Ramachandra Iyer, J.
1. This appeal involves the determination of a question as to the scope of Section 41 of the Specific Relief Act,
2. One Vinayagam Pillai owned the suit properties. He executed a sale of them to his second wife, Vellayammal. She pre-deceased her husband. Her mother, Krishnammal, claiming to be her heir sold the properties, which, ultimately vested in certain alienees of whom the appellant is one. Vinayagam Pillai died leaving behind him his first wife, and respondents 1 and 2, his sons through her. Respondents 1 and 2 filed the suit, out of which this appeal arises, for recovery of possession of the properties from the alienees on the footing that they as the heirs of Vinayagam were entitled to the same. They impugned the binding nature of the sale by their father to Vellayammal and also of Krishnammal's right to convey the suit properties.
3. The alienees resisted the suit by pleading that Krishnammal was the lawful heir of Vellayammal as according to them the latter's marriage to Vinayagam was in the Asura form. They also pleaded that if Krishnammal's sale were held to be not binding on respondents 1 and 2, they should reimburse the alienees to the extent to which the consideration for the sale went in discharge of the debts of Vinayagam. The appellant was the second defendant to the suit. He claimed that the consideration of Rs. 900 paid by him went in discharge of a decree against Vinayagam and that therefore in equity, the respondents should pay him that amount before possession of the properties were directed to be delivered. '
4. Both the lower Courts found that the respondents 1 and 2 were not born on the date of the conveyance by their father to his second wife, that the marriage between the said two persons was in the Brahma form, and that the former succeeded to the properties left by latter on her death. The appellant, the second defendant to the action, one of the alienees, has filed this second appeal.
5. Krishnaswami Nayudu, J., who heard the appeal, accepted the finding of the lower Court that the marriage being in the Brahma form, Vinayagam would succeed to the properties left by Vellayammal in preference to her mother. On the alternative claim for repayment of the consideration for the sale, the learned Judge was of the view that the rule enunciated in Section 41 of the Specific Relief Act could be applied only when the Court adjudged cancellation of an instrument in the cases provided for in Section 39 of the Specific Relief Act. But he held that there was a conflict between the decisions in Ammani Ammal v. Ramaswami Naidu (1918) 37 M.L.J. 113 and Venkama Naidu v. Sayed Vilijan Chisty : AIR1951Mad399 and the appeal was thereupon directed to be posted before us.
6. The appellant who derives title under Krishnammal acquired no title by the purcnase. Krishnammal's claim was adverse to the real owner Vinayagam and the sale by the former could in no sense be on behalf of the latter. It is no doubt true that the price paid by the appellant was utilised for the payment of a decree debt of Vinayagam for which the property sought to be conveyed was attached but that payment was made under the contract with Krishnammal. The claim of the respondents is by virtue of their own title which remained unaffected by the sale deed, executed by Krishnammal. That sale was in assertion of a title hostile to Vinayagam and could neither avail against the respondents' title nor cast a cloud on it.. The question then is whether in such a sale where the consideration went for the benefit of the owner, the alienee could invoke the provisions of Section 41 of the Specific Relief Act as to claim compensation from the owner of the property to the extent to which his moneys went in for his benefit.
7. In Ammani Ammal v. Ramaswami Naidu (1918) 37 M.L.J. 113, a minor owned the property. His guardian claiming the property to be his own purported to sell the same and part of the consideration for the sale went in discharge of debts binding on the minor. On attaining age of majority the minor sued for a declaration that the sale was not binding on him, and sought to recover possession and mesne profits from the alienee. The sale having been held not to convey a valid title to the alienee, the latter claimed to be paid out the amount of binding debts discharged out of his moneys. The learned Judges held that the alienees would, not be entitled to be paid those sums.
8. Venkama Naidu v. Sayed Vilijan Chisty : AIR1951Mad399 was a case in which a minor co-sharer, a Muhammadan, filed a suit for partition and recovery of possession of certain lands impugning the alienation made by his mother, who could under the personal law be only a de facto guardian. Out of the consideration for the sale certain debts binding on the minor were discharged, and the question arose when declaring the sale to be void and not binding on the quandom minor whether the Court had jurisdiction to award compensation to the disappointed alienee under Section 41 of the Specific Relief Act. The learned Judges answered the question in the affirmative. Delivering the judgment of the Bench, Viswanatha Sastri, J., observed at page 590 as follows:
Section 39 of the Specific Relief Act empowers the Court to adjudge a written instrument void and order its cancellation at the instance of a party who may be injured by the instrument, if left outstanding. That the person seeking cancellation need not himself be a party to the instrumen is shown by Illustrations (b) and (c) to Section 39.
The learned Judges held that although the alienation by the de facto guardian of a Muhammadan minor was void in law, there was jurisdiction in the Court to award compensation to the alienee to the extent of the consideration utilised for the benefit of the minor under Section 41 of the Specific Relief Act.
9. Krishnaswami Nayudu, J., in his order has pointed out that the learned Judges who decided Venkama Naidu v. Sayed Vilijan Chisty : AIR1951Mad399 did not consider the decision in Ammani Ammal v. Ramaswami Naidu (1918) 37 M.L.J. 113, and that there was conflict between the two-decisions. We are unable to share this view. In our opinion, there is no conflict between the two decisions aforesaid, though the observations of Viswanatha Sastri, J., extracted above taken out of their context may appear to be a little broadly stated.
10. In Nathu v. Balwantrao I.L.R. (1903) 27 Bom. 390, a Hindu mother sold as her own a property belonging to her minor adopted son. The purchase money was however applied by her in payment of debts for which the adopted son would be liable under the law and thereby he benefited by it. The minor had a guardian of property appointed by Court. The adopted son on attaining majority sued to set aside the alienation. On the sale being found to be invalid the alienee claimed compensation in equity. The learned Judges rejected the claim.
11. In order to appreciate the principle on which the aforesaid decisions are based, it is necessary to refer to the relevant provisions of the Specitc Relief Act. Section 41 of the said Act is contained in Chapter V which deals with the cancellation of the instruments. It runs:
On adjudging the cancellation of an instrument, the Court may require the party to whom such relief is granted to make any compensation to the other which justice may require.
It is clear from the provisions of the section that the jurisdiction to award compensation would arise when the Court adjudges-the cancellation of an instrument. The relief as to cancellation of an instrument is provided for under Section 39 of the Act. It becomes, therefore, relevant to consider as to what are the cases to which Section 39 would apply and whether it would comprehend the case of an instrument executed by a person claiming under a title different from and hostile to the person 'seeking cancellation. Section 39 states:
Any person against Whom a written instrument is void or voidable, Who has reasonable apprehension that such instrument, if left outstanding, may cause him serious injury, may sue to have it adjudged void or voidable ; and the Court may, in its. discretion, so adjudge it and order it to be delivered up and cancelled.
If the instrument has been registered under the Indian Registration Act the Court shall also send a copy of its decree to the officer in whose office the instrument has been so registered; and such officer shall note on the copy of the instrument contained in his books the fact of its cancellation.
It may be noticed that the above section applies not merely to the case of an instrument which is voidable but also one that is void. Section 35 provide for the case of rescission of voidable contracts. It is evident that Section 39 covers not only a case contemplated under Section 85, but also a wider field, that is, a case of a void document, which under the law need not be set aside.
12. The principle is that such documents though not necessary to be set aside may, if left outstanding, be a source of potential mischief. The jurisdiction under Section 39 is, therefore, a protective or a preventive one. It is not confined to a case of fraud, mistake, undue influence, etc., and as it has been stated it was to prevent a document to remain as a menace and danger to the party against whom under different circumstances it might have operated. A party against whom a claim under a document might be made is not bound to wait till the document is used against him. If that were so he might be in a disadvantageous position if the impugned document is sought to be used after the evidence attending its execution has disappeared. Section 39 embodies the principle by which he is allowed to anticipate the danger-and institute a suit to cancel the document and to deliver it up to him. The principle of the relief is the same as in quia timet actions.
13. Whitley Stockes in The Anglo Indian Codes, Vol. 1, dealing with Chapter V of the Specific Relief Act states at page 934 as follows:
Chapter V declares that any person against whom a written instrument is void or voidable, who has reasonable apprehension that if left outstanding it may cause him serious injury, may obtain an adjudication that it is void or voidable and an order that it be delivered up and cancelled. The relief extends to a forged instrument, and also to one originally valid but which has subsequently become forged. The chapter applies to cases not infrequent in India, where a party gets possession of a document, on which he might not indeed be able to found a claim in a Court of Justice, but which might give him such prima facie right against the other as would expose him to vexatious demands and litigation.
The learned Author points out that Section 39 of the Specific Relief Act was taken for the most part from the Draft New York Civil Code, Articles 1906 and 1098. That principle has been set out in Story on Equity Jurisprudence, English edition (1920) in Article 694, thus.
It is obvious that the jurisdiction, exercised in cases of this sort, is founded upon the administration of a protective or preventive justice. If, therefore, the instrument was void for matter apparent upon the face of it, there was no call to exercise the jurisdiction, with the possible exception of instruments forming a cloud upon the title to land. The party is relieved upon the principle, as it is technically called quia timet; that is, for fear that such agreement, securities, deeds, or other instruments may be vexatiously or injuriously used against him, when the evidence to impeach them may be lost; or that they may now throw a cloud or suspicion over his title or interest.
14. The provisions of Section 39 make it clear that three conditions are requisite for the exercise of the jurisdiction to cancel an instrument : (1) the instrument is void or voidable against the plaintiff; (2) plaintiff may reasonably apprehend serious injury by the instrument being left outstanding ; (3) in the circumstances of the case the Court considers it proper to grant this relief of preventive justice. On the third aspect of the question the English and American authorities hold that where the document is void on its face the Court would not exercise its jurisdiction while it would |it it were not so apparent. In India it is a matter entirely for the discretion of the Court. '
15. The question that has to be considered depends on the 1st and 2nd conditions set out above. As the principle is one of potential mischief, by the document remaining outstanding, it stands to reason the executant of the document should be either the plaintiff or a person who can in certain circumstances bind him. It is only then it could be said that the instrument is voidable by or void against him. The second aspect of the matter emphasises that principle. For there can be no apprehension if a mere third party asserting a hostile title creates a document. Thus relief under Section 39 would be granted only in respect of an instrument likely to affect the title of the plaintiff and not of an instrument executed by a stranger to that title.
16. Let us take as example a trespasser purporting to convey the property in his own right and not in the right of the owner, In such a case a mere cancellation of the document would not remove the cloud occasioned by the assertion of a hostile title, as such a document even if cancelled would not remove the assertion of the hostile title. In that case it would be the title that has got to be judicially adjudicated and declared, and a mere cancellation of ah instrument would not achieve the object. Section 42 of the Specific Relief Act would apply to such a case. The remedy under Section 39 is to remove a cloud upon the title, by removing a potential danger but it does not envisage an adjudication between competing titles. That can relate only to instruments executed or purported to be executed by a party or by any person whoe can bind him in certain circumstances. It is only in such cases that it can be said there is a cloud on his title and an apprehension that if the instrument is left outstanding it may be a source of danger. Such cases may arise in the following circumstances. A party executing the document, or a principal in respect of a document executed by his agent, or a minor in respect of a document executed by his guardian de jure or de facto, a reversioner in respect of a document executed by the holder of the anterior limited estate, a real owner in respect of a document executed by the benamidar, etc. This right has also been recognised in respect of forged instruments which could be cancelled by a party on whose behalf it is purported to be executed. In all these cases there is no question of a document by a stranger to the title. The title is the same. But in the case of a person asserting hostile title, the source or claim of title is different. It cannot be said to be void against the plaintiff as the term void or voidable implies that but for the vitiating factor it would be binding on him, that is, he was a party to the contract.
17. There is one other reason for this conclusion. Section 39 empowers the Court after adjudicating the instrument to be void to order the instrument to be delivered up and cancelled. If the sale deed is or purported to have been executed by a party, the instrument on cancellation could be directed to be delivered over to. the plaintiff. If on the other hand such an instrument is executed by a trespasser or a person claiming adversely to the plaintiff it not possible to conceive the instrument being delivered over not to the executant but his rival, the plaintiff.
18. In Ammani Ammal v. Ramaswami Naidu (1918) 37 M.L.J. 113, Napier, J., after referring to the provisions of Sections 39 and 41 of the Specific Relief Act observed at page 121:
To my mind it is clear that there is no necessity to have this document cancelled. The Illustrations to Section 39 indicate that it is only where a party cannot get his legal remedy without first having the document set aside that he comes within the section. This is a suit by the true owner to recover possession of the party. The title adverse to him is not one procured from him or from any one under whom he claims or from any one who purported to convey an interest of his. It seems to me therefore that there can be no necessity for him to apply to have the document cancelled and further that the Court would have no jurisdiction to do so.
19. We accept this statement of the law. We already referred to a passage in the judgment of Viswanatha Sastri, J., in Venkama Naidu v. Sayed Vilijan Chisty : AIR1951Mad399 . There the learned Judge referred to the fact that Illustrations (b) and (c) to Section 39 refer to cases where the person seeking cancellation need not himself be a party to the instrument. But it may be noticed that in the cases referred to in those illustrations the title is the same. Illustration (b) refers to a case of forged instrument. That would be a case where the instrument is purported to be executed on behalf of the plaintiff, and if that instrument were kept outstanding it may be a case of danger to his title. Illustration (c) is again a case where the vendor after parting with the property grants a lease. In such a case the purchaser would be entitled to have the lease cancelled. Those cases are only illustrations of the proposition that the Court has the power to cancel the sale deed executed or purported to be executed by the plaintiff or persons who could otherwise bind him. The decision in Venkama Naidu v. Sayed Vilijan Chisty : AIR1951Mad399 , is a case where the sale was executed by a de facto guardian of a Muhammadan minor. Such a conveyance would be void in law. But nevertheless the de facto guardian purported to act on his behalf, and the deed if left outstanding could cast a cloud upon the title of the plaintiff. The case would obviously come under Section 39. The learned Judges in that case have exhaustively referred to the various cases on the subject in support of their conclusion. It is unnecessary to deal with them here beyond stating that all those cases were cases of documents executed either by the minor alleging himself to be a major or by his gardian, de jure or de facto, but always purporting to act on his behalf. That case would be entirely different from a sase of sale by a person asserting a title hostile to that of the plaintiff, as in the cases referred to above namely, Nathu v. Balwanturao I.L.R. (1903) 27 Bom. 390 and Ammani Ammal v. Ramaswami Naidu (1918) 37 M.L.J 113. It is true that Section 39 may apply to persons other than the actual party to the instrument, for instance to the case of an agent selling without authority, or a case where the person commits forgery purporting to sell on behalf of the plaintiff. It is even possible to conceive that a creditor can in certain circumstances impugn the document created by his debtor. In all those cases as pointed out already the title which is sought to be protected is the title of the plaintiff, and not an adjudication as against any rival claimant. Venkama Naidu v. Sayed Vilijan Chisty : AIR1951Mad399 , related to a case where a document was executed purporting to bind the plaintiff. Ammani Ammal v. Ramaswami Naidu (1918) 37 M.L.J 113, is a case of the latter category, that is, where a document is executed by a person claiming hostile title. That would not be comprehended by Section 39. There is, therefore, no conflict between the decision in Ammani Ammal v. Ramaswami Naidu (1918) 37 M.L.J 113, and that in Venkama Naidu v. Sayed Vilijan Chisty.
20. In our opinion, Section 39 will not apply to a case like the present where the sale was executed by a person claiming title adverse to that of Vinayagam Pillai, and therefore, the Court would have no jurisdiction under Section 41 to direct payment of compensation by the plaintiff to the appellant before obtaining relief as to possession. To hold otherwise would mean that a mere volunteer who paid the debt of the plaintiff would be able to recover the same.
21. As the question whether the appellant will be entitled to be paid back his moneys on any principle like salvage lien, unjust enrichment or under the provisions of Sections 69 and 70 of the Contract Act has still to be considered before the appeal could be finally disposed of, the appeal will be posted in the usual course for disposal.
22. Then the Second Appeal came on for final disposel before Ramaswami, J., who delivered the following
23. This second appeal is preferred against the decree and judgment of the learned Subordinate Judge of Ramanathapuram at Madurai in A.S. No. 78 of 1952, confirming the decree and judgment of the learned District Munsif in O.S. No. 178 of 1950.
24. The suit properties originally belonged to one Vinayagam Pillai. The plaintiffs are the sons of Vinayagam Pillai by his first wife. Vinayagam Pillai married a second wife Vellayammal in whose favour he executed a sale-deed of these properties on 5th September, 1930. Vellayammal died in 1935 leaving no issue. Vinayagam Pillai died in 1940 leaving the plantiffs, his undivided sons, and his first wife who is the 5th defendant. On 7th May, 1940, Vellayanimal's mother Krishnammal, claiming to be her stridhanam heir, sold these properties to one Sankarapandia Thevar and eventually the 2nd defendant purchased them under Exhibit B-4, dated 3rd March, 1945, from the 1st defendant, to whom Sankarapandia Thevar sold the properties in 1944. Regarding the sale in favour of the second defendant, a suit was filed in pauper form by Krishnaswami Pillai and his minor son, Sundaram Pillai, to declare that the plaint A Schedule properties belong to the plaintiffs and for recovery of possession of the same with future mesne profits.
25. The suit was based on the question as to who would be the lawful heir of Vellayammal, whether the mother who purported to deal with the properties, or her husband and his heirs, namely, the plaintiffs and the 5th defendant, which again depended on the form of Vellayammal's marriage with Vinayagam Pillai. Both the Courts held that it was in the Brahma form with the result that the mother could not be a stridhana heir, but only the plaintiffs. As Krishnammal had no title to the properties, the sales in favour of the 2nd defendant and others were held to be void and wholly inoperative. This, however, is not the controversy which is the subject-matter before us now.
26. The present controversy before us is as to whether nothwithstanding the void nature of the sale the 2nd defendant is not entitled to be paid the amount which was utilised for the discharge of the decree debt of Vinayagam in O.S. No. 193 of 1936 on the file of the District Munsif's Court, Sattur. In view of the plaintiffs having derived benefit by the sale of item 9 in favour of the 2nd defendant, the 2nd defendant claims to be entitled on equitable grounds to be paid the sum of Rs. 900 which was the consideration which he parted with.
27. Both the Courts below did not order refund in setting aside the sale. Therefore, there was a second appeal in this Court before Krishnaswami Nayudu, J. In that second appeal the point concentrated upon was Section 41 of the Specific Relief Act. Krishnaswami Nayudu, J., held that there was a conflict of decisions as to the application of Section 41 of the Specific Relief Act. Therefore, the following question was formulated for decision by a Full Bench:
Where the sale was for the purpose of discharging the binding debt on the minor plaintiffs and the plaintiffs having had the benefit of the payment by the property becoming free from the said attachment, are they liable to recoup the purchaser amount in respect of which they had the benefit.
28. The learned Chief Justice directed the matter to be posted before a Full Bench, and it has been heard by a Full Bench consisting of my' Lord, the Chief Justice, Ramachandra Iyer, J., and Ganapatia Pillai, J.
29. The learned Judges were of opinion that Section 39 would not apply to a case like the present one where the sale was executed by a person claiming title adverse to that of Vinayagam Pillai, and therefore, the Court would have no jurisdiction under Section 41 to direct payment of compensation by the plaintiff to the appellant before obtaining relief as to possession. To hold otherwise would mean that a mere volunteer who paid the debt of the plaintiff would be able to recover the same.
30. The learned Judges proceeded further to point out that the question whether the appellant would be entitled to be paid back his moneys on any principle like salvage, unjust enrichment or under the provisions of Section 69 and 70 of the Contract Act had still to be considered before the appeal could be finally disposed of, and the learned Chief Justice has directed this appeal to be posted before me.
31. I have been taken through the records by the learned Advocates on both sides before me. I have not the slightest doubt in coming to the conclusion that this is a case of unjust enrichment, and that the plaintiffs are bound to reimburse the second defendant in a sum of Rs. 900. In this case all the requirements for granting relief under the doctrine of unjust enrichment stand fully made out. The consideration which the 2nd defendant paid went to avert the sale of the land for the decree debt of Vinayagam Pillai. It stands to reason that when the plaintiffs wanted to take possession of the land, they must pay the debt which the*land was bound to satisfy by reason of it being the decree debt of Vinayagam Pillai. It is also seen that the plaintiffs in the execution proceedings have taken time for payment of the amount. Therefore, the plaintiffs cannot be allowed to blow hot and cold and play fast and loose and assume different postures in the course of the same proceedings or even in subsequent proceedings which directly arose from the previous suit.
32. This doctrine of unjust enrichment has been the subject-matter of three decisions of this Court, namely, Goolabchand v. Miller : AIR1938Mad966 , Mahalingam Chettiar v. Ramanathan Chettiar Appeal No. 665 of 1948, and Govindarajulu Naidu v. S.S. Naidu : (1958)2MLJ148 , wherein I have dealt with the entire case-law and the settled principles in England, America and India and reproduced the following:
The doctrine of restitution may now be summed up in the language of the American Restatement of the Law of ' Restitution 'in Chapter 1, Section 1, at page 12 and following:
A person who has unjustly enriched at the expense of another is required to make restitution to the other. A person is enriched if he has received a benefit. A person confers a benefit upon another if he gives to the other possession of or some other interest in money, land, chattels, or choses in action performs services beneficial to or at the request of the other, satisfies a debt or a duty of the other, or in any way adds to the other's security or advantage, saves the other from expenses or loss. The Word ' benefits ', therefore, denotes any form of advantage....
Even where a person has received a benefit from another he is liable to pay therefor only if the circumstances of its receipts or retention are such that, as between the two persons, it is unjust for him to retain it. The mere fact that a person benefits another is not of itself sufficient to require the other to make restitution therefor....
Ordinarily the benefit to the one and the loss to the other are co-extensive, and the result of the remedies given under the rules stated in the restatement of this subject is to compel the one to surrender the benefit which he has received and thereby to make restitution to the other for the loss which he has suffered....
Where the benefit and logs do not coincide...the amount of recovery is usually limited to the amount by which he has been benefited. ...
A person Who officiously confers a benefit upon another is not entitled to restitution therefor.' This is certainly not a case of a person who conferred a benefit upon another officiously and is, therefore, not entitled to restitution therefor.
33. In addition to these three decisions, the learned Advocate, Mr. Vaideeswaran, brings to my notice the decision of the Privy Council in Govindram Govardhandas Seksaria v. State of Gondal (1950) 2 M.L.J. 1 : L.R. 77 LA. 156, wherein it is laid down:
The words ' bound by law to pay ' in Section 69 of the Contract Act do not exclude those obligations of law which arise inter partes whether by contract or tort and is not confined only to those public duties which are imposed by statute or general law. They extend to any obligation which is an effective bond in law.
It is not correct to say that a person could not be ' interested in the payment of money ' within the meaning of Section 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. S had become the purchaser of certain mills and was handed over possession on 9th September, 1937. On 29th November, 1937, S entered into an agreement by way of sub-sale with a company under which he agreed to sell the mills to the company at the same price as that at which he bought them. Before that date, it was found that large amounts were outstanding in respect of municipal taxes on the mills and in spite of correspondence between the original owners and S and the company which purchased from him, the latter Company was forced to pay that sum to avoid legal proceedings for the enforcement of the statutory charge. In a suit by the company and its vendor against the original owners for the recovery of the sum so paid:Held, the payment made can in no sense be said to be a voluntary one. The company had contracted to buy the mills and they were imminently threatened with a forced sale which would defeat its purchase. No one was disposed to pay the taxes due and so the company paid. To describe it in such circumstances as having made a voluntary payment would involve some misuse of language. The company was also interested in the payment of taxes though the actual sale deed in their favour was executed subsequently.
34. The net result of this analysis is that the decrees and judgments of the lower Courts have to be modified, and the plaintiffs, before recovering possession of the land, will have to reimburse the 2nd defendant in a sum of Rs. 900. I am providing for interest, because the 2nd defendant had been in enjoyment of the land, and mesne profits and interest can be equated. The decrees and judgments of the lower Courts will stand modified accordingly.
35. This second appeal is allowed with costs.