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Rasappa Pillai Vs. Mitta Zemindar Doraiswami Reddiar Alias Pethu Reddiar and ors. - Court Judgment

LegalCrystal Citation
SubjectContract;Property
CourtChennai
Decided On
Reported inAIR1925Mad1041; 90Ind.Cas.545; (1925)49MLJ88
AppellantRasappa Pillai
RespondentMitta Zemindar Doraiswami Reddiar Alias Pethu Reddiar and ors.
Cases ReferredMeyyappa Chettiar v. Chidambaram Chettiar A.I.R.
Excerpt:
- .....from paying up rangaswami'a debt.' this amounts to a finding that there was novation of the contract of sale. such a case is not set up either by the 1st defendant or by the 3rd defendant, and no issue has been framed on the point and it has not been considered in the trial court. it further appears that this finding is directly opposed to an admission in the 1st defendant's evidence, for there he deposes : ' there is no particular reason why i should have paid off those advances and not rangaswami's except that the others were. more pressing and were mortgage decrees.' he does not rely on the novation of contract found by the district judge, but simply says that he made these payments because some creditors were pressing harder than others. this finding, therefore, cannot be.....
Judgment:

Phillips, J.

1. I think it is necessary in this case to set out the facts; for although the District Judge says in his judgment that the facts of this case are not in dispute, he has come to one conclusion of fact which has been questioned here. In 1905, the 3rd defendant sold certain properties to the plaintiff for Rs. 2,800 and in 1909 he sold certain other properties to the 1st defendant for Rs. 16,150. The Bale to plaintiff was said to be free from encumbrances, whereas the sale to the 1st defendant recited various encumbrances on the property, which the 1st defendant was to discharge as a part of the sale price. In particular, he had to pay off a decree debt of Rs. 2,000 obtained by one Rangaswami. Admittedly the 1st defendant did not pay off this amount and subsequently the plaintiff's properties which, together with those sold to the 1st defendant had been attached by Rangaswami before judgment, were sold. In order to prevent the sale being confirmed, the plaintiff paid the decree amount and now sues to recover that sum from defendants 1 to 3 and their families, the 2nd defendant being an alienee from the 1st defendants The District Judge has found that neither Section 69 nor Section 70 of the Indian Contract Act supports the plaintiff, for he finds ' the 1st defendant was under no legal obligation to clear the plaintiff's property from the attachment; nor can I find that he was under any contractual obligation which could have been enforced by law. Nor can I find he was under any legal obligation to contribute to reimburse the plaintiff.' This finding appears to be based to a considerable extent on the finding of fact to which I have alluded above and which is now in dispute. Under his sale-deed, the 1st defendant undertook to pay Rangaswami's decree debt. But he did not do so although it appears that he did pay full consideration for the sale-deed in that he paid a debt not specified in that deed and paid certain amounts to other creditors in excess of the stipulated sums. In respect of this the learned Judge states : 'It also appears that the 1st defendant had his vendor's consent to the course he adopted,' and then adds : 'The 1st defendant and his vendor might have entered into a new contract the next day after Ex. I, and in fact did enter into a new contract when his vendor agreed to the 1st defendant being excused from paying up Rangaswami'a debt.' This amounts to a finding that there was novation of the contract of sale. Such a case is not set up either by the 1st defendant or by the 3rd defendant, and no issue has been framed on the point and it has not been considered in the trial Court. It further appears that this finding is directly opposed to an admission in the 1st defendant's evidence, for there he deposes : ' There is no particular reason why I should have paid off those advances and not Rangaswami's except that the others were. more pressing and were mortgage decrees.' He does not rely on the novation of contract found by the District Judge, but simply says that he made these payments because some creditors were pressing harder than others. This finding, therefore, cannot be accepted and we must take it that the contract between the 3rd defendant and the 1st defendant is in accordance with the terms of Ex. I. That being so it remains to consider whether the plaintiff comes within the provisions of Section 69 of the Contract Act, or in this appeal it is not suggested that Section 70 is applicable. Section 69 runs as follows:

A person who is interested in the payment of money which another is bound by law to pay, and who therefore pays it, is entitled to be reimbursed by the other.

2. It cannot be disputed that plaintiff was interested in the payment of this money, inasmuch as it was the only means of saving the property which he had purchased from the 3rd defendant.

3. Then, the question arises, whether the 1st defendant was bound by law to pay that money, namely Rangaswami's decree debt. Under Ex. I he had contracted with the 3rd defendant to pay that amount and so far as the 3rd defendant is concerned, he could have compelled the payment of the sum by the 1st defendant. These facts are very much the same as in the case reported in Muthurakhu Maniagaran v. Bakkappa : AIR1914Mad26 the only difference being that the money in that case was due under a mortgage. Both the learned Judges in that ease based their decision on Section 69 of the Contract Act and one of them added that Section 70 was also applicable. This authority seems to me quite clear, but in a subsequent case reported in Kunjithapatham Pillai v. Pulamalai (1916) 32 M.L.J. 347 some little doubt seems to have been expressed as to the correctness of Muthurakku Maniagaran v. Bakkappa : AIR1914Mad26 although there was no express dissent, the observation relied on by the respondent being one made obiter. In considering the meaning of the words 'bound by law to pay' the learned Judges say : 'What is intended is a contractual obligation and not a legal one.' If we accept these words in their literal sense, it would imply that a person who is bound by statute to pay certain money is not bound by law to pay; and I do not think that can possibly have been the meaning of the Judges. What I think is their meaning is that the contractual obligation must be one between the person buying and the person who is bound by law to pay. But if that is so, the person buying would not need to have recourse to Section 69, for he could base his action on his contract. If that is the meaning of the words, I must respectfully dissent, for I prefer to accept the definition of the words 'bound by law to pay' given by Beaman, J., in Somashastri v. Swamirao Kashinath (1917) 42 Bom. 93, where he says : 'Bound by law' does not mean 'bound by law to the plaintiff, but that the defendant at the suit of any person might be compelled to pay.' I entirely agree that this definition is the correct one and the same view is taken by a Bench of this Court in Jagapati Baju v. Sadrusannama Arad (1915) 39 Mad. 795 where we find the following observation at page. 801: 'The person who is interested in the payment mentioned in Section 69 must be a person who as between himself and the defendant was not bound to pay though the defendant may be under an obligation to pay to a third party.' On the facts of that case it was held that Section 69 was not applicable, but the same reasoning is adopted that we find in Muthurakku Maniagaran v. Bakkappa : AIR1914Mad26 . The same view is taken in Mothooranath Chattopadhya v. Kristokumar Ghose (1878) 4 Cal. 369 and in Chandradaya v. Bhagaban (1915) 23 C.L.J. 125. In this state of the authorities and also on the facts of this case I am clearly of the opinion that Section 69 is applicable and that the plaintiff is entitled to recover the money he has paid.

4. There is one further argument put forward for the respondents relating to the question of the liability of the lands in 1st defendant's possession to be proceeded against for Rangaswami's decree. It is argued that the attachment of all the properties having been made before judgment and only plaintiff's property having been brought to sale, the other properties were no longer liable for the decree, apparently on the ground that the attachment ceased on the date of the judgment. I may note here that if that be so, the attachment of plaintiff's lands would also have ceased on that date, because the sale to him was after the date of the decree. But, I think, the 1st defendant is bound by the recital in his document which states that at the time when the lands were sold to him they were under attachment. Although there is no evidence let in to show that any subsequent steps were taken after the decree, the recital is binding on the defendant. I may also add that in the opinion of the Judges forming the Full Bench in Meyyappa Chettiar v. Chidambaram Chettiar A.I.R. 1924 Mad. 494 attachment thefore judgment continues in force until it is put an end to by the Court. It is, (therefore, obvious in the circumsiances that this attachment was continuing at the time of the sale to the plaintiff and the sale to the 1st defendant. This argument therefore, does not help the 1st defendant in any way. The appeal must, therefore, be allowed, but the plaintiff is only entitled to a certain portion of his claim. The District Munsif disallowed a certain portion of the claim, and although I think he was wrong in doing so, plaintiff filed his Memorandum of Objections too late, and it was dismissed. Consequently so far as that is concerned the order has become final. The lower appellate Court's decree is, therefore, set aside and the decree of the District Munsif restored with costs both here and in the lower appellate Court.

5. I may also note that the 3rd defendant was not a party to the appeal in the District Court, and conssquently the suit was dismissed as against him also, although in the judgment there is no disoussion of his liability.


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