1. This is an appeal by the plaintiff against a judgment of the learned Additional Subordinate Judge of Rajsbahi, dated the 22nd September 1916. The plaintiff brought the suit for a declaration that his right in certain property had not been affected by the charge said to have existed in favour of the defendant No. 1 under Section 171 of the Bengal Tenancy Act. The facts are somewhat complicated as they appear from the judgment of the Court below, but from the very clear and lucid statement made by Mr. Roy Chowdhury who opened the appeal, the following may be taken as the facts necessary to be considered far the purpose of this case. There was a putni in which one Nafar Mandal had a 9 annas share. The other 7 annas was vested in two persons named Ram Coomar and Mahabharat. Nafar Mandal died leaving three sons, Srinath, Lakshi Kant, and Baruni. Srinath died without issue leaving a widow Nayantara. Lakshi Kant also died without issue leaving a widow Bisseswari. Baruni died leaving six sons, the plaintiff being the eldest of those sons. As to the 7-annas share in the putni, Ram Coomar died leaving Akrurmani his widow and the widow of a pre-deceased adopted son, namely, Ramsasi. Mahabharat died also without issue leaving Bama Sundari his widow. The landlord brought a suit to recover the rent in arrears due on the putni. In that suit, he made Nayantara the first defendant, Akrurmani, the second defendant and Chandra Kamini who was the widow of a nephew of Mahabharat the third defendant. After the decree, the property was put up for sale in execution. The defendant No. 1 in the present case holds a dar-putni under the 7-annas co-sharers and he deposited the whole amount of the decree and prevented the property from being brought to sale. After that, the defendant No. 1 made an application under the provisions of Section 171 of the Bengal Tenancy Act to be put in possession as a mortgagee and the Court made that order. Then the plaintiff brought the present suit on the footing that the decree in the suit brought by the landlord to which he was no party was not binding on him and that, it not having been a decree for arrears of rent within the meaning of the Bengal Tenancy Act, no order could be made under Section 171 of the Bengal Tenancy Act as against him. The learned Judge of the Court below in the course of his judgment has found the title of the plaintiff and has held that the decree was not a decree for rent within the meaning of the Bengal Tenancy Act, as the landlord did, in fact, know of the interest of the plaintiff in the tenure and, therefore, he has made a declaration in the suit in favour of the plaintiff. He has also granted to the plaintiff an injunction as prayed for by him; but in his opinion, the, plaintiff being liable under the law to pay to the defendant No. 1 his portion of the rent which is represented by the 9-annas share in the putni, he has attached a condition to the issue of the injunction, namely, that the injunction would issue only on the plaintiff paying to the first defendant his portion of the rent that has been paid by the defendant No. 1. That is the only point involved in the present appeal, all the other matters being found and declared in favour of the plaintiff.
2. The first point that arises in this ease is whether the payment made by the defendant No. 1 falls within the terms of Sections 69 and 70 of the Indian Contract Act, or whether it was purely a voluntary payment made by the first defendant. The cases that have been cited to us on this point seem to me not to offer much assistance. The case of Raja Baikunt Dey Bahadur v. Udoy Chand Maiti 2 C. L. J. 311. is a perfectly simple case. There the sale was being made of the interest of the zemindar under the Public Demands Recovery Act and the payment by the putnidar was not deemed to be a payment made by a person having an interest in the payment, as the putni by reason of the sale of the interest of the putnidar could not be affected in any way So is the case of Panchkeri Ghosh v. Hari Das Jati 34, Ind. Cas. 34 1 : 25 C. L. J. 325 : 21 C. W. N. 394. because the finding made there was that the mortgage was a fictitious one and the person claiming under a fictitious deed could neither be called interested in the payment of the money within the meaning of Section 69, nor was the payment lawful within the meaning of Section 70 of the Indian Contract Act. But when one comes to the case of a dar-putnidar of a share of a putni making a payment of the whole rent due on the putni, on the ground that the dar-putnidar's interest in the property is liable to be or may be destroyed if the property is brought to sale, it seems to me that that is a totally different case and I think that such a payment falls within the terms of both Sections 69 and 70 of the Indian Contract Act. The present dar-putnidar was clearly interested in the payment of the money because, if the money was not paid, the putni was liable to be destroyed and with it would go the darputni. Obviously the putnidar was bound by law to pay the rent due to the zemindar. That seems to me clearly to bring the case within the terms of Section 69 of the Indian Contract Act. I also think that the case comes within the terms of Sections 70 of that Act, because it is quite clear, in a case of this nature, that the darputnidar did not intend to act gratuitously when he paid the, rent of the putni and the payment was a lawful one without doubt, because it was made by depositing the money in Court and the present plaintiff has, in fact, enjoyed the benefit of that, because it is not his case that anybody else except the first defendant paid the rent that he owed to the landlord. Therefore, it seems to me clear that the payment comes within the terms of both Sections 69 and 70 of the Indian Contract Act.
3. Then it is said that the first defendant ought to have been left to realise the money from the plaintiff by a separate suit. The view of the learned Judge was that he had a discretion before he awarded an injunction and it was an equitable remedy and the Court could impose terms on the plaintiff before awarding it. The condition which the learned Judge imposed was that the plaintiff in this suit---the rights of all the parties having been ascertained---must undertake to pay to the defendant No. 1 the amount that he was liable to pay in respect of the putni rent paid by the dar-putnidar and that otherwise the injunction would not be awarded. That view seems to me to be a view which the learned Judge was entitled to take before granting the injunction asked for. There can be no advantage gained in the present case by leaving the parties to a separate suit, the rights being ascertained of all the parties and the learned Judge, I think, exercised a wise discretion in directing that, before this injunction should issue, the plaintiff must undertake to pay to the defendant No. 1 his portion of the amount of the rent paid by the first defendant for the putni, the plaintiff having enjoyed the benefit of such payment. Without that condition, the learned Judge declined to award the injunction. I am not prepared to say that in that he exercised his discretion wrongly or in a manner that we ought to review his order. It is quite clear that without the award of an injunction the declarations that have been made by the learned Judge in favour of the plaintiff would not be of such value as when the injunction is awarded. I see no reason to dissent from the view taken by the learned Judge that the injunction in this case ought not to be granted, except on conditions that the plaintiff should undertake to pay to the defendant No. 1 his portion of the putni rent which has been paid by the defendant No. 1. In that view of the case, the decree passed by the learned Judge of the Court below will be affirmed, subject, however, to the slight variation that, in lieu of the order of A the learned Judge that on failure to pay the money, the whole suit would be dismissed, there should be a direction that on failure to pay the money, the declarations that have been made in favour of the plaintiff would remain but that the injunction would not be issued, as the injunction was made conditional upon payment of the said money. Subject to this slight modification, the decree of the lower Court is affirmed and this appeal dismissed with costs---one hundred and fifty rupees.
4. The cross-objection not being pressed is dismissed. We make no order as to costs in the cross-objection.
5. I agree.