Ghose and Gordon, JJ.
1. The sole question that arises in this appeal is whether a certain payment made by the plaintiff in satisfaction of a decree obtained by the landlord against the defendants was a voluntary payment.
2. The facts out of which this question arises are shortly these : A certain property, among others, belonged to one Nanda Kishore Mitter. He died leaving his widow Sudhamoyi Dasi and a daughter, the present plaintiff. Sudhamoyi Dasi, upon the death of Nanda Kishore, succeeded to the estate, and while she was in possession thereof, she sold the said property to the defendants. In Baisakh 1297 (B.S.) Sudhamoyi Dasi died, and the plaintiff inherited the estate as heiress of her father. In the year 1890, that is to say, in the same year that the plaintiff's mother died, a decree was obtained by the landlord against the defendants for the rent of the said property (it being a tenure held under him) and another property. The rent that was claimed, and the decree obtained by the landlord, were on account of a period antecedent to the time when the estate, upon the death of Sudhamoyi Dasi, devolved on the plaintiff. The landlord took out execution of this decree and attached the property in question and lotted it up for sale for satisfaction of his demand, which demand, as already mentioned, related, not only to the property in question, but also to the other property that was held by the defendants under the landlord. The plaintiff, apparently, in order to save this property from sale, paid up the decree, and she subsequently brought the present suit to recover from the defendants the amount so paid by her. The plaintiff claimed for other reliefs, one of them being the recovery of the property claimed by the defendant under his purchase from the plaintiff's mother; but the only point with which we are here concerned in this appeal relates to the payment which the plaintiff made in satisfaction of the decree obtained by the landlord.
3. The defendants, so far as the claim to the property itself was concerned, contended that they had acquired under their purchase from the plaintiff's mother an absolute interest. This contention, however, has been negatived by the Courts below, and we take it that, upon Sudhamoyi's death, the right to the property devolved on the plaintiff under the law of inheritance, and that the defendants, at the time when the payment was made by the plaintiff, . had really no interest in the said property. It would, however, appear that at the time when the decree was obtained by the landlord, and at the time when the plaintiff made the payment, the defendants claimed the property as theirs; and the question that we have to decide in this appeal is whether, under these circumstances, the said payment was a voluntary one or not.
4. There can be no doubt that if the plaintiff had not paid up the decree of the landlord, this property would have been sold up. 'What might have been the estate which the purchaser would have acquired under the sale is no doubt another question. It is quite possible that he would have acquired only the right, title and interest, whatever that might have been, of the defendants. But still the property was liable to be sold in execution of the decree obtained by the landlord, and there was at that time a question between the parties as to whether the property really belonged to the plaintiff or to the defendants. Under these circumstances the plaintiff paid up the decree and saved the property from sale. She was, as it seems to us, interested in the payment of the money, and as such she paid it in order to save the property from being sold.
5. In this view of the matter the case falls under Section 69 of the Contract Act. But it seems to us that the case might also fall under Section 70 of the said Act which runs as follows: '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.' Now the decree, as we have already mentioned, was a decree that was obtained against the defendants, and, so far as the payment in question was concerned, it relieved the defendants from their liability to the landlord, and therefore it is clear that when the plaintiff made the payment in question she did it for the defendants, and apparently not gratuitously. There can also be no question that the defendants enjoyed the benefit of this payment because, as we have already said, it relieved them from their liability to the zamindar.
6. The principle which underlies Section 70 of the Contract Act seems to have been considered in two or three important cases, and we may as well here refer to them. The first is the case of Smith v. Dinonath Mookerjee I.L.R. 12 Cal. 213, in which a question somewhat similar to that which arises in this case was considered, and the learned Judges there held that the payment was not a voluntary one, but was a payment which fell either under Section 69 or under Section 70 of the Contract Act. In the case of Jugdeo Narain Singh v. Raja Singh I.L.R. 15 Cal. 656 where in execution of a decree the plaintiff had purchased certain property, and the defendant, in execution of another decree against the former owner of the property, proceeded to execute his decree against the same property, and the plaintiff, in order to prevent the sale, paid the amount of the defendant's decree into Court, and subsequently brought a suit against the defendant to recover the amount so paid to prevent the sale, it was held that the payment was not voluntary, and that the plaintiff was entitled to recover the amount paid. The learned Judges there considered, among a variety of cases, the case of Duli Chand v. Ramhishen Singh I.L.R. 7 Cal. 648 : L.R. 8 I.A. 93 decided by the Privy Council. The facts of the case before the Privy Council were no doubt different from those with which we are concerned in the present case, but we think that the principle which underlies that case is equally applicable to the present case.
7. We think that upon the authorities to which we have referred, and upon the reason of the thing, the payment made by the plaintiff could not be regarded as a voluntary payment, and therefore she is entitled to recover the amount paid whether the case falls under Section 69 or under Section 70 of the Contract Act.
8. The result is that this appeal will be allowed, and the plaintiff will recover judgment for the amount claimed, with costs in all the Courts.