Citation Codes

Equivalent Citations

citation codes

Case Number

Original Civil Jurisdiction Suit No. 1182 of 1915

Judges

Marten, J.

Acts

Sections 222 or 223 of the Contract Act.
Sections 69 and 70 of the Contract Act,
SECTION 70 CONTRACT ACT

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Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

This action seeks reimbursement from the immovable property of the Fulmali caste for sums totalling Rs. 7,234 paid by the second plaintiff to set aside a judicial sale and to satisfy attachments made in Suit No. 559 of 1911. The defendants, except defendants 11 and 12, were represented in this action under a representation order made under Order I, Rule 8. The dispute arises out of a previous representative suit (No. 559 of 1911) brought by Shankar on behalf of himself and other members of the caste for an account and further relief. That suit was dismissed by Heaton, J. (decree dated 2 July 1912) and the dismissal was confirmed on appeal (appellate decree dated 17 January 1913). Execution applications for costs resulted in attachments (and in one instance a sale) of the caste immovable property described as the Caste Meeting House or Sabha Reha in Bombay.

The attachments were made on applications to the Prothonotary (Exs. E, F, G), and a sale was effected on 17 June 1914 of "the right, title and interest of the appellant Shankar and of all others, the members of the Fulmali caste" to a purchaser (Ex. L). The second plaintiff (who had been a trustee and treasurer at an earlier date) obtained an order setting aside the sale on payment (order of 25 July 1914, Ex. N) and paid various sums (the total of which is Rs. 7,234) to redeem the property and satisfy attachments and related liabilities. Plaintiff 1 no longer had an interest and was struck off the record. Defendants 11 and 12 agreed to a charge on their shares and were discharged; the second plaintiff abandoned his claim for a personal decree against all defendants but sought a declaration of a charge (or other relief) in respect of the Rs. 7,234.

Legal Issues Presented

Whether the plaintiff (second plaintiff) is entitled to any charge on the caste property and, if so, as to whose interests therein and for what amount. (Formally posed as Issue No. 1 in the judgment.)
Whether the second plaintiff is entitled to any other relief in the suit (Formally posed as Issue No. 2 in the judgment).
Whether the judicial sale and warrants for attachment (made in execution of costs) were valid and binding on the caste, such that satisfaction of them by a third party (here, a caste member) gives that third party a right to compensation.
Whether payment by the plaintiff to redeem the property can give him rights equivalent to an encumbrancer (i.e., standing in the shoes of an encumbrancer) where the encumbrance was an attachment rather than a mortgage.
Whether Sections 69 and 70 of the Indian Contract Act apply to entitle the plaintiff to compensation, and in particular whether Section 70 confers merely a personal right or also a charge on property.
Whether a personal decree can be made against a large unincorporated body or caste (i.e., whether representative defendants can be subject to a personal money decree), and if not, what relief can be fashioned to provide effective remedy without imposing unfair personal liability on individual members.
Whether the five per cent compensation payable to a purchaser under Order XXI, Rule 89 (paid to set aside the sale) should be included in the compensation claimed by the plaintiff.

Arguments of the Parties

Plaintiff's Arguments

The second plaintiff asserted he lawfully paid sums to set aside the sale and satisfy attachments to preserve the caste property and did not intend to do so gratuitously; therefore Sections 69 and (in particular) 70 of the Contract Act entitle him to compensation.
The plaintiff argued that by paying off the encumbrances he had preserved the caste property for the members and so the caste had enjoyed the benefit of his payments.
The plaintiff abandoned his claim for a personal decree against all defendants and sought relief by way of compensation or a declaration affecting the shares of the caste members in the immovable property; he disclaimed any intention to obtain priority over other creditors.
The plaintiff maintained the five per cent paid to the purchaser under Order XXI, Rule 89 formed part of the sums required to redeem the property and should be included in compensation.

Defendants' Arguments

The defendants (other than 11 and 12) contended the judicial sale and warrants for attachment were per incuriam and without jurisdiction, and therefore not binding on the caste; accordingly the plaintiff paid off liabilities which the caste was not legally bound to pay and cannot recover.
It was argued that the decrees and orders in the prior suit referred to Shankar personally, which suggested that only Shankar (and not the caste) was liable for costs, negating execution against the caste property.
The defendants contended that even if Section 70 applied it conferred only a personal right (no charge on property), so the plaintiff could not obtain a charge on caste property; further, they argued no personal decree could be made against the caste as a large unincorporated body.
Objection was taken to including the five per cent purchaser's compensation (under O.21, R.89) in the plaintiff's claim for reimbursement, and prior authorities were cited against allowing that sum.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Butler v. Rice	Illustrates that payment of a mortgage-like encumbrance can enable the payer to stand in the shoes of the encumbrancer.	The court observed that if the encumbrance had been a mortgage the plaintiff might have stood in the encumbrancer's shoes, but held that an attachment is not a charge in the same sense and the cases distinguishing attachments from mortgages were relevant.
Tangya Fala v. Trimbak Daga	Recent authority cited approvingly alongside Butler v. Rice (cited in the opinion).	Referenced as a case where Butler v. Rice had been cited with approval; used to contextualize the distinction between mortgages and attachments.
Kristnasawmi Mudaliar v. Official Assignee of Madras	Authority showing that an attachment does not create a charge conferring priority in bankruptcy.	Used to support the court's view that attachments do not operate as charges giving priority over other creditors.
Raghunath Das v. Sundar Das Khetri	Same principle as above regarding attachments not creating a charge with priority.	Relied upon as authority that a judgment-creditor under attachment does not obtain the priority characteristic of a charge or mortgagee.
Jitmand v. Ramchand	Same principle regarding the nature of attachments.	Also cited to show that attachments are not equivalent to mortgage charges.
Suchand Ghosal v. Balaram Mardana (Mohendra Ghoshal v. Bhuban Mardana)	Interpretation of Section 70 of the Contract Act: Sir Lawrence Jenkins' comment that S.70 is wide and should be applied with discretion to do substantial justice.	The court adopted Sir Lawrence Jenkins' words to support a broad but discretionary application of Section 70 in the present facts.
Taff Vale Railway Co. v. Amalgamated Society of Railway Servants	Authority on suing an unincorporated society or representative body; observations by Lord Macnaghten and Lord Lindley that a trade union could be sued in representative form and that orders for payment could be enforced against the property of the union.	Quoted at length; the court relied on the observations to support the proposition that representative defendants can be subject to orders enforceable against their property and that representative actions may lie where appropriate.
Markt v. Knight Steamships Co.	Authority discussing the limits of representative suits (Lord Moulton's view that representative suits are inappropriate where relief sought is purely personal damages).	The court examined Lord Moulton's observations to contrast circumstances where representative actions are inappropriate (e.g., for personal damages) with the present case, which concerns a common fund/property; the court found Markt not inconsistent with Taff Vale for present purposes.
Mercantile Marine Service Association v. Toms	Example of English cases where representative actions were held not to lie for certain torts (e.g., libel).	Not directly applied but cited to show limits on representative suits in English authority.
London Association for Protection of Trade v. Greenlands, Limited	Another example of limitations on representative actions for torts.	Cited as part of the survey of English authority on representative suits.
Walker v. Sur	Refused leave to sue an unincorporated religious society on behalf of all members where there was no common fund or trustees; execution could only be obtained against individuals sued.	Used to illustrate that where there is no common fund or trustees representative relief and execution against the body may be unavailable—distinguished from the present case which involves common property and trustees.
Russell v. Amalgamated Society of Carpenters and Joiners	Held that an action for payment out of the funds of a society would not lie against secretary and trustees where the action was not representative.	Cited to show limits on representative or fund-based relief where the framing of the action is different; considered in the context of whether relief against the caste funds/property is maintainable.
Bedford (Duke of) v. Ellis	Quoted in Markt to support the principle that a representative suit is appropriate where relief is beneficial to all represented persons.	Referred to via Markt to illustrate the general principle governing representative actions.
Dori Lal v. Patti Ram	Authority cited for the proposition that five per cent compensation payable to a purchaser on setting aside a sale might not be recoverable.	Cited by defendants; the court considered it but concluded the five per cent was part of the sums properly included as required to redeem the property and recoverable in this case.
Mohendra Nath Choshal v. Balaram Mardana	Similar authority to Dori Lal v. Patti Ram on the recoverability of the purchaser's compensation.	Cited by defendants; the court respectfully disagreed with those decisions for the purposes of the present case and allowed inclusion of the five per cent in the compensation awarded.

Court's Reasoning and Analysis

The court proceeded through a step-by-step legal analysis grounded in the facts and procedural history as follows:

Findings of fact and procedural posture:
- The facts were largely undisputed: the prior suit (No. 559 of 1911) was instituted by Shankar as a representative action and was dismissed, with costs ordered against Shankar/the plaintiff; execution applications by the judgment-creditors led to attachments and ultimately to a sale of the caste immovable property.
- No appeal was taken from (a) Batchelor, J.'s order declining to set aside the attachments, or (b) Macleod, J.'s order against Shankar and all the caste members, and the sale proceeded and was later set aside on payment by the second plaintiff.
On whether attachments created a charge: the court examined the nature of attachments and held (relying on cited authorities) that an attachment is not a charge in the mortgage sense and does not give priority in bankruptcy. Thus the court rejected the notion that the judgment-creditors/purchaser had the kind of equitable charge that mortgage law would confer.
On the legal basis for plaintiff's claim: the court addressed two possible legal bases advanced by the plaintiff (standing in the shoes of an encumbrancer and Sections 69/70 of the Contract Act). The court found the "standing in the shoes" argument weak because attachments are not mortgages or charges in the mortgage sense. The court, however, accepted Section 70 of the Contract Act as an appropriate statutory basis.
Application of Section 70:
- The court quoted S.70 and adopted Sir Lawrence Jenkins' construction in Suchand Ghosal v. Balaram Mardana that S.70 is wide and may be applied with discretion to do substantial justice.
- The court concluded that (i) the plaintiff's acts were lawful, (ii) he acted for the caste, (iii) he did not intend to act gratuitously, and (iv) the caste members enjoyed the benefit because their shares in the caste property were preserved from sale at an undervalue. These elements satisfy S.70 such that the plaintiff was prima facie entitled to compensation under that section.
On the defendants' contention that the attachments were invalid: the court held that, because there had been no appeal from the orders declining to set them aside, the caste was bound by these attachments as between themselves and the judgment-creditors. Consequently, the defendants could not deny their liability vis-à-vis a third party (the second plaintiff) who paid to relieve the consequences of those attachments.
On whether S.70 gives a charge or only a personal right: the court observed that S.70 likely confers a personal right and not a charge. But because the plaintiff disclaimed any claim to priority over other creditors, the court did not decide the point definitively; instead it fashioned relief limited to the caste property to avoid conferring priority or unfair personal liability on individual members.
On the permissibility of any personal decree against the caste: the court surveyed English authorities (notably Taff Vale and Markt) and concluded that representative defendants defending by properly qualified representatives and where there is common property can be the subject of relief that affects the property of the body. The court considered it unfair to make a personal decree simpliciter against all members of a large body and therefore directed relief limited to the immovable property and the members' shares therein, with the plaintiff undertaking not to levy execution except against that property.
On the five per cent purchaser's compensation under O.21, R.89: although authorities were cited against recovery of that sum, the court held that in the circumstances this five per cent formed part of the sums required to redeem the property; the court saw no principled distinction between it and other sums paid to set aside the sale and accordingly allowed it to be included in compensation.
Costs and mode of satisfaction: the court exercised powers under section 35 of the Code of Civil Procedure to direct payment of costs out of the immovable property and fixed a priority scheme for payment of the taxed party-and-party costs relevant to the parties in this action.

Holding and Implications

Holding:

The court declared that the second plaintiff is entitled to compensation in respect of the moneys paid by him (particulars in Ex. B), and ordered that the defendants and all other members of the Fulmali caste (other than the second plaintiff) pay to the second plaintiff the sum of Rs. 7,234, subject to the second plaintiff's undertaking not to levy execution under the order except against the immovable property mentioned in the schedule (the caste property) or the shares of the caste members therein. Formal Issue No.1 (whether plaintiff 2 is entitled to any charge on the caste property) was answered "No." Formal Issue No.2 (whether plaintiff 2 is entitled to any other relief) was answered "Yes" to the extent and for the reasons given in the judgment. The suit was decreed.

Implications and consequences:

Direct consequence for the parties: the second plaintiff is awarded Rs. 7,234 to be paid by the defendants and other caste members (other than the second plaintiff), but enforcement is restricted to the caste immovable property and members' shares therein by virtue of the plaintiff's undertaking. Defendant 11 and 12 were discharged upon agreeing to a charge on their shares; plaintiff 1 was struck off the record as she had no interest.
On charges and priority: the court declined to hold that S.70 creates a charge conferring priority; it limited its order to avoid creating priorities over other creditors (the plaintiff disclaimed seeking priority in any event).
On representative actions and costs: the court emphasized caution in granting representation orders under Order I, Rule 8 and in making cost orders in representative actions. It indicated that, where appropriate, courts can direct costs to be paid out of particular property under section 35 CPC, and recommended clearer drafting of orders to specify whether a representative alone or the representative and those represented are to bear costs.
No sweeping new precedent announced: the court decided the matter on the particular facts, applying Section 70 and existing authority. The court refrained from making a broad pronouncement that S.70 creates a charge; instead it crafted relief tailored to the facts (compensation payable from the caste property only).

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Bhicoobai v. Hariba Raghuji

1. This is an action in effect to recover out of the immovable property of the Fulmali caste certain sums of money amounting in all to Rs. 7,234, which were paid by the plaintiff in order to set aside a judicial sale of this immovable property and to satisfy certain other attachments which had been made against this property in Suit No. 559 of 1911. The defendants other then defendants 11 and 12 represent the caste under a representation order made in this action under O. 1, R. 8. The defence in effect is that this judicial sale and the warrants for attachment were all made per incuriam without jurisdiction and are not binding on the caste, and that even if they are binding, the plaintiff is not entitled to any charge on the property and is indeed without any remedy, for it is contended that as he is not entitled to a personal decree against all the members of the caste, he cannot by attachments get at the caste property. The immovable property in question is the Caste Meeting Honseor Sabha Reha in Bombay, Beyond that it does not appear that the caste has any other property, immovable or moveable. The facts are not really in dispute, but must be stated in order to understand how the numerous technical points of law and practice arise. In particular the point arises as to what relief can he obtained by a plaintiff in an action which the defendants are defending under a representation order.

2. The material facts are as follows: The previous action No. 559 of 1911 was a representative action brolight by one Shankar on behalf of himself and all other members of the Fulmali caste against two other members, for an account of certain moneys of the caste received by such two members and for further relief. This action had been authorized by a resolution of 6th November 1910 of the caste, which will be found on p. 79 and 80 of the appeal paper book in the suit. It is also clear from Heaton J's judgment in the same case that Shankar was authorized so to sue (see p. 238 of the appeal paper book where issue “No. 4” appears to be a misprint for issue No. 8). By the decree of 2nd July 1912 the suit was dismissed by Heaton, J. and the Court ordered “that the plaintiff do pay to the defendants their costs of this suit” except of two full days' hearing on issue No. 4 and “that the defendants do pay to the plaintiff his costs of two full days” and that the one set of costs be set off against the other. Shankar appealed and by the appeal decree of 17th January 1913, after describing Shankar as the appellant, the appellate Court confirmed Heaton J's decree and ordered that “the appellant do pay to the respondents their costs of this appeal.” The members of the appellate Court were my Lord the Chief Justice and Chandavarkar, J.

3. It was strongly urged before me that these decrees of Heaton, J., and the appellate Court meant that Shankar personally was to pay these costs and not the caste and it was pointed out particularly that in the decree of Heaton, J., the word his was used with reference to the plaintiff and that in the appellate decree Shankar was described as the appellant and that this would seem to negative any suggestion that the word plaintiff or appellant in those decrees would mean Shankar and all other members of the caste or enable execution to be obtained against anybody but Shankar. However on 12th November 1913, there was an application for execution (Ex. E) under O. 21, R. 11, which application as amended on 18th November 1913 asked for the attachment of the above-mentioned immovable property of the caste and the sale of the right, title and interest of the plaintiff and all the other members of the caste therein in respect of Rs. 729-3-8, being the balance of the costs of the appeal. On 21st November 1913, this application for execution was granted by the Prothonotary and a writ in form No. 55 was directed to issue. I think this application ought to have been brought before the Sitting Judge in Chambers. It appears to be a novel character and so far as has been ascertained from the inquiries which I have directed to be made, no similar order can be traced in the Prothonotary's office-apart from the orders in this suit. Further, under O. 21, R. 17(3), the amendment made in the application ought to have been signed or initialled by the Judge, which in point of fact was not done. On 9th January 1914, there was & similar application for attachment (Ex. F) by the defendants for certain further costs amounting to Rs. 158-14-0. But in this case no sale was asked for. This application was granted by the Prothonotary on 12th January 1914. On 15th January 1914, there was another application (filed on 10th February 1914) for execution (Ex. G) by the defendants for a balance of Rs. 2,628-5-0 in respect of further costs and the order on this application was eventually made by the Prothonotary on 5th March 1914.

4. On this same 10th February 1914, there was an order made by Macleod, J., (Ex. 1) on summons No. 1 of 15th January 1914 (Ex. H), which was summons taken out by Shankar's solicitor against Shankar to show cause why an order angainst Shankar for payment to his solicitor of Rs. 3,658-5-6 for costs should not be passed and why the costs of the summons should not be paid by Shankar. Macleod, J., sitting in Chambers made this summons absolute against the plaintiff and all the members of the caste and further ordered “that the plaintiff and all the members of the Fulmali caste do pay” to Shankar's attorney the said sum of Rs. 3,658-5-6 and the costs of the summons and that order. On this summons the attorney appeared by counsel. Shankar appeared in person. Nobody else appears to have been present on behalf of the other members of the caste, although on this application Shankar's interests were in conflict with those of the other members of the caste for it was to his interest to get them to share his burden.

5. The present defendants contend that the learned Judge had no jurisdiction to make this order: that the summons did not and could not ask for an order against the caste, for it was made under R. 815 of the Bombay High Court Rules and under that rule Shankar and not all the members of the caste would be the client of the solicitor within the meaning of the rule. It was further urged that no unqualified personal order such as this could be made against all the members of the caste who are stated to number some 10,000 or more. On 3rd April 1914, Summons No. 2 (Ex. J.) was taken out by three members of the caste in effect to set aside the attachments made by the Prothonotary on the defendants' application for execution (Exs. E, F and G). The affidavit in support of the application (Ex. J-1) shows that the application was principally based on the allegation that Shankar was not authorized to bring the suit although in para. 21 of the affidavit there is a general allegation that the attachment was illegal. This application came before Batchelor, J. in Chambers on 9th April 1914, and was dismissed with costs. It does not appear on what grounds the application was dismissed but both parties were represented by counsel and I must take it that the parties had all proper opportunities for putting forward any grounds which they claimed that the orders for on attachment were illegal. I can understand the applicants' main allegation being a denial of Shankar's authority to bring Suit No. 559 of 1911, for unless they could establish this they might well have thought that Shankar would have been entitled to an indemnity by the caste on the same lines as an ordinary agent would be entitled to indemnity under Sections 222 or 223 of the Contract Act. Indeed the caste seem to some extent to have recognized their obligation for the fourth resolution on p. 80 of the appeal paper book shows that a caste fund at the Bank was to be applied in payment of the costs of the suit. This caste fund has however long since been exhausted and I do not think this resolution confined Shankar's right of indemnity to this particular fund. If wise counsel had prevailed in the caste the proper course would seem to have been to have paid the liability which Shankar bad incurred on the authority of and on behalf of the caste. However a line of passive resistance and technical objections has in fact been adopted up to and including the trial of the present action, and as the caste stand on their strict legal rights I have to determine what those rights actually are. As regards this summons (Ex. J) of 3rd April 1914 I should add that it was taken out by the applicants in pursuance of a resolution passed at the meeting of the caste on 1st February 1914 as appears from paras. 14; and 15 of the affidavit, J.

6. The caste appear to have accepted the situation under Batchelor, J.'s order. At any rate there was no appeal from his order nor was there any other attempt to set aside the warrants of attachment, nor any attempt to set aside the order of Macleod, J. of 10th February 1914. Accordingly the property was put up for sale and on 17th June 1914, “the right, title and interest of the appellant Shankar and of all others, the members of the Fulmali caste” in the property were sold to one Narayan Narso Ketkar for Rs. 3,900. This appears from the Sheriff's certificate of 1st July 1914, (Ex. L).

7. On 10th July 1914, the present plaintiffs took out summons No. 3 (Ex. M) to set aside the sale under O. 21, R. 89. The evidence of plaintiff 2, which I accept is that he took this step because he thought the property was sold at an undervalue, and that he wished to preserve it for the caste but that in so doing he had no intention of making a gift to the caste of the moneys necessary for him to pay in order to set aside the sale. It appears from pp. 80 and 105 of the appeal paper book that plaintiff 2 was formerly a trustee and treasurer of the caste but I understand from him that he no longer held that office at the date of this application. The application was opposed but on 25th July 1914: an order (Ex. N) was made by Macleod, J. setting aside the sale on payment of Rs. 195 to the purchaser being his compensation under O. 21, R. 89(1)(A), and Rs. 729-3-8 to the judgment-creditors in respect of their attachment (Ex. E); and the balance of the money paid into Court by the present plaintiffs was ordered to be returned to them. This was because the sale was only in respect of the attachment (Ex. E) and consequently the sale could be set aside on payment only of the moneys due under that attachment. However the present plaintiffs realized that it was no good paying off merely that attachment (Ex. E) because the judgment-creditors threatened to proceed, and no doubt would have proceeded, to obtain sales in respect of their other attachments. Accordingly the whole of the attachments were paid off and incidentally Shankar's solicitor was also paid the greater portion of his claim for costs under Macleod J's order of 10th February 1914 (Ex. I). The aggregate of these payments amounts to Rs. 7,234. The particulars of them are contained in (Ex. B) to the plaint and their payment has been proved to my satisfaction.

8. I may here dispose of one small point by saying that plaintiff 1 appears now to have no interest in the matter and that her name should be struck off the record accordingly. She joined originally because she had been a surety for plaintiff 2 in obtaining a loan from one Ganga-Tam, which was applied in payment of the purchaser and the judgment-creditors. Gangaram subsequently sited plaintiff 2 for the moneys so advanced and obtained judgment (Ex. Y) in Suit No. 922 of 1916 and it appears that this judgment has now been satisfied. Plaintiff 1 has therefore no longer any interest in the matter and it is clear that plaintiff 2 in fact provided or became liable for the moneys which he now claims to be reimbursed. Plaintiff 2 being unable to obtain any reimbursement from the caste eventually brought this action. On 4th October 1915. The plaint asks in effect in prayer (a) for a personal decree against the defendants and in prayer (b) for a declaration of charge in respect of the Rs. 7,234 paid by him. At the hearing before me, defendants 11 and 12 were in willing that the plaintiffs should have a charge on their shares. They accordingly made terms and were discharged. The plaintiff for his part abandoned his claim against all the defendants personally. There was subsequently some little controversy as to whether the barred the plaintiff's claim to gat at the immovable property by the enforcement of any personal decree, but in the end it was agreed that the admission was not to prevent the plaintiff from obtaining a decree affecting the shares of the members of the caste in the caste property. It was also admitted by the remaining defendants that they fairly represented the caste and on looking into their qualifications I think this is so.

9. The main question for my consideration is whether on the above facts the plaintiff is entitled to any and if so what relief in respect of the payments he has made. It is clear that the moneys were not paid at the request of the caste. He accordingly cannot sue in what may correspond in India to a Common law action for money paid to another's use. Farther it is not suggested that he took any assignment of the judgment debts which he paid off. He accordingly first put his case on the ground that he had, in fact, paid off a charge on property belonging to himself and others and that he was therefore entitled to stand in the shoes of the encumbrancer. If the alleged charge had been a mortgage instead of an attachment, this might well have been the case: see Butler v. Rice (1), a decision of Warrington, J., which has recently been cited with approval by Batohelorand Shah, JJ., in Tangya Fala v. Trimbak Daga (2). But I do not think the attachment is a charge in that sense and I do not see that even the judgment-creditor and the purchaser between them can be said to have a charge on the property within the principles applied in Butler v. Rice . It is clear for instance that if the judgment-debtor went bankrupt, the judgment-creditor could not claim priority over other creditors as would be the case if the attachment created a charge: see Kristnasawmi Mudaliar v. Official Assignee of Madras (3), Raghunath Das v. Sundar Das Khetri (4) and Jitmand v. Ram chand (5). Alternatively the plaintiff's case was put on Sections 69 and 70 of the Contract Act, and particularly on the latter section which runs as follows:

“70. Where a person lawfully does anything for another person, or delivers anything to him, not intending to do an gratuitously, and such other person enjoys the bane it thereof, the latter is bound to make compensation to the former in respect of, or to restore, the thing so done or delivered.”

10. Now on this S. 70 and apart from any question as to the validity of the warrants for attachment and as to the true position of the caste, I think the plaintiff would be entitled to succeed. It has been urged that this section ought in effect to be confined to cases arising under S. 69, but I respectfully wish to adopt the words of Sir Lawrence Jenkins in Suchand Ghosal v. Balaram Mardana (Mohendra Ghoshal v. Bhuban Mardana) (6) where he says:

“The terms of S. 70 are unquestionably wide, but applied with discretion they enable the, Courts to do substantial justice in cases where it would be difficult to impute to the persons concerned relations actually created by contract”

11. Now in the present case it is clear that what the plaintiff did was lawful. Further he did this, in my opinion, for the caste and he did not intend to do it gratuitously. I also think the other members of the caste have enjoyed the benefit of his deed, for their shares in the caste property have been preserved from a sale at an undervalue. Prima facie, therefore I think the plaintiff is entitled to compensation. It may be that the plaintiff also brings himself under S. 69, but I am consent to deal with the case under S. 70. How far then is the position affected by the warrants of attachment? The first main contention of the defendants is that they have enjoyed no benefit under S. 70, inasmuch as these warrants of attachment were invalid and not binding on the defendants and consequently the sale, even if completed, would have passed nothing to the purchaser. In short the defendants say that the plaintiff paid off something which the caste was under no obligation to pay and that accordingly the plaintiff cannot claim any compensation. In my judgment it is no longer open to the defendants to contest the legality of these orders. In considering whether the caste derived any benefit from the plaintiff's payments, I think one has to consider whether the members of the caste were bound by the attachments between themselves and the judgment-creditors, and that if they were, it 13 immaterial to consider whether as between the caste and some third party, the matter was or was not res judioata from a technical point of view.

12. There has been no appeal from Batchelor, J's., order declining to set aside the attachments (Exs. E, P. and G) and no appeal against Macleod J's., order (Ex. I). I think therefore that the caste were bound by these attachments as between themselves and the judgment-creditors and are not now entitled to say to a third party who relieved them of the consequence of such attachments that in fact they were under no liability to the judgment-creditors. Still less can they say that where the third party is, as here, another member of the caste. Accordingly for the purposes only of the present case and without expressing any individual opinion of my own, I think it must be assumed that the attachments were valid.

13. It was next urged by Mr. B.J Desai in his dear and able argument that S. 70 only conferred a personal right and not any charge. I am inclined to think that he is right in this view, but as the plaintiff's Counsel disclaimed any intention to get priority over other creditors such as would result from a charge, I do not think it necessary to determine the point. It was next urged by the defendants that no personal decree could be made against the caste. Now this point seems to me to be one of considerable difficulty. It raises in effect similar questions to those which have been hotly debated in Trade Union and in other cases in England, and these questions seem to be in some doubt in spite of several appeals to the Court of Appeal or the House of Lords. I notice for instance that is the Annual Practice (England) for 1916 at p. 241 notes to R.S.O, O. 16, R. 9, “Combination of Persons” there seems to be considerable doubt in the mind of the writer of the note, as to what relief can, in fact, be obtained. Mr. Desai boldly argues that you cannot get a personal decree against a body such as this caste and accordingly the plaintiff is without any remedy. A similar argument was advanced in Taff Vale Rly. Co. v. Amalgamated Society of Bailway Servants (7). There in dealing with an argument as to whether an unregistered trade union can be sued, for instance, a co-operative society owning a manufactory which was a nuisance to its neighbours, and in dealing with the argument of Mr. Haldane (as he then was) to the effect that in such a case there was no remedy and that you must pounce upon the individual offender, Lord Macnaghten at p. 439 said:—

“It seems to me that this is a reduction to absurdity. I should be sorry to think that the law was so powerless, and therefore it seems to me that there would be no difficulty in suing a trade union in a proper easel if it be sued in a representative action by persons who fairly and properly represent it.”

14. I think the word “by” means “which is defended by.” It cannot refer to the plaintiffs in that action. Then at p. 443 Lord Lindley, in dealing; with the rule allowing some persons to sue or be sued on behalf of themselves and all others having the same interest, said as follows:

“The principle on which the rule is based forbids its restriction to cases if or which an exact precedent can be found in the reports. The principle is as applicable to new cases as to old, and ought to be applied to the exigencies of modern life as occasion requires.”

15. He then goes on:—

“I have myself no doubt whatever that if the trade union could not be sued in this case in its registered name, some of its members (namely, its Executive Committee) could be sued on behalf of themselves and the other members of the society, and an injunction and judgment for damages could be obtained in a proper case in an action so framed. Further, it is in my opinion equally plain that if the trustees in whom the property of the society is legally vested were added as parties, an order could be made in the same action for the payment by them out of the funds of the society of all damages and costs for which the plaintiff might obtain judgment against the trade union,”

16. And finally on p. 445 he says:—

“Your Lordships have not now to consider how a judgment or order against a trade union in its registered name can be enforced. I see no difficulty about this; but, to avoid misconception, I will add that if a judgment or order in that form is for the payment of money it can, in my opinion, only be enforced against the property of the trade union, and that to reach such property it may be found necessary to sue the trustees.”

17. I may add that the first above observation of Lord Lindley was approved by Buckley L.J in his dissenting judgment in Markt v. Knight Steamships Co. (8). Now it is no doubt true that in certain other English cases representative actions have been held not to lie. For instance, from Mercantile Marine Service Association v. Toms (9) and London Association for Protection of Trade v. Greenlands, Limited (10) and in particular the speech of told Parker at pp. 38-89, it would appear that actions for tort, such as libel, would not lie. Further, in Walker v. Sur (11), where a Common Law action for debt was attempted to be brought against an unincorporated religious society, leave to sue the defendants on behalf of all members of the society was refused. In that case there was no common fund and no trustees, and it was held that execution could only be obtained against the individuals sued. Indeed Counsel for the plaintiff disclaimed that if he got judgment in the action he could enforce it against a person not a party to the action (see p. 936).

18. In Russell v. Amalgamated Society of Carpenters and Joiners (12) it was held that an action for payment out of the funds of the society would not lie against the secretary and trustees, the action not being a representative one. In the case I first mentioned, viz., Markt v. Knight Steamships Co. , Moulton, L.J differing from Buckley, L.J thought that the plaintiff could not sue for himself and all other cargo owners for breach of contract in connexion with the carriage of goods by sea. Thera, after quoting Lord Macnaghten in Bedford (Duke of) v. Ellis (13) viz.

“Given a common interest and a common grievance, a representative suit was in order if the relief sought was in its nature beneficial to all whom the plaintiff proposed to represent.

19. Moulton L.J, in Markt Co.'s case said:

“These words show that where the claim of the plaintiff is for damages the machinery of a representative suit is absolutely inapplicable. The relief that he is seeking is a personal relief, applicable to him alone, and does not benefit in any way the class for whom he purports to be bringing the action.”

20. Then after saying on p. 1039 that the parties represented are not liable for costs although bound by the estoppel created by the decision, the learned; Judge said on p: 1040:

“The proper domain of a representative action is where there are like rights against a common fund, or where a class of people have a community of interest in some subject-matter. Here there is nothing of the kind.”

21. Moulton, L.J in that case was dealing with a representative action where the alleged class were plaintiffs. In the Taff Vale case , their Lordships were dealing with a case where the alleged class or society were defendants. I do not think these observations of Lord Moulton when read an a whole are really inconsistent with what was said by Lord Macnaghten and Lord Lindley in the Taff Yale case .

22. In the present case which I have to deal with we have a common property, namely, the immovable property in question. It is not altogether clear in whom that property is actually vested, but the caste has trustees and as I have already said defendant 13 is a trustee and the remaining defendants fairly represent the caste. Further, if the observations I have just quoted of Lord Moulton at p. 1040 apply where the defendants are the representative body, we have in the present case a “class of people” viz., the caste having a “community of interest in some subject-matter”, viz. the immovable property in question. There are other authorities which Mr. Tyabji's industry has brought to my notice. But no authority on all fours with the present case has been cited to me, and I must decide this case as best as I can from general principles and with the help in particular of the observations of Lord Maonaghten and Lord Lindley which I have quoted. Accordingly after consideration of the case as a whole, I think that I can and that I ought to apply Section 70 of the Contract Act, althouah in the present case the “another parson” mentioned in S. 70 consists of this large caste. I think however, it would be unfair to make a personal decree simpliciter against the members of a large body such as this, for it would enable the plaintiff to select one member to bear a burden which should be shared by all. In fact Mr. Tyabji wisely disclaimed any intention of the plaintiff so doing. On the contrary the plaintiff is willing to obtain compensation out of the caste property and that property alone, and this seems to me to be the fair way in which compensation should be given in the present case provided anything in the nature of a charge is avoided. It may in form be necessary to make a personal decree, but I think this can be obviated by the plaintiff undertaking not to levy execution except against the immovable property in question or the shares of the members of the caste therein. Aa regards the amount for which the plaintiff is claiming compensation, I do not think there is any substantial difference between the various Bums, although only one of the attachments included a direction for sale. If the attachments had not been satisfied there would, no doubt, have been an immediate application for sale and this would only have involved further costs. These observations apply I think, as well to the order obtained by Shankar's solicitor as to the attachments.

23. It was however said that in any event I ought not to allow the five per cent compensation paid to purchaser under O. 21, R. 89, and Dori Lal v. Patti Ram (14) and Mohendra Nath Choshal v. Balaram Mardana were cited in support of that contention. With very great respect to the learned Judges who decided those cases, I think that the plaintiff in the case before me is entitled to compensation in respect of this five per cent. The order I propose to make will in effect be confined to the immovable property. In effect therefore it is different from a case where the defendants have personally to pay the compensation in cash. Here, but for the plaintiff's act, the defendants would have lost the property. If then they get any part of the property back they are not damnified. Consequently I see no injustice in their in effect getting back the balance of the property after payment of the plaintiff's claim. In short this five per cent compensation was all part of the moneys the plaintiff had to pay in effect to redeem the property and I see no substantial difference in principle between it and the costs of the application to set aside the sale and the actual sum for which the application was originally levied. The order therefore which I propose to make is to declare that the second plaintiff is entitled to compensation in the manner hereinafter appearing in respect of the moneys paid by him particulars whereof are contained in Ex. B to the plaint. Then on the second plaintiff by his counsel undertaking not to levy execution under this order except against the immovable property mentioned in the schedule hereto or the shares of the members of the Fulmali caste therein, order that in pursuance of the said declaration the defendants and all other members of the Fulmali caste other than the second plaintiff-do pay to the second plaintiff the sum of Rs. 7,234.

24. The costs as between party and party of plaintiff and defendants other than defendants 11 and 12 (but including in the costs of the plaintiff the costs ordered to be paid by him to defendant 11) to be taxed and paid out of the immovable property in question and so that such costs as between the parties to this action are to be paid in the following order of priority, viz., first, the plaintiff's costs other than those ordered to be paid by him to defendant 11, secondly, the costs of the defendants other than defendants 11 and 12, and thirdly, the costs ordered to be paid by the plaintiff to defendant 11. As regards the costs, section 35 of the cpc, gives me, I think, wider powers than wauld be the case in England. I have under that section powers to determine out of what property the costs shall be paid. As this action ta in effect with reference to the immovable property in question, I think I have the power to direct the costs to be paid out of it. Having then the power I think I ought to exercise it. The case is a difficult one and the caste was entitled to fight it. Under these circumstances if I did not deal with the defendants costs it would probably mean another action to recover them, and this in its turn might result in another action by the defendants to that action for their cost?, and so on ad infinitum. I accordingly answer the formal issues raised in the case as follows:

No. 1.—Whether the plaintiff 2 is entitled to any charge on the caste property and, if so, as regards whose interests therein and for what amount?

A.—No.

No. 2.—Whether the 1 plaintiff 2 is entitled to any other relief in this suit?

A.—Yes, to the extent and for the reasons mentioned in my judgment.

25. There were two other issues originally raised in the case, namely, whether the leave under O. 1, R. 8, in this action should not be revoked, and whether plaintiff 2 in any event was entitled to the relief claimed in prayer (a) of the plaint. Both these issues were subsequently abandoned. The case however proceeded on the footing that the representation order had been amended by confining it to the defendants other than defendants 11 and 12. That order should therefore be treated as being so amended accordingly. In conclusion I wish to add this. I think caution will be required in the future in giving leave under O. 1, R. 8, and in drawing no order for/costs in representative actions. Caution is, I think, necessary an I have already found sitting as chamber Judge, before one makes persons liable for large sums who are not actually parties to a suit nor have personally authorised it. On the other hand the representative should not be an impecunious person as otherwise a caste or similar body might carry on litigation with little fear of adverse consequences, supposing the liability for costs fell only on their impecunious representative and not on themselves. Then as regards the Court's orders the appellate decree and also that of Heaton, J., in the present case have apparently been construed as imposing a personal liability on all the members of the caste. This cannot always be intended. For instance, if a creditor's administration action or a debenture-holder's action was dismissed with costs, I take it that apart from some very special circumstances the person liable for costs would be the plaintiff alone, and not the other creditors or debenture-holders who very possibly might have never even heard of the action. Indeed the dictum I have quoted of Lord Moulton in Markt v. Knight Steamships Co. goes further than this and applies to all representative actions where the class is suing by its representatives. Any difficulty of this sort can, I think, be avoided by naming the representative party if he alone is to bear the costs, viz., by ordering that the plaintiff A or the defendant B do pay the costs. If on the other hand the representative and the party he represents are to bear the costs, then the order can be that the plaintiff A or the defendant B and all other members of the body in question do pay the costs, assuming there is jurisdiction in the particular case to make such an order. In any case where the Court thinks it can properly direct the costs to be paid out of any particular property under section 35 of the cpc, the order will be to that effect accordingly and the difficulty I have mentioned will not arise.

G.P/R.K

26. Suit decreed.

Bhicoobai v. Hariba Raghuji

Structured Summary of the Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Plaintiff's Arguments

Defendants' Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Bhicoobai v. Hariba Raghuji

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