1. This appeal is by the defendants in a suit for contribution.
2. The facts are that the plaintiff and his brother Jadu Safui held a jama of Rs. 32 under the landlords. Jadu sold his 8-annas share to the defendants who could not get their names registered in the landlord's sherishta as the tenancy was a non-transferable occupancy holding. Subsequently the landlords sued the plaintiff and his brother Jadu for arrears of rent. Jadu did not appear but the landlords' claim in the suit was settled between them and the plaintiff at Rs. 162 out of which the plaintiff paid Rs. 81 and for the balance payable by the defendants there was a decree in terms of the solehnama. The amount not having been paid, the decree was executed by the landlords and the holding in suit was sold. The plaintiff thereupon deposited the necessary amount under Order 91, Rule 89, Civil P.C., and saved the tenancy. Thereafter he brought the present suit for contribution against the defendants claiming the amount due from the defendants to him out of the amount deposited in Court for setting aside the sale. Both the Courts below have found on the facts in favour of the plaintiff and have given him a modified decree.
3. The defendants appeal and three points have been urged before us by the learned advocate on their behalf. It is argued in the first place that the plaintiff must show before he can succeed in the suit that the payment was for the defendants and for their benefit. In order to show that the defendants enjoyed the benefit of the payment by the plaintiff he must prove that the defendants had an opportunity of exercising an option of either rejecting or accepting the benefit and reliance for this purpose has been placed upon the case of Jagambal v. Naina Pillai  33 Mad. 15. In that case it was held that where a person makes a payment in order to save his own interest as well as the interest of his cosharer, it is not to be presumed that such payment is made for the benefit of the cosharer. The judgment in that case has been expressed in wide terms but there is a sound principle underlying it. A payment made against the will of another person may not be a payment which would give rise to the right of contribution. A co-tenant may be unwilling to retain the tenancy which he considers onerous and allows it to be sold for arrears of rent. His co-tenant by paying the rent in order to protect his own interest cannot as a matter of course claim the benefit of Section 70, Contract Act. But such a case seldom arises and the reported cases On this point do not give indication of any such case having ever been set up. That a payment made for a certain person of which he enjoys the benefit may be presumed from circumstances until the contrary is asserted and proved. The view so broadly taken is Jagamba v. Naina Pillai  33 Mad. 15 by the Madras High Court has not found favour in this Court : see the cases of Jog Narani Singh v. Badri Das  16 C.L.J. 156 and Punkhlati Ghoudhurani v. Nani Lai Singh  19 C.L.J. 72. The principle which should guide Courts in such cases has been authoritatively laid down in Suchand Ghosal v. Balaram  38 Cal. 1 and elaborately discussed in a considered judgment in Nagendra Nath Roy v. Jugal Kishore Roy : AIR1925Cal1097 .
4. The net result of the numerous decisions upon this point is that three things are necessary in order to bring a case under Section 70, Contract Act : first, the act must be lawfully done by a person for another; secondly, that the person doing the act must not be a volunteer; thirdly, that the person on whose behalf the act was ostensibly done enjoys the benefit accruing there from. If all these elements co-exist the person who does the act is entitled to claim contribution from the person on whose behalf he did the act in respect of the thing so done. In this case it is found that the defendants are still in possession of the property and are in enjoyment thereof which but for the payment of the plaintiff would have been sold by the rent decree. We are accordingly of opinion that the Courts below have taken a correct view of this matter and have rightly held that the plaintiff is entitled to claim contribution from the defendants under Section 70. Contract Act.
5. It is next argued that the defendants were no parties to the solehnama and, therefore, the payment under it by the plaintiff was a gratuitous payment and not made on their behalf. This objection should not also prevail on the facts of this case. It is true that the defendants were no parties to the solehnama but the compromise was effected in order to protect the property in which the defendants held a share. But it is said that the plaintiff might have paid his own share of the rent and the payment of the other half on behalf of the defendants was a gratuitous payment. This objection is met by Section 69, Contract Act. The plaintiff was a person interested in making the payment because if the payment had not been made his share in the holding would also have been sold. He made the payment and if he did it on behalf of the defendants he is entitled to be reimbursed. It is pointed out that the decree against the defendant's vendor Jadu was an ex parte decree and he was not bound to make the payment. As we have said, the payment was made to protect the property not of Jadu but of the plaintiff and the defendants. He is, therefore, entitled to claim contribution.
6. It has been held that Sections 69 and 70 and other sections dealing with this question lay down some rules of equity that have to be followed in doing justice between the parties. They are not exhaustive and circumstances may arise beyond the scope of any of the sections of the Contract Act, and the Courts may be called upon to decide the question in controversy between the parties according to the rules of justice, equity and good conscience. On the facts of this case there is no doubt that the plaintiff is entitled in law and equity to be reimbursed by the defendants. The appeal accordingly fails and is dismissed with costs.