The facts of this case, as found by the Lower Appellate Court, may be summarised thus: The plaintiff and defendants hold approximately equal areas of land irrigated from the same source the Andapuram tank and the Karuvattar anicut and channel feeding the same. Certain repairs became necessary for the preservation of these irrigation works. The plaintiff prepared an estimate for the repairs, informed the defendants that it was proposed to effect them and called on them for a proportionate contribution. The defendants replied that they had no objection to the plaintiff's carrying out the repairs, but that it was not customary for them to contribute to such repairs and they declined to do so. The plaintiff then effected the repairs; and brought the present suit to recover a proportionate share of the cost from the defendants, basing his claim on Sect. 70 of the Contract Act. The only question is whether this section applies.

That the repairs were lawfully effected is not disputed. That they were for the benefit of the defendents is also not disputed: and I can see no basis for the argument that because the plaintiff also benefited by them the section is inapplicable. Vide Damodara Mudaliar v. Secretary of State for India. That the plaintiff did not intend to effect them gratuitously is found: and there is certainly evidence to support the finding. It only remains to determine whether the defendants enjoyed the benefit of the repairs within the meaning of Sect. 70: and this is the crux of the whole controversy.

The defendants (appellants) rely on the ruling of Sankaran Nair, J., in Yogambal Boyee Ammani Ammal v. Naina Pillai Markayar () that a person cannot be said to have enjoyed a benefit within the meaning of Sect. 70, Contract Act, unless he has had an option of accepting or rejecting it. The plaintiff (respondent) on the other hand draws attention to the views expressed by Miller and Sadasiva Aiyar, JJ., in Gajapathi Kistna Chendra Deo v. Srinivasa Charlu.

I think there can be no question that the judgments in these cases indicate a very substantial difference of opinion between the learned Judges who disposed of them. The wording of Sect. 70 is very wide indeed. It might even be contended that it covered the case of a benefit forced on a man against his will as Long as the act conferring it was not unlawful: though in view of the obligatory nature of the words “is bound to make compensation” that is an interpretation which any Court would be loth to adopt. That some more restricted meaning should be given to it is in fact recognised by both the learned Judges in the later case as well as in Damodara Mudaliar v. Secretary of State for India. Miller, J., in effect, holds (1) that it is not necessary that the beneficiary should exercise the option of accepting or declining the benefit before it is conferred and (2) that if he enjoys it afterwards without objection he must be presumed to accept it. Sadasiva Aiyar, J., is careful to state that “if the benefit is conferred notwithstanding notice of protest of the man benefited that he did not want the benefit proposed to be conferred on him, the act could not be said to have been done on his behalf.” But both learned Judges appear to differ from Sankaran Nair, J., in holding that Sect. 70 does more than reproduce the English law as laid down in Lampliegh v. Braithwaite and that it is the duty of the Courts in India to have regard to the section itself without considering the restrictions imposed by English case law.

In this respect, I am inclined to agree with them: and there can be no doubt that the application of the principles enunciated by either of the learned Judges to the present case would entail the dismissal of the appeal. I find some little difficulty in construing the defendant's letter, Exhibit 6, into an acceptance of the benefit; but it is clear that the defendants enjoyed the benefit without objection and in the view taken by Miller, J. must be held bound to contribute. Sadasiva Iyer, J., takes, as it seems to me, an even stronger view than Miller, J., and his interpretation of the section would undoubtedly cover the present case.

On the other hand there are passages in Sankaran Nair J's. judgment in Yogambal Boyi Ammani Ammal v. Naina Pillai Markayar () which seem to indicate that he would have held the facts of the present case to disclose the exercise by implication of an option to accept the benefit. I refer to the portion of his Judgment in which he considers the effect of the earlier case reported in I. L. R., 18 Mid., 88. The facts of that case are practically indistinguishable from those of the case before us: and the learned Judges, Collins, C J., and Shephard, J., (with whose judgment I respectfully agree) hold Sect. 70 to be applicable, although according to English law the suit would not have been sustainable. Sankaran Nair, J., does not say the decision in that case was wrong but on his own interpretation accepts it as correct. He says:

“He (the person benefited) must have been held liable on the facts of, the case, “that repairs were necessary for the preservation of the tank and there would “have been no water in the tank for irrigation but for such repairs, and when “therefore, the Zamindar elected to use water available only on account of such “repair, he must be taken to have adopted the plaintiff's act and enjoyed the “benefit thereof. It was also found that he was a consenting party.”

The meaning of the latter sentence is somewhat obscure. There is nothing in the judgment in 18 Madras 88, suggestive of consent except such as can be implied from the absence of express objection and the learned Judges distinctly say that actual consent need not be proved. Mr. Justice Sankaran Nair somewhat amplifies the brief statement in the earlier judgment that “the repairs were necessary for the preservation of the tank,” but the amplification is merely explanatory. If repairs are necessary for the preservation of the tank (and that is the specific finding in the present case also), this implies that if they are not executed the tank would become useless and without water. There is in fact specific evidence in the present case that if the work had not been carried out, the anicut would have been washed away and the bund of the tank in danger. I see no reason to doubt that this was what the Lower Courts had in mind in finding the repairs necessary for the preservation of the tank. It would appear then that there is nothing in the exposition of the law by Sankaran Nair, J., which would assist the appellants in the present case; and that being so, 1 do not think we are called upon to refer an abstract question of law to a Full Bench. Our attention has been drawn to a more recent case [Raja of Pittapuram v. Secretary of State] in which the same learned Judge (Sankaran Nair, J.) has again discussed the point: but I do not find any material addition in the later Judgment to what is expressed in the earlier one. I would dismiss this appeal with costs.

Tyabji, J.—The plaintiff and defendants have been found to be co-owners of a tank which the plaintiff has repaired; and the plaintiff has obtained a decree for compensation for part of the expenses of the repairs under Sect. 70 of the Indian Contract Act. The validity of this decree is questioned before us.

The finding of the Lower Appellate Court is comprehensive and couched in the very terms of Sect. 70. In this Court, therefore, the defendants can question the decree in favour of the plaintiff, only on the ground that there was no evidence in support of the finding or of any integral portion of it. It is not questioned that the repair were lawfully done. The argument on behalf of the defendants can, therefore, be conveniently considered under three heads, viz., whether there was any evidence for holding

(1) that the repairs were done by the plaintiff for the defendants,

(2) that the plaintiff did not intend to do the repairs gratuitously, and

(3) that the defendants enjoyed the benefit of the repairs.

It is admitted that each of these three facts must be established by the plaintiff before he can take advantage of Sect. 70.

With reference to the first two questions it is clear that the plaintiff was also interested in the repairs. In such a case, as observed in Yogambal Boyee Ammani Ammal v. Naina Pillai Markayar, the Courts will not, from the mere fact that the defendants have benefited by the plaintiff's act, presume that the work was done for the defendants or that it was done in expectation of payment; if the plaintiff has done the work for himself, he would clearly not except any payment. The documents in the present case, however, leave no doubt that the repairs were done as much for the defendants as for the plaintiff (See Damodara Mudaliar v. Secretary of State for India; and that there was no intention on the part of the plaintiff to do the repairs gratuitously.

With reference to the third circumstance I have mentioned above, though there is conflict of opinion, no exception has been taken to the following remark in 18 Mad., 88 at p. 93.

“It is plain that the section ought not to be so read as to justify the officious “interference of one man with the affairs or property of another, or to impose “obligations in respect of services which the person sought to be charged did not “wish to have rendered.”

The difference of opinion arises in the effort to read the section so as not to justify such interference and to prevent such obligations being imposed.

In Damodara Mudaliar v. Secretary of State for India attention was drawn to the necessary elements of fact involved in the section, and to the distinction between cases where the plaintiff himself has an interest in doing the act of which the defendant is alleged to have enjoyed the benefit, and where the plaintiff has no such interest. But in Yogambal Boyee Ammani Ammal v. Naina Pillai Markayar, Sankaran Nair, J., with whom Munro, J., agreed went further and held that “a person can be said to enjoy the benefit under the section only by accepting a benefit when he has the option of declining.” (P. 20).

These words strictly considered seem to me to put too great a strain upon the words “such other person enjoys the benefit thereof.” It may be that “enjoying” implies something more than what happens if a benefit results without any adoption, on the part of “such other person”—any act by which he takes advantage of the benefit. If this is a correct interpretation of the word “enjoy,” then the third requirement of the section to which I have referred above may be analysed into two component parts:—

(a) that the act of the plaintiff is calculated to have results which may confer a benefit on the defendant; and (b) that the defendant has availed himself of such beneficial results. Yet I can see no warrant for introducing the necessity for an option of declining or accepting the benefit. It may be that the defendants have availed themselves of the results of the plaintiff's acts, because the defendants could not do otherwise; they would still be said to have enjoyed the benefit. It seems to me that the view alluded to by Miller, J., in Gajapathi Kistna Chendra Deo v. Srinivasa Charlu is the correct one and the attitude of the defendant towards the results of the act which are alleged to have been beneficial to him (including the circumstance whether the defendant had the option of accepting or declining the alleged benefits of the act) can only be relevant to the question whether the plaintiff did actually confer a benefit upon the defendant. “It would seem,” says Mr. justice Miller, “to be a sufficient answer to the plaintiff's claim if the defendant declined the benefit which it was proposed to thrust upon him. He may be taken to be the best Judge of what is beneficial to himself in ordinary cases and could not in such cases be said to have enjoyed a benefit which was no benefit. On this ground or on the ground that in such cases the payment is not really made for the defendant may be rested the cases which decide that, unless the defendant is willing to accept the benefit, the payment will not be recoverable under the section.

Hence, where some act is done by the plaintiff (1) under such circumstances that the defendant has had option of either availing himself of the results of that act, or of remaining in the same position in which he would been if the act had not been done, and where having such option, the defendant has chosen the former alternative, the proof of the exercise of such option satisfies the requirements of Sect. 70 of the Indian Contract Act; the defendant cannot then deny that he “enjoyed” the results of the plaintiff's acts or that the results were “benefits” so far as he was concerned. But (2) in the converse case, where the defendant has not had any choice, so that he could not have prevented the plaintiff doing the act, nor avoided (even if he had desired it) being affected by its results, the plaintiff must establish that as a matter of fact his act resulted in a benefit to the defendant, Finally (3), when the defenddant has actually (as suggested by Sadasiva Atyar, J., in the same case at p. 439) given notice of protest, then not only would the act not be said to be on his behalf, but it may well be inferred that it was not for his benefit. In this view this fact whether or not there was an option to the defendant to enjoy the benefit of the plaintiff's act would supply strong indications, as to whether the act really brought any benefit to the defendant or whether he is sought to be made liable to pay compensation for some act in which he was not interested and whether the plaintiff seeks repayment of expenses alleged to be incurred on behalf of the defendant which the defendant would not have considered worth incurring if he had been consulted.

The absence of any option to the defendant may place a heavier burden on the plaintiff to prove that his act really resulted in a benefit to the defendant. But the absence of such an option cannot, it seems to me, by itself prevent the result being considered a benefit to the defendant or prevent the defendant being said to have enjoyed the benefit, should it be found that the results reached the defendant and were beneficial to him.

The repairs in the present case were urgently necessary for the very preservation of the tank. Prior to undertaking the repairs, the plaintiff informed the defendants of his desire to do so, and after stating that the defendants were bound to contribute to the expenses, informed them that they would be required to contribute. In reply, the defendants answered that they had no objection to such repairs being carried out by the plaintiff; and added “To the question whether we have any objection to contribute our share of the charge of the said repairs, our answer is that we never used to contribute the said share and that there is no reason to pay the same.”

It was open to the plaintiff's counsel to argue as he did that the defendants' present plea is inconsistent with the attitude then taken up by them. The defendants now say that the alleged benefit of the repairs is thrust on them; they then said that they were entitled to enjoy the benefit as a matter of right without contributing to the expenses, and implied that they would so enjoy it.

Moreover, there is a finding that the repairs were urgently necessary for the tank and that but for the repairs the tank was in danger of breaching and of over flooding the lands of the defendants; it is not denied that the repairs were carried out after notice to the defendants, and after they had been informed that they would have to contribute to the expenses; it is not alleged that there was any repudiation by the defendants, or anything to show that they honestly did what may reasonably be expected to be done, if they had really intended to renounce the benefit of the repairs, rather than contribute to the expenses, or if they had intended to continue in the same position in which they would have been but for the repairs. It seems to me to be clear, therefore, that the defendants cannot deny either that the repairs have resulted beneficially to them or that they have availed themselves of those results. Though the plaintiff did not specifically call upon the defendents to declare whether they would or would not enjoy the benefit of the repairs, the defendants left no doubt on the point that they did intend to enjoy the benefit.

In my opinion, therefore, the finding that the defendants enjoyed the benefit of the plaintiff's act within the terms of Sect. 70 of the Indian Contract Act was justified by the evidence and the appeal should be dismissed with costs.

Appeal dismissed.