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Siti Fakir Vs. Chand Bewa and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1928Cal389,108Ind.Cas.46
AppellantSiti Fakir
RespondentChand Bewa and ors.
Cases ReferredSuchand Ghoshal v. Balaram Mardana
Excerpt:
- .....are not at present disputed. the facts, shortly stated, are these.2. one samat sold seven wans of land to one khoshi bibi in 1315. in 325 koshi bibi gave in unsfructuary mortgage three-and-half wans out of the said seven wans of land to one jamatulla and others among these three-and-half wans of land was a plot, which, according to the petitioner, had been purchased by him in the year 1322 from one chand bibi. the petitioner's case was that samat bad made an oral gift of 16 wans of land to chand bibi and three others and that, after the death of samat which took place in 1318 b.s., there was a partition of the said 16 wans of land amongst the said donees, and that this particular 'plot fell to the share of chand bibi. after the mortgage aforesaid, the mortgagees, jamatulla and.....
Judgment:

Mukerji, J.

1. This rule is directed against the decree of the Munsif, First Court, Bogra, by which the learned Munsif, acting as a Judge of a Court of Small Causes has dismissed the petitioner's suit. The suit was for recovery of a sum of Rs. 133 odd from the defendants upon certain allegations, which as far as can be made out from the arguments, are not at present disputed. The facts, shortly stated, are these.

2. One Samat sold seven wans of land to one Khoshi Bibi in 1315. In 325 Koshi Bibi gave in unsfructuary mortgage three-and-half wans out of the said seven wans of land to one Jamatulla and others Among these three-and-half wans of land was a plot, which, according to the petitioner, had been purchased by him in the year 1322 from one Chand Bibi. The petitioner's case was that Samat bad made an oral gift of 16 wans of land to Chand Bibi and three others and that, after the death of Samat which took place in 1318 B.S., there was a partition of the said 16 wans of land amongst the said donees, and that this particular 'plot fell to the share of Chand Bibi. After the mortgage aforesaid, the mortgagees, Jamatulla and others, instituted a suit against the petitioner and others, alleging that they had obtained possession under the usufructuary mortgage in respect of only one-and-half wans of land and that they could not get possession of the remaining two wans and for that reason they instituted the suit for a declaration of their usufructuary mortgage right to the said two wans of land and praying for khas possession thereof and in the alternative for a decree for sale of the mortgaged properties. In that suit the petitioner, as defendant, set up a title paramount and averred that his purchase was before the mortgage and it was not affected by the same. That litigation ended in a decree passed by the Subordinate Judge on appeal, who upheld the decree for sale made by the trial Court, but held that the petitioner would not be bound by the sale of the said two wans of land which in the said decree was described as plot 3 of the plaint of that suit.

3. The mortgage decree that was obtained by the said mortgagees was put into execution and in the application for execution that was filed the petitioner's name appeared as the first judgment-debtor and plot 3 was also included in the schedule of properties, the said plot being mentioned as one of the mortgaged properties and the decree was sought to be executed in respect of that property as well. An order was made for the sale of the mortgaged properties as applied for on behalf of the mortgagees, and this particular plot was advertised for sale. Upon that the petitioner paid up the entire decrial amount by putting in the s am in Court under an order passed by the executing Court which stated that the amount deposited as aforesaid should be received and that the execution case should be dismissed on full satisfaction and the decree-holder permitted to withdraw the money. Thereafter the petitioner' instituted the present suit for recovery of the said sum of Rs. 133 odd from the defendants. The learned Munsif has dismissed the suit holding that the plaintiff had no right to be reimbursed either under the provisions of Section 69 or of Section 70; Contract Act. The learned Munsif has observed in his judgment that as the plaintiff's purchase had been made long; before the date of the mortgage, and am the mortgage suit was dismissed so far as it was against the petitioner, and it being; ordered in the judgment of the appellate Court in that suit that his interests in the land were not to be affected by the sale the plaintiff had no right to make, the deposit under Section 69, Contract Act. He, moreover, held that the payment, which the plaintiff made cannot be said to have been made 'lawfully' within the meaning of the word as used in Section 70, Contract Act. He held that the deposit made as aforesaid by the plaintiff was a mere voluntary payment and, there fore, be was not entitled to be reimbursed. In this view of the matter the learned Munsif, as I have already said, dismissed the suit.

4. The arguments that have been addressed to me on behalf of the petitioner in this rule have been to the effect that in the view which the learned Munsif has taken both as regards the provisions of Section 69 and of Section 70, Contract Act, the learned Munsif has been in error. So far as Section 69, Contract Act, is concerned it is to be noted that, notwithstanding the1 declaration which the petitioner had obtained in his favour in the mortgage suite and which was to the effect that his interest in plot 3 of the plaint in the suit would not be affected by the sale, the mortgagees decree-holders purported to proceed against the petitioner also, making no reservation whatsoever in respect; of his interest in plot 3 with regard to which there was a declaration of exemption as I have already stated. It has been urged on behalf of the opposite party that, although this was the state, of things, the fact that there was a declaration in favour of the petitioner by a competent Court which had finally determined that the interest of the petitioner in plot 3 would not be affected by that sale, was sufficient to take away any interest which the petitioner might otherwise have in the payment of the month and that the apprehension, if any, which he entertained by reason of the property being advertised for sale, was without foundation, and that he had no justification whatsoever such as would give him the right to be reimbursed under the provisions of Section 69, Contract Act. To accept this argument of the opposite party would be tot put the petitioner in a worse position than he otherwise would be in, merely because he had succeeded in obtaining beforehand a declaration protecting his rights, and I am clearly of opinion that, in the circumstances of the case, the petitioner, by reason of the apprehension which he entertained of the sale which was going to take place in respect of the plot which belonged to him, had an interest in the payment of the money which the other judgment-debtors in that case were bound by law to pay. The mere fact that there was a declaration in his favour is not sufficient to take away that interest. The decisions under Section 69, Contract Act, have made it perfectly plain that the words 'interested in the payment of money,' as used in that section, include an apprehension of any kind of loss or inconvenience or, at any rate, any detriment capable of being assessed in money while the same is not enough under the common law to found a claim for reimbursement. Reference in this connexion may be made to the decisions of Stanley, C.J., of the Allahabad High Court, in the case of Tulsha Kunwar v. Jogeshar Prasad (1906) 28 All. 563, of the Madras High Court in the case of Subramania Iyer v. Vengappa Reddi [1910] 33 Mad. 232 and of this Court in the case of Pankhabati Chaudhurani v. Nonihal Singh [1913] 18 C.W.N. 778. I am, therefore, of opinion that the case comes directly within the purview of Section 69, Contract Act, and in the circumstances in which the deposit is alleged to have been made by the plaintiff he is entitled to be reimbursed under the provisions of that section.

5. It is not necessary, in view of what I have just said, to deal with the question as to whether Section 70 would or would not apply to this case. But, even if I am wrong in the view that I have taken with regard to Section 69, I think that the case comes also within the purview of Section 70. Contract Act. It is true that the interest, of the petitioner in plot 3 of the suit, to1 which reference has already been made, was protected by the decree; but the existence of an interest is not always, though it is generally, a test which establishes the lawful character of a payment. In these circumstances it stands to reason to hold that such interest as the petitioner had in the sale was a sufficient interest which would make the deposit that he made a lawful payment within the meaning of Section 70. It has been held in a large number of decisions, to which it is not necessary to refer on the present occasion, inasmuch as they have been discussed in a recent decision of this Court in the case of Nagendra Nath v. Jugal Kishore Roy : AIR1925Cal1097 , that the words of Section 70, Contract Act, are very wide and, applied with discretion, they enable the Court to do substantial justice in a case where it would be difficult to impute to the person concerned relation actually created by a contract. It has been pointed out in that case that for the application of that section three elements are necessary, viz. first, that the act should be lawfully done for another; second, that it should not be the doer's intention to do it gratuitously, and third, that the other party should enjoy the benefit of it. So far as the second and third elements are concerned, there can be no question that they are present in the present case. As, regards the first of these elements : it is. sufficient to refer to the case of Suchand Ghoshal v. Balaram Mardana [1911] 38 Cal. 1, a case which, in my opinion, makes the nearest approach to the present one in which Sir Lawrence Jenkins, C.J., observed that if a deposit were made with the approval of the Court it should be held that it was a deposit made lawfully. I am, therefore, of opinion that this rule should be made absolute, that the decree against which it is directed should be set aside and the case should be sent back to the Court of the learned Munsif, so that the other issues which arise in the suit may now be dealt, with and disposed of ins accordance with law. Costs of this rule, one gold mohur, will abide the result of the suit.


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