiff has not proved that he acted in defendant's place, the question of gratuitousness does not arise at all.
4. It so happens that the learned District Munsif has exactly reversed the proper. reading of the section. He takes it-(para. 7) as if it read; where a person lawfully does anything, not intending to do it gratuitously for another person, and such other person enjoys the benefit thereof etc., etc. On such a reading, in the example given above, the owner at the head of an irrigation system could claim compensation right down from every one who benefited. His repairs would be lawful; he could plead that ha had no intention to act gratuitously; and all the others enjoyed the benefit; and nothing more would be necessary, on this interpretation, to complete the claim for compensation under Section 70, which is absurd.
5. The learned Sub-Judge has taken the same ground, and in stating the essential ingredients of a claim under Section 70 he has omitted the preposition 'for' altogether. In fact his argument in para-4 leads even more directly than that of the lower Court to the same reductio and absurdum.
6. But the lower Courts have this justification that their position is largely based upon Damodara Mudaliar v. Secy. of State  18 Mad. 88. On p. 91 there is the same statement of ingredients; though on p. 92 the Court addresses itself particularly to the question involved in 'for.' A person may have his own interest in the work and yet do it for another also. The fact that the latter has also derived benefit from the work does not necessarily show that it was done for him (i. e., 'for' as remarked above must be confined to its strict and not extended to its wider sense). So a finding was called for, and in due course the District Judge submitted that the plaintiff did not intend to do the work gratuitously, and the defendants enjoyed the benefit. The defendants were accordingly ordered to pay compensation. But it will be observed that no finding was called for on the question whether plaintiff did the work for the defendant, the reason being that in that particular case he obviously did. The tank belonged to the defendants and originally served eleven zamindari villages of theirs. Seven of these came under Government. Government then stepped into the defendants' place and repaired the tank for the defendants exactly in that strict sense of 'for.' This point is appreciated in O.R.P. 273 of 1902, an unreported case referred to in Yogambal Boyee Ammani Animal v. Naina Pillai  33 Mad 15. The facts of this revision case closely resemble the present case. The Government repaired their own tank in Tinnevelly District, and sued the Nanganeri Mutt because its lands had benefited. The Subordinate Judge held that under Section 70, Contract Act, one person can be taken to have done something for another only if the latter was bound to do it (again the strict sense of 'for'), and not merely when the former did it for his own benefit and the latter also reaped the benefit. Benson and Bhashyam Iyengar, JJ. refused to revise this decision holding that the tank was the sole property of the Government though it was also a source of irrigation for defendants' lands. Section 70 had no application to the matter:
18 Mad. 88 is clearly distinguishable as in that case the tank was and continued to be the property of the zamindar who prima facie was found to keep it in repair (and therefore, the person who repaired it, prima facie did it for the zamindar).
7. The matter is further considered in Yogambal Boyee Ammani Ammal v. Naina Pillai  33 Mad 15, and clearly Damodara Mudaliar v. Secy. of State  18 Mad. 88 is not authority for the proposition that if the work is not intended to be done gratuitously, and if another benefits from it, that other is liable to pay compensation, regardless of whether the work was or was not done for him. It must be held that in the circumstances of this case the plaintiff was not acting for the defendants, nor in pursuance of any agreement express or implied and is therefore not entitled to compensation. The appeal is allowed; and plaintiff's suit dismissed with costs throughout.
Ananthakrishna Ayyar, J.
8. I agree.
9. Suit to recover Rs. 554-1-1 on the -allegation that the plaintiff spent Rs. 1,156-3-1 in connection with the repairs of two tanks and that the defendant was bound to contribute 51/114ths share of the said expenses with interest since the plaintiff owned 63 kotas extent of land under the tanks and the defendant owned the remaining 51 kotas extent of land. The plaintiff alleged that the two tanks were the properties of the plaintiff; that the said two tanks had an ayacut of about 114 kotas of land of which about 63 kotas were owned by the plaintiff while the defendant owned about 51 kotas; that the tanks breached in 1910 and the breaches remained unclosed till 1920, when the plaintiff filled up the breaches and repaired the said tanks; that the plaintiff intimated the necessity for repair to the defendant and that the defendant replied that he had no objection to the payment of his share and that the defendant was benefited by the said repairs. '
10. The defendant denied his liability to contribute, and stated that the repairs were done without consulting the defendant, that though the defendant offered to co-operate with the plaintiff in doing the work, if the same be carried out under the supervision of the managers of both the plaintiff and the defendant so that they may take check-measurements then and there and pay the defendant's share, the plaintiff's manager refused the offer and stated that the defendants' manager had not even the right to step into the tanks and that in the circumstances the plaintiff had no right to claim contribution from the defendant.
11. The District Munsif found that the tanks breached in 1910, that the breaches remained unclosed till 1920, when the plaintiff effected the repairs. He also found that the defendant had been enabled to have wet cultivation on his lands on which only dry crops had been raised between 1910 and 1920. He also found that the plaintiff did not intend to effect the repairs gratuitously and that the repairs were done lawfully. With reference to the argument urged by the defendant that the defendant could not be made liable unless it was shown that the repairs were done for (on behalf of) the defendant the District Munsif observed as follows:
The defendant had been persistently calling upon the plaintiff to execute the repairs and save him from loss and also had offered to contribute for the expenses. There can be no doubt therefore, that the repairs were done for - the benefit of the defendant and it is immaterial that the plaintiff also was benefited by the act, for the plaintiff claims not the entire costs of the repairs but only the proportionate amount regard being had to the extent of land owned by each.
He therefore, passed a decree in favour of the plaintiff for the amount sued for. On appeal the learned Subordinate Judge confirmed the District Munsif's finding and held that the defendant was liable to contribute.
12. On the question of the defendant's liability to contribute the learned Subordinate Judge held as follows:
The conditions necessary to bring the case within the operation of Section 70, Contract Act, are (1) that the repairs were done lawfully,  33 Mad 15 that the plaintiff did not intend to do the work gratuitously and (3) that the defendant enjoyed the benefit of the work. I agree with the lower Court in holding that all the three conditions have been satisfied in this case.
13. But having regard to the unsatisfactory nature of the evidence let in by plaintiff about the amount spent for repairs, the learned Subordinate Judge modified the decree of the District Munsif remarking:
Making allowance for exaggeration and tinder-estimate, I think that the plaintiff may be awarded half the sum claimed by him.
14. Accordingly the decree of the District Munsif was modified by a war ling the plaintiff Rs. 277-0-6 instead of Rs. 554-1-1.
15. The defendant has preferred this second appeal and on his behalf his learned ' vakil; Mr. A. Krishnaswami Ayyar, contended before us that the provisions of. Section 70, Contract Act, had not been complied with in this case, and that the defendant was not bound to make any contribution. The learned vakil argued that under Section 70 the plain-tiff was bound to prove that he 'lawfully' did something 'for' the defendant, and that the defendant enjoyed the benefit thereof. In the present case, he argued that having regard to the fact that the plaintiff is the owner of the tanks in question and also entitled to a major portion of the land under the ayacuts, and having also regard to the fact that the defendant declined to make any contribution except on condition of the work or repairs being executed under the joint supervision of the managers of the plaintiff and the defendant which proposal of the defendant was not accepted by the plaintiff, the plaintiff having in fact executed the repairs in his own way and under his sole supervision, it should be held as a matter of law that the plaintiff executed the repairs on his (plaintiff's) own behalf only and not for the defendant. He also contended that as the defendant was given no intimation before the repairs were effected, he was given no option at all in the matter and consequently it could not be said that the defendant 'enjoyed' the benefit, since it could not be held that the defendant enjoyed a benefit which he had no option to refuse. He relied, among others, on the cases reported in Yogambal Boyee Ammani Ammal v. Naina Pillai  33 Mad 15, Rajah of Pittapur v. Secy. of State  16 M.L.T. 375, and Viswanatha Vijia Kumara Bangaroo v. R.G. Orr 45 Ind.Cas. 786.
16. On behalf of the respondent it was urged by the learned Counsel, Mr. Srinivasa Gopalachari, that the questions involved in this case were all questions of fact and that both the lower Courts had found that the plaintiff did not intend to do the work gratuitously (from which the learned Counsel argued that it must be taken to have been found that the plaintiff executed the repairs for the defendant also) and that the defendant had already enjoyed the benefit of the repairs. It was also contended that if as a matter of fact the defendant had enjoyed the benefit of the repairs, it was not) necessary that he should have been consulted or given an option before the repairs were begun. The lower appellate Court has remarked in para. 4 of its judgment that it was ' conceded that the defendant had enjoyed the benefit of the repairs '; and having regard to the admitted fact, that the defendant had been enabled to have wet cultivation on his lands on which only dry crops had been raised while the breaches continued, the lower Courts were justified in the finding arrived at by them.
17. In Krishna Chandra Deo v. Srinivasa Charlu  38 Mad. 235, it was held that the defendant need not have an option of declining the benefit, if by that is meant that before the benefit was conferred, he must be given the choice of accepting or declining it. For the purposes of this case, we are prepared to accept this view of the law, though there seems to be some difference of judicial opinion on this point.
18. But to make the defendant liable under Section 70 it is necessary for the plaintiff to prove also that he executed the repairs for the defendant. It was argued that when once it is proved that the plaintiff is the owner of the tanks and also of a major portion of lands under the ayacuts, it must be held as conclusive and as a matter of law, that the plaintiff executed the works on his own behalf only. I am not prepared to accept this contention of the appellant. As observed by Sadasiva Ayyar, J. in Krishna Chandra Deo v. Srinivasa Charlu  38 Mad. 235:
I do not think that these oases intend to lay down generally that where a person is interested in making a payment, it cannot be held ' under any circumstances' that he intended to act for the other party also. On the contrary the observations in Yogambal Boyee Ammani Ammal v. Naina Pillai  33 Mad 15 clearly show that from the circumstances it might be inferred that the plaintiff intended ' also to act for the defendant. ' I think the facts and circumstances of the present case clearly show that all payments made after September 1903 were intended by the plaintiff to be both on behalf of the plaintiff and of the defendant.
19. In the same case Miller, J. observed as follows at p. 240:
He will have then to show that what he did was done for the defendant, and that it clearly may be very difficult for him to show that in some cases, especially in cases where his own interest is manifestly predominant. If he pays in his own interest, he will not ordinarily be held to have made the payment for the defendant; but whether he did so or not is, it seems to me, a question of fact in each case.
20. In Yogambal Boyee Ammani Ammal v. Naina Pillai  33 Mad 15, Sankaran Nair, J. observed:
With reference to the first part of the section it was rightly pointed out that the fact that the defendant was benefited by a work does not necessarily show that it was done for him; and that while a plaintiff's interests in the matter may show that he was acting on his own account only, he may also intend to act for the defendant. This also is true. Prima facie, if the plaintiff is interested in the doing of a thing he would not be entitled to ask the Court to presume that he did it for the defendant. But by proof of special circumstances or otherwise ha might show that he would not have done it if he had no reasonable grounds to expect payment from the defendant.... If the tank had belonged to the zamindar only, then there would be a very strong presumption that the repair was made for him.
21. Similarly in the Pittapur case  16 M.L.T. 375 of 25 I. C. Ed.], Spencer, J. remarked:
As for the application of Section 70, Contract Act, if a person does a thing primarily for his own benefit and is benefited thereby, it must always be a question whether he did not intend to do it gratuitously as regards others who happen to be benefited by the same act. In this respect I agree with the observations of Miller, J. in the case in Krishna Chandra Deo v. Srinivasa Charlu  38 Mad. 235: see also Viswanatha Vijia Kumara Bangaroo v. R.G. Orr 45 Ind.Cas. 786.
22. I agree that when the owner of a tank effects repairs to the same, the presumption is that he did the same for his own benefit only. But it may happen that the owner of the tank had only an insignificant area of wet land under its ayacut or had no wet lands at all under it; or it may be that the owner had other irrigation facilities with reference to those lands, whereas the defendant had to depend solely on the tank in question. It may also be that the plaintiff, the owner of the tank also owned most of the lands under its ayacut and the defendant had only a right of easement to take water for a comparatively small extent of lands. It may also be that the defendant had also other sources of irrigation; in respect of his lands. It may be that other circumstances also exist which would be relevant in considering the question whether the plaintiff did the work for himself alone or also on behalf of the defendant. Prima facie presumptions arising in the first instance might be strengthened or rebutted by other circumstances and evidence appearing in the case. It is a question of fact in each case whether the plaintiff did the work for himself alone or for the defendant also.
23. In the case before us the lower appellate Court has not specifically directed its attention to this aspect of. the case and it has not recorded a definite finding whether the plaintiff executed the repairs for the defendant also.
24. With reference to the contention of the learned vakil for the appellant that in cases where the defendant had already expressed his unwillingness to agree to the plaintiff's acts, he could not be made-liable to the plaintiff, it seems to me that the contention should be upheld. Otherwise the result would be that the plaintiff should be held to have done something 'lawfully' 'for' the defendant when the defendant already informed the plaintiff that he did not want it. This position is supported also by authorities. In Krishna Chandra Deo v. Srinivasa Charlu  38 Mad. 235, already referred to, Sadasiva Iyer, J. at p. 243, says as follows:
For instance if the benefit is conferred not with standing notice of protest of the man benefited that he did not want the benefit proposed to be conferred on him, the act could not be said to have been done on his behalf. That seems to have been laid down in Damodara Mudaliar v. Secretary of State  18 Mad. 88 and also in the Privy Council case in Ram Tuhul Singh v. Bisewar Lall Sahoo  2 I.A. 131.
25. In Vishvanatha Vijia Kumara Banaroo v. R.G. Orr 45 Ind.Cas. 786 (the Sivaganga lessee's case Abdur Rahim and Oldfield, JJ. were also of the same view. In that case before commencing the repairs the plaintiffs intimated to the defendants their intention to do so and called upon the defendants to pay their rateable share of the expenses. The defendants replied that they did not want the repairs and refused to pay any portion of the expenses. The plaintiffs, however, completed the repairs and claimed contribution from the defendants relying on Section 70, Contract Act. The Court held that even on the assumption that the defendants did in fact enjoy the benefit of the repairs done by the plaintiffs, the defendants could not be made liable since they had all along been refusing to pay anything for the repair of the tank. In Leake on Contracts, 6th edn., at p. 34, it is mentioned:
Still less can any promise be presumed from a consideration performed against the will of the other party though he may derive benefit from it.
26. Reference may also be made to p. 353 of Treatise on the law of Quasi-Con-tracts' by W. A. Keener:
If the service is rendered against the defendant's protest, where he is under no obligation to preserve the property there can be no recovery.
27. The learned author quotes a passage from the judgment of Lord, J., in 130 Mad. 596 to the following effect....
There may be cases where the law will imply a, promise to pay by a party who protests that he will not pay; but those are cases in which the law creates a duty to perform that for which it implies a promise to pay, notwithstanding the party owing the duty absolutely refuses to enter into an obligation to perform it. The law promises in his stead and in his behalf. If a man absolutely refuses to furnish food and clothing to his wife and minor children, there may be circumstances under which the law will compel him to perform his obligations, and will of its own force imply a promise against his protestation. But such promise will never be implied against his protest, except in cases where the law itself imposes a duty; and his duty must be a legal duty. The argument of the plaintiff rests upon the ground that a moral duty is sufficient to raise an implied promise, as well as a legal duty. He cites no authority for this proposition, and probably no authority can be found for it. The common law deals with and defines legal duties, not moral. Moral duties are defined and enforced in a different forum. Under the particular circumstances of this case, it would be futile to inquire what moral duties were involved, or upon whom they devolved. It is sufficient to say that no such legal duty devolved upon the defendant as to require him to pay for that for which he refused to become indebted.
28. Under Section 70, Indian Contract Act, to enable the plaintiff to recover, he should (in addition to complying with other conditions) prove that he did it (1) lawfully and (2) that he did it 'for' the defendant.
(1) Section 70, Contract Act, uses the word 'lawfully' in this connection. It says 'where a person lawfully does anything for another person...' Taking 'lawfully' to mean 'bona fide' as seems to have been laid down in a recent decision in Muthayya Chetti v. Narayanan Chetti : AIR1928Mad317 , by Officiating Chief Justice and Reilly, J. and by Sadasiva Iyer, J., at p. 244 of 38 Mad. I think it cannot be said of a plaintiff that he did a thing 'lawfully' within the meaning of the section for the defendant with a view to claim contribution from him when the defendant had already informed the plaintiff that he did not want the thing to be done for him and had denied his liability to pay. (2) Nor is it clear in this case that the plaintiff did the act in question 'for' the defendant.
29. In the present case the defendant had already informed the plaintiff that ha would contribute only if the work was done after joint consultation and under the joint supervision of the defendant's manager and the plaintiff's manager; the plaintiff did not agree to that, but seems to have informed the defendant that the defendant had not even the right to come near the tanks. The plaintiff carried on the repairs in his own way and under his exclusive supervision. The plaintiff had motive to effect the repairs, since the same benefited himself substantially. In this view it must be held that the defendant had repudiated his liability to contribute and that the plaintiff did not do anything 'lawfully' and' for' the defendant. The suit for contribution under Section 70, Contract Act, is accordingly not maintainable. The second appeal is allowed and in reversal of the decrees of both the lower Courts, the plaintiff's suit is dismissed with costs.