Lancelot Sanderson, C.J.
1. In this case there has been an appeal from the judgment of Mr. Justice Coxe by the plaintiff, and the circumstances of this case are to my mind somewhat extraordinary. It appears that on the 4th August 1904, there was alleged to have been made a mortgage by the defendants in this case in favour of the plaintiff of certain property, which need not be more specifically described. After that mortgage the zemindars brought an action against the defendants for rent and obtained a decree, and were proposing to sell the defendants' interest for the purpose of realizing their decree. Subsequently on the 17th of January 1907, the plaintiff made a deposit of Rs. 284 in the Court in which the decree by the zemindars had been obtained, and it is for the recovery of that amount that the present suit was brought. The deposit was made under somewhat peculiar circumstances. As has been pointed out by my learned brother, Mr. Justice Mookerjee, it was made in the first instance by the plaintiff ex parte; then the defendants appeared upon the scene, and objected to the plaintiff making that deposit on the ground, as they alleged, that the plaintiff had no interest in the property, that he was not a mortgagee and that he ought not to have been allowed to make the deposit; and a note which was made on the record is 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 to 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-debtor and the third party and cannot be looked into in this execution case.' Therefore, it is obvious to my mind that the defendants, upon this deposit being brought to their notice, put in an objection upon the ground that the plaintiffs' alleged mortgage was not a mortgage at all, but that in fact it was a forged document and that the plaintiff had not paid any money to the defendants in respect of the document.
2. Now, the first question that arises upon that is, whether in those circumstances the plaintiff can be said to be a person who conies within Section 170, paragraph (3), of the Bengal Tenancy Act, which runs as follows: The judgment-debtor, or any person having in the tenure or holding any interest voidable on the sale, may pay money into Court under this section.' Now it appears that when the matter of the validity of the mortgage came to be investigated by the Court in a mortgage suit which the plaintiff brought in 1907, it turned out that the first Court held that it was not satisfied that the defendants had executed the mortgage at all and that it was quite satisfied that the plaintiff had not made any payment in respect of the alleged mortgage and the second Court, to whose decision of course we must have most regard as far as the facts are concerned, held that that document was a concocted document. Under those circumstances, and having regard to those facts, the plaintiff being simply a holder of a document which the Court has found to be a concocted document, and he being a person who had advanced no money to the defendants, is it possible for us to say that he is a person having any interest voidable on the sale? ' In my judgment it is sufficient only to state the facts to show that it is not possible for us to say that he is such a person, and, therefore, he ought not to have been allowed to make the deposit under the procedure provided by Section 170 or Section 171 of the Bengal Tenancy Act.
3. Then it is said that the plaintiff comes within either Section 69 or Section 70 or perhaps both of the Contract Act of 1872. in order to come within Section 69, the plaintiff must show that he is a person who is interested in the payment of the money which another was bound to pay: or if he is to come within Section 70 he must be a person who lawfully paid for the defendant not intending to do so gratuitously and that the defendant has enjoyed the benefit of such payment. In my judgment, having regard to the facts which I have stated, he does not come within either.
4. The test as regards the meaning of the word 'lawfully' was laid down by my learned brother, Mr. Justice Mookerjee, in the case of Raja Baikunto Nath Dey Bahadur v. Udoy Chand Maiti 2 C.L.J. 311 at. p. 316: 'The word lawfully' in Section 70 of the Contract Act is not merely a 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.' I expect my learned brother would agree with me, when I say he meant had any lawful interest in making it', because having regard to the judgment which was delivered in the mortgage suit, it seems to me that the plaintiff in this case had a very considerable interest in making this payment; for his scheme seems to have been that he had bought adjoining land, and he hoped that if he could get the Court to hold that the forged mortgage was a valid mortgage and then when the zemindar brought a suit for rent, and the tenant was not able to pay the rent, he could step in on the basis of his mortgage and might thereby obtain possession of the adjoining land and might get that which he desired to obtain: thereby he certainly had an interest from his own point of view in making the payment. But in my judgment it must mean lawful interest: and having regard to the facts which I have stated, I do not think that the plaintiff had such an interest. This is quite sufficient for the decision with regard to Section 69, at which the learned Judge has arrived. I do not think that the plaintiff was interested in the payment of money within the meaning of Section 69, nor was the payment 'lawful' within the meaning of Section 70.
5. Stress is laid upon the fact that the defendants having had the benefit of the payment, they are liable. I am not sure how the matter stands in that respect. Bat assuming for the sake of argument that they have benefited by the payment, I think that is not sufficient to bring the case within the meaning of Section 70, because it is pointed out by the Privy Council in the case of Ram Tuhul Singh v. Biseswar Lal Sahoo 2 I.A. 131 : 23 W.R. 305 : 15 B.L.R. 208 (P.C.), the passage to which I wish to refer being at page 143, that--'Even if this were true, it is not in every case in which a man has benefited by the money of another, that an obligation to repay that money arises. The question is not to be determined by nice considerations of what may be fair or proper according to the highest morality. To support such a suit there must be an obligation, express or implied, to repay.' How can it be said in this case that there was either an express or implied obligation to repay when the defendants, at the first opportunity after it was brought to their knowledge that this deposit was made by the plaintiff, went to the Court to protest against the making of the deposit on the ground that plaintiff had no interest to make the deposit, and that the mortgage was a forged mortgage? Having regard to those facts it is impossible to say that this payment was made upon the implied undertaking to repay.
6. On these grounds I think that Mr. Justice Coxe's judgment was correct, and this appeal ought to be dismissed with costs.
7. I entirely agree.