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Kashi Nath Mukherjee Vs. Nil Ratan Saha and ors. - Court Judgment

LegalCrystal Citation
SubjectContract
CourtKolkata
Decided On
Reported inAIR1947Cal304
AppellantKashi Nath Mukherjee
RespondentNil Ratan Saha and ors.
Cases ReferredIn Manindra Chandra Nandi v. Jawahir Kumari
Excerpt:
- .....had deposited under section 14a, patni taluks regulation (viii of 1819), in order to set aside a patni sale; and the sole question which arises is whether he is entitled to recover. the appeal has been argued at great length, but may be disposed of on certain broad grounds.2. the suit was dismissed by both the courts below. shortly stated, the facts which it is necessary to set out for the purposes of this appeal are as follows : the plaintiff's father parbati oharan mukherjee held a mourashi mokarari tenure under the patni which belonged to one nani lai saha, the predecessor-in-interest of defendants 1, 2 and 3. nani lal had purchased this patni at a mortgage sale held on 20-2-1922, for a sum of hs. 30,000 the mortgage having been executed by the former patnidars, the sarkars, in.....
Judgment:

1. This is an appeal on behalf of the plaintiff in a suit to recover a sum of money which he had deposited under Section 14A, Patni Taluks Regulation (VIII of 1819), in order to set aside a Patni sale; and the sole question which arises is whether he is entitled to recover. The appeal has been argued at great length, but may be disposed of on certain broad grounds.

2. The suit was dismissed by both the Courts below. Shortly stated, the facts which it is necessary to set out for the purposes of this appeal are as follows : The plaintiff's father Parbati Oharan Mukherjee held a mourashi mokarari tenure under the patni which belonged to one Nani Lai Saha, the predecessor-in-interest of defendants 1, 2 and 3. Nani Lal had purchased this patni at a mortgage sale held on 20-2-1922, for a sum of HS. 30,000 the mortgage having been executed by the former patnidars, the Sarkars, in favour of the plaintiff's father for a sum of Rs. 10,500. The patni rent having fallen into arrears, the zamindars instituted proceedings for sale of the Patni under Regn. VIII of 1819, and on 17-11-1937, the patni was sold and purchased by the zemindars themselves. It appears that on the day preceding the Astam sale, the patni was put up to sale in execution of a money decree, and the plaintiff and his brothers purchased the property. Upon the death of Parbati Oharan Mukherjee, the plaintiff and his brothers had also succeeded to the mourashi mokarari tenure under the patni.

3. Within 30 days from the date of the patni sale, namely, on 14-12-1937, the plaintiff deposited a sum of Rs. 3412-11-11 pies under Section 14A, Patni Regulation in order to have the sale set aside. The deposit was expressly made by him as holder of the mourashi mokarari tenure on the allegation that unless the sale was set aside, the tenure was liable to be extinguished. In other words, it was stated that the deposit was made in order to save the mourashi mokarari tenure in which the plaintiff was interested along with his brothers The plaintiff thereafter instituted the present suit against the heirs of the patnidar Nani Lal Saha, who had died in the meantime, these heirs being defendants 1 and 2, the surviving sons, and defendant 3, the surviving widow of the deceased patnidar, for recovery of the said sum of Rs. 3412-11-11 pies with interest and costs.

4. The defence in substance was that the payment made by the plaintiff was entirely in his own interest and conferred no benefit on the defendants. The defendants had in fact lost their interest in the patni by virtue of the money execution sale on 16-11-1937, and further, after the sale of the patni on the following day their liability for the patni rent had entirely ceased. The defendants accordingly maintained that they were not liable to reimburse the plaintiff for the payment he had made.

5. Both the Courts below accepted the defence plea. The case was considered with reference to Sections 69 and 70, Contract Act, and on general grounds of equity, but neither under the statute nor on principle was the plaintiff held entitled to succeed.

6. In support of their decision, the Courts below relied on the case in Manindra Chandra Nandi v. Jawahir Kumari ('05) 32 Cal. 643, which in effect approved two earlier decisions of this Court in Maharani Dasya v. Harendra Lal Roy ('96) 1 C.W.N. 458 and Peary Mohan Mukhopadhya v. Sreeram Chandra ('02) 6 C.W.N. 794. In Manindra Chandra Nandi v. Jawahir Kumari ('05) 32 Cal. 643 it was held that by virtue of Section 65, Bengal Tenancy Act, which declares rent to be the first charge upon the tenure, the purchaser of a patni at a mortgage execution sale took it subject to the liability of discharging the rent that was then due upon the property. He was accordingly the person who was 'bound by law to pay' the rent within Section 69, Contract Act. Accordingly, if he paid any money to save the tenure from sale in execution of a rent decree, he could not be said to have paid it merely as a person 'interested in making the payment.' Section 69, Contract Act, would not apply in favour of such a purchaser making a payment in such circumstances.

7. The correctness of this decision was strenuously challenged before us by Mr. Panchanan Ghose on behalf of the appellant. Apart from the fact that the decision has been followed in subsequent cases, we are not, however, prepared to hold that it offends in any way either against the provisions of the statute, or against any principles of common justice. Mr. Ghose argued that the interpretation, which the learned Judges who decided Manindra Chandra Nandi v. Jawahir Kumari ('05) 32 Cal. 643 put upon Section 69, Contract Act, was manifestly contrary to or inconsistent with the wording of the section itself. The contention in that case on behalf of the plaintiff appellant was that inasmuch as the defendant, the mortgagor, was in possession of the patni during the period in respect of which the rents in arrear had accrued, he was bound in law to pay the rents due, and that the plaintiff, being interested in the payment of that money, was entitled under Section 69 to call upon the defendant, the mortgagor, to make good the amount which he had to pay. Their Lordships pointed out that at first sight the contention would appear to find support in Section 69, but 'looking into the matter more closely' they went on to add:

It would seem that the section contemplates a case where the person, who makes the payment, is under no legal liability to make it, and he pays the money for another person, who is bound in law to pay. In that case, the former is entitled to call upon the latter to make good the amount that he has paid.

They then proceeded to observe:

If that be the true view of the section, it is obvious that the plaintiff, being under the legal liability to pay the rent that, was due upon the property, when he made the purchase, could not be regarded as a person who under Section 69, Contract Act, was entitled to call upon the defendant to make good the amount that he had paid.

8. Mr. Ghose's point was that the learned Judges overlooked that even though the plain, tiff as purchaser might be liable for the rent, it could not be said that the liability of the original patnidar had ceased. The learned Advocate tried to reinforce his argument by suggesting that even if the patni had been sold in execution of the rent decree, the original patnidar's liability to pay the rent could not be said to have been extinguished. Pounding on this view, Mr. Ghose proceeded to cite a number of cases in which it was held that if a person was interested in the payment of money which another was bound by law to pay, and the person paying was also bound by law to pay it, he would not merely on that ground be disentitled to the benefit of Section 69.

9. So far as the last proposition is concerned, that need not be disputed. If a person is interested in the payment of money which another is bound by law to pay, and he pays it, he will still be entitled to be reimbursed by the other, even if it turns out that he himself was under a legal liability to pay. As we understand the decision in Manindra Chandra Nandi v. Jawahir Kumari ('05) 32 Cal. 643, we do not think that that case intended to lay down a contrary proposition. It may be that the way in which the learned Judges expressed themselves was susceptible of misinterpretation, but in our opinion, all that their Lordships meant to say was that Section 69 contemplated a ease in which there must be two parties one who paid the money because he was interested in making the payment, and the other who was under a legal liability to pay. Where, however, the two parties were rolled into one, there could obviously be no room for the application of Section 69. The material question which arises, therefore, in cases of the kind we have before us, is whether or not it can be said that, other than the person who made the payment because it was in his interest to make it, there was another person of whom it might be said that he was bound by law to pay. In Manindra Chandra Nandi v. Jawahir Kumari ('05) 32 Cal. 643, as also in the present case, the argument on behalf of the defence was and is that there was BO such 'other' person. Whether that is a correct view or not is a different matter, but that undoubtedly is the basis of the decision.

10. Mr. Ghose did not dispute the view that the purchaser of the patni at the court sale took subject to the liability to pay the outstanding rent. His sole contention was that this did not relieve the former tenant of his personal liability. It seems to us that that is stating the case too high. Astam proceedings for the sale of a patni under Regulation VIII of 1819 are, it is well settled, directed against the tenure itself and not against the individual patnidar. Where, therefore, a zemindar has instituted such proceedings, it is fair to hold that so long as those proceedings are pending, there can be no question of any personal liability of the patnidar being then available for enforcement at the instance of the zemindar. The zemindar might have elected to proceed against the patnidar personally for arrears of rent. But if he chose to recover his dues by enforcing the rent charge either by a suit for rent under the Bengal: Tenancy Act, or by summary proceedings under i the Astam Kegulations, he must be deemed to have waived his right to proceed against the patnidar personally at the same time, except in so far as the personal remedy was involved into the proceedings actually taken against the tenure.| In our opinion, Mr. Jana, on behalf of the: respondents, was right in contending that in view of the Astam proceedings it could no longer 1 be maintained that at the date of the deposit by plaintiff the patnidar was still bound by law of pay the rent for which the Astam sale was held. That being so, it follows that there was here only one person who was bound by law to pay the rent, and that person was the plaintiff and not the former patnidar.

11. There is another and a much shorter answer to the plaintiff's claim. In Manindra Chandra Nandi v. Jawahir Kumari ('05) 32 Cal. 643 the patni had been advertised for sale and the deposit was made with a view to avert the sale; the suit was subsequently brought to recover the amount which had been deposited. In the present case, however, the sale was held and the deposit was made thereafter under the provisions of Section 14-A which was introduced for the first time in 1933. This section provides as follows:

It shall be competent to a defaulting patnidar of a patni taluk or a defaulting holder of a tenure sold under this Regulation or to a talukdar or tenure-holder of the second degree of such taluk or tenure or to a person holding an interest in such taluk or tenure m virtue of a title acquired before the sale of the taluk or tenure or to a person having a mortgage on such taluk or tenure to apply to the Collector to have the sale set aside on the applicant depositing with the Collector within thirty days from the date of sale....

Can it be said that at the date the deposit was made any person was still bound by law to make the deposit, so as to attract the provisions of Section 69, Contract Act, against him Section 69 is in these terms:

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.

12. It must be clear from the terms of this section that what it requires is that there must be a person interested in the payment of money and another person bound by law to pay the same. In other words, the legal obligation of the latter to pay must be in respect of the same| money which is deposited by the former. One; pays it because it is to his interest to pay, though he may not be legally bound to pay; but as regards the other, he must be a person legally bound to pay, that is to say, to pay the very : same sum. The question is whether after the patni sale, any one could be said to be bound by law to pay the money which could be paid under Section 14-A. The parties who are entitled by that section to make the deposit are all persons interested in making that deposit, because thereby they save their respective interests in or arising out of the tenure but it is difficult to see how any such person or for the matter of that any other person may be held to be bound by law to make such deposit. Prom this point of view, we think, it may fairly be held that in the case of a deposit under Section 14-A, Patni Taluks Regulations, Section 69 cannot possibly be invoked in order to support a suit for recovery of the amount deposited as from a person bound by law to make such deposit. If we are right in the view we take, the plaintiff's claim cannot manifestly be supported under Section 69.

13. Can Section 70, Contract Act, then, avail the plaintiff? That section provides 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.

We do not think that on the facts of the present case Section 70 can have any application. Three things are essential before this section can be applied. In the first place, the thing done (here, the payment made) must be 'for another person.' Secondly, this must not be intended to be done gratuitously, and thirdly, 'the other person' must enjoy the benefit of the thing done. None of these conditions is satisfied here. It cannot be said that the deposit which was made by the plaintiff was made for, or in the interest of, or for the benefit of the former patnidar. As was practically conceded on behalf of the plaintiff in connection with his case under Section 69, the payment was made in the interest of the plaintiff Ihimself and his cosharers. If, as already explained, the former patnidar was not at the time personally liable for the rent in view of the Astam proceedings, one cannot see how the payment in question can be said to have been made on his behalf. It was expressly made by the plaintiff for his own benefit. It was a payment 'lawfully' made no doubt, but it did not purport to be a payment made for the defendants. As regards the second condition, it may be conceded that the payment was not gratuitous. But as regards the third, this was certainly wanting, for, as just explained, the defendants never intended to, nor did they enjoy the benefit of the payment. They had already lost their interest in the patni by the money execution sale held on 16-11-1937, and then on the following day it was again effectively lost to them by the patni sale. Upon the sale being set aside, it might no doubt be said the patni would be restored to them, leaving aside the effect of the sale of 16th November, but even so, a person cannot be said to enjoy a benefit which is imposed upon him against his will, or against his interest. We are satisfied, therefore, and Mr. Ghose did not seriously contend otherwise, that Section 70 can be of little or no assistance to his clients.

14. It remains to consider whether on general grounds of equity the plaintiff may be said to have made good his claim. So far as this is concerned, it is sufficient to refer to the facts to which attention has been drawn by the learned District Judge in the Court below. The findings in this connection are clear and unequivocal. The property, as stated before, had been purchased by Nani Lail Saha for a sum of over Rs. 30,000. The plaintiff purchased it only for Rs. 5000. It is only reasonable to suppose that in making his bid the plaintiff must have reckoned for payment of the outstanding liability on account of rents. Even so, he would be still left with a sufficiently large margin of profit, and it would be futile to call in aid any principles of equity, justice or good conscience to make good any supposed hardship or injustice to him. Not only was there no hardship or injustice, but even with the added burden of the outstanding rents, or of the subsequent deposit he made under Section 14A, Patni Regulations, the bargain was not only not onerous, but sufficiently advantageous.

15. We have not thought it necessary to refer in detail to all the cases cited on one side or the other, as they did not carry the arguments much further than the words of the sections themselves. For the foregoing reasons, we must dismiss the appeal with costs.


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