1. The appellants in this case are defendants Nos. 1 and 2. It appears that their landlord obtained a decree for rent against them and put up their holding to sale. The plaintiff alleging himself to be a mortgagee applied to deposit the decretal amount in Court under Section 178 of the Bengal Tenancy Act. The defendants objected. The Execution Court declined to decide the question whether or not the plaintiff was entitled to make the deposit and directed that the case should be disposed of on full satisfaction. The plaintiff then brought this suit to recover the amount he had deposited from the defendants and has obtained a decree in the Courts below.
2. It has been argued by the learned Pleader for the appellants that the suit was wrongly framed and that a joint decree should not have been given against all the defendants. It is pointed out on the other side that the suit was not one for contribution and that the decree is in accordance with the pleadings. But, in the view that I take of this case, it is not necessary for me to go into this question.
3. The main contention of the defendants is that the deposit was a voluntary payment and that the plaintiff was, therefore, not entitled to recover it. He relies upon the cases of Janki Prasad Singh v. Baldeo Prasad 30 A. 167 : A.W.N. (1908) 58 : 5 A.L.J. 163 and Yogambal Boyee Ammani v. Naina Pillai Markayar 33 M. 15 : 3 Ind. Cas. 110 : 6 M.L.T. 162 : 19 M.L.J. 489 to which I may add the case of Raja Baikuntha Nath Dev Bahadur v. Uday Chand Maiti 2 C.L.J. 311. Under Section 171 of the Bengal Tenancy Act the persons entitled to make a deposit are persons having any interest voidable upon the sale to avoid which the deposit is made. In the judgments of the Courts below I cannot find any distinct decision that the plaintiff in this case had an interest voidable upon the sale. The plaintiff claimed to be a mortgagee. Neither of the Courts below finds that he had at the time of making this deposit a valid subsisting mortgage. Indeed, it would be somewhat difficult for them to come to a finding of that nature inasmuch as in the suit which he brought to enforce his mortgage the Court held, upon the evidence before it, that the bond in suit was neither a mortgage-bond nor was executed for any consideration. The learned Subordinate Judge and the Munsif appear to have thought that if a person in good faith believed that he had an interest which would be voidable upon the sale he was entitled to make a deposit under Section 171 whether as a matter of fact he had such an interest or not. This, I think, is an erroneous view of law. It has been decided in a case between the parties that the plaintiff had no valid mortgage against the defendants. Under the circumstances he is not, I think, a person entitled to make an application under Section 171. Reliance has been placed by the learned Subordinate Judge on Sections 69 and 70 of the Contract Act. Section 69 runs, '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 re-imbursed by the other.' Here the question is much the same as that arising under Section 171 of the Bengal Tenancy Act. Is the plaintiff interested in the payment of the money? If he were a mortgagee he would have an interest in the payment, if he were not he would have no such, interest. Section 70 of the Contract Act runs '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' Here it may be admitted that the plaintiff did something for the defendants and that he did not intend to do this gratuitously. It may perhaps be said that the defendants enjoyed the benefit thereof, though this is by no means so clear inasmuch as he objected to the deposit being made and for aught I know, might have preferred that the holding should be sold. In the case reported in Yogambal Boyee Ammani v. Naina Pillai Marakayar 33 M. 15 : 3 Ind. Cas. 110 : 6 M.L.T. 162 : 19 M.L.J. 489, to which I have already referred it was held that it is necessary that the party sought to be made liable must not only be benefited by the payment but must also have had the opportunity of accepting or rejecting such benefit. Where no such option was left to him and the circumstances did not show that he intended to take such benefit it was held that he could not be said to have 'enjoyed' such benefit within the meaning of the section.
4. But the real question which arises with regard to Section 70 of the Contract Act is, whether this deposit was lawfully made by the plaintiff. The learned Pleader for the respondent relies on certain remarks of the learned Chief Justice in the case of Mohendra Ghoshal v. Bhuban Mardana 14 C.W.N. 945 : 6 Ind. Cas. 810. There the learned Chief Justice observed that as the plaintiff, in making the deposit which was the subject of that case, had acted with the approval of the Court, what he did was done lawfully. But it is very difficult to say here that this deposit was necessarily made with the approval of the Court. The Court entirely refused to go into the question whether or not the plaintiff was entitled to make the deposit. His order runs as follows: 'As the third party appears on the face of the document to be a mortgagee the amount deposited by him may go to satisfy this decree. As for whether the document is really forged or not, or as to whether the third party is really entitled to deposit the money or his deposit amounts to a voluntary payment, are questions which would be decided in a regular suit between the judgment-debtors and the third party and cannot be looked into in this execution case'. This is an extremely qualified sort of approval and I am not prepared to say that an order of that kind can make the action lawful within the meaning of Section 70 of the Contract Act. The word 'lawful' is otherwise defined in the case of Raja Baikuntha Nath v. Uday Chand 2 C.L.J. 311 to which I have already referred, the head note of which runs as follows: 'The word 'lawful' in Section 70 of the Contract Act is not merely surplusage. It must be considered in each individual case whether the person who made the payment, had any interest in making it, if not, the payment cannot be said to have been made lawfully.' The learned Subordinate Judge relies on two cases of this Court. The first is Bama Sundari Dassi v. Adharchandra Sarkar 22 C. 28. That case, however, seems to me to have no application to the present case inasmuch as the person who there deposited the money was the true owner and certainly had an interest in the matter. The other case is Bindu Bashini Dassi v. Harendra Lal Roy 25 C. 305 : 2 C.W.N. 150. In that case, too, the plaintiff who had deposited the money had then obtained a decree in his favour although further inquiry had been ordered by the High Court. Such a position seems to me entirely different from that of a man who has merely a claim which is subsequently found to be without foundation. The learned Pleader for the respondent relies also on the case of Chandra Sekhar Kar v. Nafar Chandra Kundu 4 C.L.J. 555, where it was held that in a case which does not come within Section 69 of the Contract Act the Court should apply the general law, legal and equitable and direct that the defendant who had received certain benefit from the plaintiff should compensate him. That, however, was a very peculiar case. It would be unsafe, in my opinion, to carry the principle laid down beyond the circumstances of that case. Otherwise, the enactment of Sections 69 and 70 of the Contract Act would appear to be more or less superfluous. It appears to me that the plaintiff had no interest voidable upon the sale and was, therefore, not entitled to make any deposit under Section 171 of the Bengal Tenancy Act. Nor was he interested in the payment of the money within the meaning of Section 69 of the Contract Act. Nor, even supposing that the defendant did enjoy any benefit from his deposit, was that deposit lawfully, made by him within the meaning of Section 70 of the Contract Act. Holding this view I must necessarily hold that the case has been wrongly decided and the appeal should be allowed and the suit dismissed with costs of all Courts.