1. The original suit was by the plaintiff for a sum of Rs. 2,115 and odd which he claimed to have been paid by him on behalf of the defendant. The facts of the case are somewhat complicated but it is not necessary to set out more than the following, On Parvathi Amma and C. Lakshmana Rao executed two mortgages, Exs. A and B, in favour of one Sankar Rao. The three items in the present plaint were part of the mortgaged property. Item No. 1 is called Kodipadi arwar property which belonged to Lakshmana Rao, who sold it to Siva Rao, who sold it to the plaintiff. The other items Nos. 2 and 3 were brought to sale in execution of a money-decree against Lakshmana Rao in favour of the defendant and were purchased by him. The mortgagee sued on his mortgage, got a decree and brought to sale the Kodipadi arwar property and item No. 2. The plaintiff who had just bought the Kodipadi arwar property from Siva Rao in order to have the sale cancelled deposited along with Siva Rao the sale amount and had the sale cancelled. He now claims contribution from the defendant towards this amount which he had spent. Both the lower Courts had dismissed the suit and the plaintiff appeals.
2. The plaintiff in this Court attempted to argue his case first as one for contribution under Section 82, Transfer of Property Act, but not only was that contention not put forward in the lower Courts which both emphasised that the plaintiff rested his case before them solely on Section 70, Contract Act, but the matters necessary for a claim under Section 82, Transfer of Property Act, have not been put in issue. It appears from the Subordinate Judge's judgment that the properties brought to sale under the mortgage are not the whole of the properties mortgaged. For a suit under Section 82 the plaintiff has to bring on all the properties mortgaged, so that the contribution may be determined rateably. He cannot claim to fix the whole liability for contribution on only a portion of the mortgaged property. He cannot, therefore, be allowed to raise this contention here.
3. It only remains to decide whether the lower Courts have erred in law in holding that the plaintiff has not proved his case under Section 70, Contract Act. Two points arise: First, whether the payment was for the defendant, and secondly, whether it was lawfully made. Both the lower Courts have held that the payment was not for the defendant. This point may be a mixed question of fact and law, but I see no reason to differ from the lower Courts. Primarily it is quite clear that the plaintiff's payment was to save his own property; and secondly, there is no evidence that he paid for the defendant except the insufficient fact that defendant has benefited by the payment. The Madras High Court's view as to what the phrase 'for another person' means is more strict than the view taken in Calcutta set out in Suchand Ghosal v. Balaram Mardana 6 Ind. Cas. 810 : 38 C. 1 : 12 C.L.J. 566 : 14 C.W.N. 945 and Kangal Chandra v. Gopi Nath Pal 68 Ind. Cas. 104 : 24 C.W.N. 1068. The narrowest interpretation, perhaps, is given by Oldfield, J., in Viswanadha Vijia Kumar a Rangarao v. R.G. Orr 45 Ind. Cas. 786, who says it means that but for the existence of that other's interest the payment would not have been made. In Avudayappa Pillai v. Thillai Thanavaraya Pillai : AIR1928Mad320 the phrase is taken to mean 'taking his place as the doer.' The interpretation put on the phrase in these cases is narrower than in Krishnachandra Deo Garu v. Srinivasa Charyalu 20 Ind. Cas. 445 : 38 M. 235 : 25 M.L.J. 433 : (1914) M.W.N. 99 : 14 M.L.T. 20 where it is generally stated that if a party pays in his own interest, he will not ordinarily be held to have made the payment for another, but whether he did so or not is a question of fact, in each case. Certainly the mere fact that another can benefit is not sufficient to establish that the act was done for his benefit. It is sufficient to say here that there is no fact in the evidence going to show that the sole or dominant motive for the plaintiff's payment was to save defendant's property and therefore the payment cannot be fairly said to have been made for the defendant.
4. As to the second point, the meaning of 'lawfully' I am not able to say that the lower Courts have committed an error of law. I do not regard the word 'lawfully' as synonymous with 'bona fide' as is suggested in the judgment of Anantakrishna Ayyar, J., in Avudayappa Pillai v. Thillai Thanavaraya Pillai : AIR1928Mad320 . I do not, for example, consider that what has been done contrary to the spirit of the law or to public policy may nevertheless be done lawfully if it was done 'bona fide,' but I need not go here into that matter at any further length. Plaintiff's application, taken by itself, is certainly not in accordance with the law in this Presidency. It is the law in this Presidency that a purchaser of the property subsequent to the Court sale cannot apply under Rule 89, Order XXI, to have the sale cancelled; so that, if the plaintiff alone had applied, his application could not in law have been sustained. I do not see that it makes his application any the more in accordance with law that his vendor, defendant No. 2 in the mortgage suit, was a co-applicant with the plaintiff. It is suggested that defendant No. 2 may be taken as having acted as the agent of the plaintiff in the matter but, obviously, an act which is contrary to law for the principal cannot be within the scope of the agency. No case has been cited to me by the appellant in which a payment by a party who acquired his interest subsequent to the sale has been held to be a 'lawful payment,' and I find it difficult to see how the word 'lawfully' can apply to an application which the Court could only accept ignoring the law. But apart from this, appellant fails on the other point noted above. I must, therefore, hold that the lower Appellate Court has committed no error of law. I dismiss this appeal with costs.