Mukerji, J.:— This appeal arises out of a suit for contribution instituted on the allegation that the Plaintiff and the Defendants who are governed by the Mitakshara law were the lessees of a colliery named the Palashdiha colliery; that the landlords obtained a decree for arrears of rent in respect of the said colliery and brought to sale another colliery named the Lachipur colliery belonging to them in execution of the said decree, that the father of the Appellants, that is to say, the Defendant No. 1 Ashutosh Roy, purchased the same in the name of his son Nagendra Nath Roy, the first Appellant, that the Plaintiff's mother, as guardian of the Plaintiff, in order to save the property deposited Rs. 3,771-0-6 p. with the permission of the Court and had the sale set aside, and that therefore the Plaintiff is entitled to recover the said amount, together with costs of the deposit and interest amounting in all to Rs. 6,081-8 annas 6 pies.

The Defendants Nos. 2 and 3 who are the father and the uncle of the Plaintiff admitted the Plaintiff's claim and the Defendants Nos. 4 to 6 compromised the case with him. The only contesting Defendant was the Defendant No. 1, the father of the present Appellant's. The defence of this Defendant was that the parties were not governed by the Mitakshara law, that the Plaintiff had no share in the property and so was not interested in making the payment, that the Defendants Nos. 2 and 3 really made the payment in the name of the Plaintiff and that the payment was a voluntary one, and consequently the Plaintiff was not entitled to be reimbursed.

The learned Subordinate Judge has granted the Plaintiff a decree as against the Appellants for a half of the amount of Rs. 3,571-0-6 p. and also of Rs. 50, together with interest and costs, the said half representing the Appellant's 8 annas share in the property. He has also passed a decree against the Defendants Nos. 2 and 3 on their own admission for an amount proportionate to their share. Against this decree the present appeal has been preferred.

The first objection urged on behalf of the Appellants is to the effect that the learned Subordinate Judge was wrong in holding that the parties are governed by the Mitakshara law. On this point the evidence is very scanty on either side and what is there on the record is exceedingly conflicting. All that is proved in this case is that the parties are Chhatris by caste, and it follows from this fact that at some time or other they must have migrated from outside Bengal. When this migration took place or where the ancestors of the parties came from, it is not possible to ascertain. It is proved that the parties are related to the Roys of Palashdighi and it is said that the latter claimed to be governed by the Mitakshara law, but it has been shown on the other hand that they failed to establish the claim. An up-country Misra Brahmin is said to be the priest of the family, but his services are availed of only on more important occasions and on other occasions Bengali priests officiate. This is all the evidence and in my opinion it is wholly insufficient for discharging the burden which undoubtedly lies on the Plaintiff, who as well as the Defendants are inhabitants of Bengal, to prove that they are governed by the Mitakshara law.

The Respondent urges that the Appellants are not entitled to re-open and re-agitate the question in view of the fact that when the Respondent put in the money, the pleader for the auction-purchaser Nagendra Nath Roy, who is the Appellant No. 1, stated that he had no instruction to oppose the making of the deposit. To this, however, the answer is that the Appellant Nagendra Nath Roy has been brought on the records of this case, not in his capacity as auction-purchaser but as one of the heirs of Ashutosh Roy who was one of the judgment-debtors in the decree in execution of which the sale took place, and Nagendra Nath Roy was not present in those proceedings in his present capacity as representative of the deceased judgment-debtor and moreover it does not appear that any of the judgment-debtors under the said decree had notice of the deposit that was about to be made. Under the circumstances I am of opinion that the Appellants are not precluded from urging that the parties are not governed by the Mitakshara law. In my judgment the Plaintiff has failed to prove that he had in fact any interest in the property. The learned Subordinate Judge has allowed the Plaintiff's claim under sec. 69 of the Contract Act, on the ground that he had an interest in the payment of the money as he had a share in the property that had been sold, but in this finding of fact I am unable to agree. This however does not dispose of the question as to the applicability of sec. 69, for it has been laid down in a series of cases that where payment is made by a person who puts forward a bonâ fide claim to the property in dispute he is entitled to the protection afforded by sec. 69 of the Contract Act, even though it ultimately transpires, as a result of litigation, that lie had not in fact or in law the interest, for the protection whereof the payment was made [Bindubasini Dasi v. Harendra Lall Roy(1) and Radhamadhab Samonta v. Sashtiram Sen(2)]. This extended view of the expression “interested in the payment of the money” has been adopted in consonance with the exposition of the law embodied in sec. 69 of the Contract Act to the effect that the expression is comprehensive enough to include cases of apprehension of any kind of loss or inconvenience and is not restricted to cases of individuals, who are sure to suffer actual detriment assessable in money value. Sec. 69 of the Indian Contract Act lays down that “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 reimbursed by the other.”

In a suit under this section it is essential that there should be firstly a person who is bound by law to make a certain payment, secondly, another person who is interested in such payment being made, and thirdly, a payment by such last-mentioned person. If these circumstances exist, the fiction of an implied request from the Defendant to the Plaintiff to make the payment may be properly imported into the case so as to bring it within the section and thus the right to reimbursement is created.

A debt for money paid arises where a person has paid money for another under circumstances and upon occasions which make it just and equitable that it should be repaid; a debt or promise to pay is then implied in law, without any actual agreement to that effect. Sir Frederick Pollock in his book on the Indian Contract Act expressed an opinion that sec. 69 of the Act lays down in one respect a wider rule than appears to be supported by any English authority, and that the words “interested in the payment of money which another is bound by law to pay” might include the apprehension of any kind of loss or inconvenience or at any rate of any detriment capable of being assessed in money, while that was not enough in the common law, to found a claim to reimbursement by the person interested, if he makes the payment himself. This view has been judicially adopted by Stanley, C.J, in the case of Tulsa Kunwar v. Jogeswar Prasad(3) and by the Madras High Court in the case of Subramaniah Iyer v. Rungappa Reddi(4) and by this Court in the case of Pankhabati Chaudhurani v. Nani Lall Singh(5).

Now, what are the facts in the present case? The Plaintiff claiming to have a share in the properties sold under the decree of the landlords applied for permission to deposit the decretal dues and compensation for setting aside the sale. There is nothing to indicate that he did not bonâ fide believe at the time that he had such a share. The pleader for the auction-purchaser intimated to the Court that he had no instructions in the matter. The Plaintiff adduced evidence and proved to the satisfaction of the Court that he had the interest he claimed and that he was entitled to have the sale set aside on deposit of the decretal amount and compensation. The Court granted the permission and the Plaintiff thereupon made the deposit and it does not appear that any objection was taken at any subsequent stage to the Plaintiff's assertion of the right that he claimed. Under these circumstances it may fairly be held that the Plaintiff should succeed on the provisions contained in sec. 69 of the Contract Act. This view is in accord with what was said with regard to that section in the case of Sarafatali v. Issan Ali(6).

Assuming however that sec. 69 is not applicable, the question arises as to whether the claim can be supported on the principles contained in sec. 70 of the Contract Act.

This section lays down three circumstances as necessary to found the right of demand, viz., 1st, that the act should be lawfully done for another, 2nd, that it should not be the doer's intention to do it gratuitously, and 3rd, that the other party should enjoy the benefit of it.

Now as regards the first of the above-mentioned three circumstances, the word “lawfully” has been the subject of judicial interpretation in several cases in which some points of diversity are noticeable.

In the case of Damodara Mudaliar v. Secretary of State for India(7), the Government had repaired a tank from which were irrigated lands in the zamindary of the Defendants and also raiyatwari villages held under the government which had been severed from the zamindary and it was not found that there was any request, either express or implied, on the part of the Defendants to the Government to execute the repairs, but it was found that the Defendants knew that the repairs which were necessary for the preservation of the tank were being carried out and did not wish to execute them themselves except as contractors and that they had enjoyed the benefit of the work done. Sir Arthur Collins, C.J, and Shephard, J., pointed out that the statement of the law as contained in this section is derived from the notes to Lampbigh v. Braith Wait(8) and perhaps indirectly from the Roman law, and goes further than what is justified by the English cases. They held in that case that there certainly may be difficulties in applying a rule stated in such wide terms as expressed in sec. 70, that according to the section, it was not essential that the act should have been necessary in the sense that it was done under circumstances of pressing emergency or even that it should have been necessary to be done for the preservation of property, and that the section could therefore be extended to cases in which no question of salvage arises, and further observed thus: “It is not limited to persons standing in particular relations to another, and except in the requirement that the act shall be lawful, no condition is prescribed as to the circumstances under which it shall be done,” and also “it is plain that the section ought not to be read so as to justify the officious interference of one man with the affairs or the property of another, or to impose obligations in respect of services which the person sought to be charged did not wish to have rendered. In the present case there can be no doubt that the Government acted lawfully in repairing the tank. The act was lawful whether done with a view of benefiting all the villages under the tank or the Government villages only, whether or not done with the intention of the charging the zemindars. Having regard to the fact that zemindars knew of the intention to execute the repairs and did not disapprove, we think that if the repairs were done for the zemindars, they were done lawfully for them.” This decision has been considered in several later decisions of the same Court. But its authority in so far as the aforesaid propositions are concerned has remained unchallenged. In the case of Chedi Lal v. Bhagwau Das(9), which was a case of satisfaction of a mortgage decree by a person not subject to any legal obligation thereunder, Straight, J., observed: “But I presume that the legislature intended something when it used the word ‘lawful’ and that it had in contemplation cases in which a person held such a relation to another as either to justify an inference that by some act done for another person the party doing the act was entitled to look for compensation for it to the person for whom it was done. Here there was in my opinion no such relation between the parties as would create any such right or from which it could be reasonably inferred. If the Plaintiffs, as mere volunteers, choose to put their hands into their pockets and to pay a sum of money not for the Defendants but for themselves, that was their own look-out and they cannot now claim the benefit of sec. 70.” In the same case Mahmud, J., remarked: “I need only add that any other view of the law would amount to saying that the effect of sec. 70 of the Contract Act is to enable a total stranger, without any express or implied request on behalf of a debtor, to put himself into the shoes of the creditor by the simple fact of paying the debts due by such debtor. I do not think that the section could have been intended to involve such results.” In the case of Raja Baikuntha Nath Dey Bahadur v. Udai Chand Maiti(10) Mookerjee, J., observed that the word “lawfully” in sec. 70 is not a mere surplusage, and it must be considered in each individual case whether the person who made the payment had any interest in making it; and if not, the payment cannot be said to have been made lawfully. In the case of Panchcouri Ghose v. Haridas Jati(11), Sir Lancelot Sanderson, C.J, with the concurrence of Mookerjee, J., qualified the above proposition by stating that “any interest” must be a “lawful interest,” and held that deposit of money by a person as a mortgagee on the strength of a forged mortgage bond with an ulterior object of subsequently getting hold of the land of the person for whom the payment was made was not a lawful payment within the meaning of sec. 70. In a later case, viz., that of Sarafatali v. Issan Ali, Mookerjee and Walmsley, JJ., held that sec. 70 was applicable to the case of a person who is wrongly made a party to a mortgage suit, as one of the representatives of a mortgagor, and a decree being obtained therein, satisfies the decree in full, and in the suit for contribution which he institutes it is found that he had no interest in the property, and observed that the exposition of the law as laid down in the cases of Raja Baikuntha v. Udai Chand and Panchcouri v. Haridas was not in conflict with the view that was now taken. In the case of Gopeswar Banerjee v. Brojo Sundari Devi*(12), where a Hindu reversioner made a payment to stop a sale under the Public Demands Recovery Act of property then in possession of a Hindu widow to whom he was reversioner, it was held that the payee had no such interest as might make the payment a lawful payment within the meaning of sec. 70. It may perhaps be doubted as to whether in the last-mentioned case too limited a meaning has not been given to the word “lawful.” In some of these cases stress has been laid upon the dictum of the Judicial Committee in the case of Ram Tahal Singh v. Bireswar Lall Sahu(13), which runs in these words: “It is not in every case in which a man has been benefited by the money of another that an obligation to repay that money arises. The question is not to be determined by nice consideration 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.” This dictum it should be remembered was pronounced in a very special case in which the facts were very peculiar and in connexion with a suit which came into existence before the law was codified in the Indian Contract Act.

In the case of Suchand Ghosal v. Balaram Mardana(14), where a tenant whose interest in a holding had not been affected by certain sales, he not having been a party to the decrees, deposited money to set aside the sales, without protest from any party or the Court, Sir Lawrence Jenkins, C.J, observed that as the Plaintiff in making the deposits acted with the approval of the Court, what he did was done lawfully and further observed thus: “The terms of sec. 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. It is, however, specially incumbent on final Courts of fact to be guarded and circumspect in their conclusions and not to countenance acts or payments that are really officious.”

In the present suit, of course, we are not satisfied that the Plaintiff has been able to prove that parties are governed by the Mitakshara law. That however does not matter, for his right to make the deposit was expressly gone into and found in his favour by the Court and he made the deposit under the permission of the Court. The payment made was thus a lawful payment according to the dictum of Sir Lawrence Jenkins, C.J, in the case of Suchand Ghosal v. Balaram Mardana quoted above. It is not a case in which the deposit was allowed to be made without an adjudication of the Plaintiff's right as was the case in Panchcouri v. Haridas (see the observations of Coxe, J., at the bottom of page 327). The position of the Plaintiff in this case is very much like that of a person who obtains a decree declaring his right to deposit the money and then makes the deposit, and subsequently the decree is found to be unfounded or wrongly passed as was the case in Bindubasini Dasi v. Harendra Lall Roy and is entirely different from that of a person who has merely a claim which is subsequently found to be without foundation.

It was not a payment made by a wrongdoer simply for his own purposes as in the case of Binda Koer v. Bhonda Das(15), nor made fraudulently or for the purpose of manufacturing evidence of title to the land as in the cases of Jinnat Ali v. Patch Ali(16), Desai Himut Singji v. Bhavabhai(17) and Bama Sundari v. Adhar Chandra(18), nor a mere voluntary or officious payment as was the case in Yogamlal v. Naina Pillai(19) and Gordhan Lal v. Darbar Shri Surajmalji (20), nor are there any materials on the record upon which it can be said that the payment was made with a sinister object such as was the case in Janki Prosad Singh v. Baldeo Prosad(21).

In my opinion the existence of an interest is generally a test as to the lawful character of a payment, but even if an interest were not shown to exist payments on account of another, if lawfully made, would generally be provided for by sec. 70 of the Act.

As regards the other two requisites of the section it is sufficient to state that there is nothing to indicate that the Plaintiff intended to make the payment gratuitously, but all the circumstances point to his basing made the deposit in order to save the property and to his having intended to look to the Defendants for contribution proportionate to their interest. It has been urged that the Plaintiff has not been able to prove that he had any separate funds. There is however some evidence that, he has his own funds and what is more important is the undisputed fact that the payment was made by the Plaintiff. It has not been contended and on the authorities it cannot be contended that the word “does” in sec. 70 does not include payment of money. As regards the Appellants having enjoyed the benefits of this payment, there can hardly be any question, for there is the fact that Ashutosh Roy in his capacity as judgment-debtor did in fact, get back his share in the properties which had been lost to him by the sale. Beyond the fact that at the sale the property was purchased in the name of the Appellant No. 1 there is nothing upon which it may be held that the deposit was made against the wishes of the judgment-debtors or that they ever repudiated it as having been made against their interest.

This, in my opinion, is a case, in which it may very well be said that the payment was a lawful one, that it was not gratuitous or the result of an officious interference of a person who had no reason to think that he had an interest in making it, and that the Appellants have admittedly enjoyed the benefits of the payment, that it was lawfully made at the time he made it, that he did so in good faith in the belief that he had an interest and not only that, he was also able to satisfy the Court under whose permission he was to act that he had such an interest. The case comes well within the principles laid down in a series of cases in which the right to be reimbursed in similar circumstances has been recognized, of which reference may be made to those of Nalini Krishna Bose v. Monmohon Bose(22), Smith v. Dina Nath(23), Upendra Chandra v. Tara Prasanna(24) and Chandra Sekhar Kar v. Najar Chandra Kundu(25). Some of these cases were decided without reference to sec. 70 of the Contract Act; and in the last-mentioned case it was observed that it is consistent with general principles of equity that those whose funds are used to meet the legitimate demands of others, when the latter have the benefit of such payments, are entitled to ask the latter to pay to the extent of the benefit, that they cannot retain the benefits and plead non-liability, and that where the codified law does not cover the case, the Court should apply the general law, legal and equitable. It is no doubt necessary to be very circumspect in the application of this general principle of justice, equity and good conscience, but the terms of sec. 70 are wide enough to afford ample room for the application of this principle in a fit case. Upon the facts to which I have already referred, the present case seems to me to be one in which it will be just to apply the provisions of that section.

One other argument deserves notice. It has been said that there are suits pending between the Plaintiffs father and uncle, viz., the Defendants Nos. 2 and 3 on the one hand and the Appellants on the other, as to the liabilities of the former in respect of joint family funds in their hands and as the money which the Plaintiff advanced was not his own money, Plaintiff should not be allowed a decree, but that all the liabilities should be adjusted in the said suits. I do not however see any reason why the Plaintiff should not be given a decree in the present case on the strength of the findings of which I have arrived. This decree will not stand in the way of the Appellants showing, if they may, in these suits that the money which the Plaintiff advanced as being his own, really belonged to the joint family, and getting credits therefor in the usual way if they succeed in showing the same.

The result is that while I do not agree in the reasons given by the learned Subordinate Judge I hold that the decree passed by him is substantially correct. The appeal therefore fails and is accordingly dismissed with costs (one set). The hearing fee is assessed at five gold mohurs.

Greaves, J.:— I agree.

S.C.M