1. The facts of this case have been clearly stated in the judgments of the lower Courts. The point for decision is whether the plaintiff-respondent can recover from the defendant-appellant money which he paid to set aside under S. 310-A a sale in execution of a decree upon a mortgage, under the erroneous impression that he had a title in the property. He not only had this erroneous impression but had also instituted a suit upon the basis of that impression. The suit was pending at the time of the deposit and was ultimately decided against him. There can be no doubt, therefore, that the appellant had in fact no interest in the property at the time when he made the deposit. There can also be no doubt that not being in possession he was not immediately interested in the payment of the money due. The highest at which he can put his case is that, erroneously but in good faith believing that he was interested in the payment, he paid money which the defendant was bound by law to pay. Can he recover? As their Lordships of the Judicial Committee said in Ram Tahul Singh v. Biseswar Lall Sahoo(1) the point is one of some nicety. In that case their Lordships took occasion to give a warning that it is not in every case in which a man is benefited by the money of another that an obligation to pay that money arises. The question is not to be determined by nice considerations of what may be fair and proper according to the highest morality. To support such a suit there must be an obligation express or implied to repay. This case was however decided before the passing of the Transfer of Property Act. It is conceded at the Bar that under the English law, as laid down in the case of Falck v. Scottish Imperial Insurance Co.(2), the plaintiff would certainly not be entitled to recover in an action of this nature. The decree of the Court below in favour of the plaintiff was based on the doctrine of salvage. At p. 254, Fry, L.J deals with the doctrine of salvage in such cases in very summary fashion. It is contended that the view expressed in Tulsa Kuar v. Jageshar Prasad(3), that the law of India is far wider than that of England, has been accepted in the Calcutta Court in Paukhabati Chaudhurani v. Nonihal Singh(4). This is so, but we are required to examine the particular facts of this particular case and to satisfy ourselves that Section 69 of the Contract Act is sufficiently wide to cover the plaintiff's demand. In Dakhina Mohan Roy v. Saroda Mohan Roy(5) the Judicial Committee, consisting of Lords Hobhouse and Macnaghten and Sir R. Couch in a judgment delivered by Lord Macnaghten, said:
“Now it seems to their Lordships to be common justice that when a proprietor in good faith pending litigation makes the necessary payments for the preservation of the estate in dispute, and the estate is afterwards adjudged to his opponent he should be recouped what he has so paid by the person who ultimately benefits by the payment…. The claim is in the nature of salvage.”
2. This decision must be read in the light of the fact that the plaintiff was at the time of making the payment de facto proprietor and in the light of the judgment of the Judicial Committee consisting of Lords Hobhouse, Macnaghten and Morris and Sir R. Couch and reported as Abdul Wahid Khan v. Sholukha Bibi(6):
“The proceedings were taken by the defendant for his own benefit, and without any authority express or implied from the plaintiffs and the fact that the result was also a benefit to the plaintiffs does not create any implied contract or give the defendant any equity to be paid.”
3. The doctrine of salvage cannot be invoked for the benefit of a stranger. The case reported as Desi Himatsingji Jorawarsingji v. Bhavabhai Kayabhai(7) is authority for the proposition that a party not in possession but expecting only to gain possession as the result of pending litigation is not entitled to make a payment on behalf of the person lawfully liable. This we conceive to be a correct distinction between two classes of eases. A party in possession is interested in maintaining that possession. A party not in possession and subsequently adjudged to have no title has no interest at all. In every case quoted on the respondent's side the person making the payment was either in possession of a part at list of the property to be salved or had a subsisting charge or contingent interest in it.
4. Mr. Hasan Imam argues that though the respondent had no subsisting interest in the property he had a contingent interest, an interest contingent on his winning his suit in ejectment; a reversioner has nothing more than an interest contingent on his outliving the tenant for life; what distinction can be drawn between a contingency dependent upon the uncertainty of life and a contingency dependent upon the uncertainty of litigation; a reversioner was held in Paukhabati Chaudhurani v. Nonihal Singh to be interested in the payment of money to salve the property of the tenant for life; the appellant should be held to be interested in the payment of money to salve the subject of his litigation.
5. While appreciating the ingenious play upon the word contingent, we must deny that a reversioner's interest is contingent only. It is within the meaning of Section 42 of the Specific Relief Act a title and within every other meaning of the word a live interest. It may die. While it lives it is real. A plaintiff out of possession may be merely a stranger knocking at the gate. It is res judicata that the appellant was a stranger. The fact that he was knocking at the gate gave him only a sentimental interest in the quarrel between the owner and his mortgagee. The interest contemplated in S. 69 is a pecuniary interest.
6. Nor in our view does the payment fall within S. 70. The plaintiff-appellant did not lawfully do anything for the defendant. He paid the money as he thought for himself. It is extremely doubtful whether he made the payment lawfully. He was a stranger and a stranger is not entitled to come in under S. 310-A.
7. We are of opinion that the plaintiff, having no title in the property and no possession in it at the time of the payment of money paid to save the property, was not interested in that payment.
8. The appeal must therefore be decreed and the plaintiff's suit dismissed with costs in all Courts.
V.S/R.K
9. Appeal allowed.