Straight, J.:— This is a second appeal from a decree of the Judge of Ghazipur, dated the 5th April, 1886. The suit out of which it has arisen was brought by the plaintiffs-respondents in the Court of the Subordinate Judge of Ghazipur against the three defendants-appellants before us, and one Hira Lal, who is not an [236] appellant in this Court. The claim set up by the plaintiffs was presented under the following circumstances, and in order better to understand the facts, it will be convenient here to give a genealogical tree of the family in which the plaintiffs and the three defendants before us were members:—
From the above tree it will be seen that upon the death of Debi Prasad, who left no children behind him, he admittedly being a separated Hindu brother, his widow, Musammat Panno was entitled to life-possession of the property left by him, and upon her decease on the 12th October, 1879, it is admitted that the immediate reversioners thereto were the present defendants-appellants, the three sons of Orai, and Sheobalak, the son of Ganga Prasad, and the father of the plaintiffs in the present suit. It seems that prior to her death, Mussammat Panno, along with Musammat Rukminia, the mother of the plaintiff's, on the 17th September, 1877, executed a hypothecation bond in favour of one Mahabir, in respect of an advance of money made, and as security for that advance had hypothecated a portion of the immoveable property of which she was in life-possession as the widow of Debi Prasad. After the death of Musammat Panno, Mahabir put his hypothecation bond in suit, and he impleaded in that litigation, as I understand it, the three present defendants-appellants, Sheobalak, the father of the three plaintiffs, and Bhagwan and Kanhya, either directly, or some of these persons were brought upon the record as defendants at their own instance. In the result a decree was passed in favour of Mahabir. The three defendants-appellants before us were exempted in person [237] from the execution of the decree, but cast in costs. The defendant Sheobalak was exempted altogether, and as regards the two plaintiffs Bhagwan and Kanhya, it is not very clear what took place with regard to them. But I think this, at least, is certain, that they were in no way made liable under that decree. The effect of that decree was that the property which had been hypothecated by Musammat Panno, was in the ordinary course of things advertised for sale: and the position, looking to the genealogical tree of the parties, at that time was prima facie that, on the one hand, Mahabir was the mortgagee entitled under a decree of Court to enforce his mortgage, while, on the other hand, the three appellants and Sheobalak were the reversioners of the mortgagor rights against whom the decree might be enforced to the extent that the mortgaged property could be sold in invitum to them, unless they paid up the amount. At that time, so I understand the facts to be, Bhagwan and Kanhya and the other two plaintiffs in the present suit, were minors, and upon the 14th March, 1881, on behalf of Bhagwan and Kanhya a sum of Rs. 808-12-6 was paid into the Court executing Mahabir's decree for the purpose of stopping the sale of the mortgaged property, and the mortgage was thereby paid off, the decree was satisfied and the property saved from execution-sale.
On the 17th July, 1881, the defendants Chedi and his brother sold to Hira Lal, the other defendant, the 28 annas share that they had inherited from Musammat Panno in the property mortgaged to Mahabir, and it is in this way that Hira Lal the original second defendant in the suit was introduced into the litigation. He, however, is not before us, and no question arises in this appeal for us to determine in respect of him how and under what circumstances he acquired the property from the first set of defendants, or whether any special protection can be afforded to him as a purchaser without notice.
The present suit which was instituted on the 9th May, 1885, by Bhagwan and Kanhya and their other two brothers under the guardianship of their mother, claims a sum of Rs. 404-6-3, the half of Rs. 808-12-6 paid into Court on the 14th March, 1881, with a [238] sum of Rs. 242-6-0 interest, in all Rs. 646-12-3 principal and interest, as a contribution from the defendants towards the amount which the plaintiffs say they were constrained to pay in order to save the whole property from sale and in which payment they say the defendants-appellants were jointly interested.
But that is not all the plaintiffs ask. They ask further to enforce the claim for the amount of money by sale of the 2 annas 8 pies share of the two mauzas mortgaged to Mahabir Rai which came to the hands of the defendants upon the death of Musammat Panno, upon the allegation that upon equitable principles, ex aequo et bono, they, having discharged the whole of the obligation in respect of the whole property and so saved it from sale, have an equitable charge or lien upon the property in the hands of the defendants for the amount of money that they were compelled to pay in order to stop the execution of the decree.
Without going into all the defences that were set up by the defendants to this suit, it is enough to say, I think, for the purposes of this appeal that it was resisted by them upon the ground that at the date of the payment of the Rs. 808-12-6 on the 14th March, 1881, Sheobalak, the father of the plaintiff, then being alive, they had no interest in the property, and therefore their payment of the money must be regarded as a gratuitous and voluntary payment, which they are not entitled to recover from the defendants.
The Subordinate Judge who tried this case as a Court of first instance came to the conclusion that this defence was satisfactorily established, and he accordizigly dismissed the suit. The learned Judge before whom the case came in appeal, at the instance of the plaintiffs, has taken a different view, and in one portion of his judgment he makes use of the following remarks. He says:— “It is sufficient to remark that Sheobalak was the person who succeeded to the share by inheritance, but he seems to have voluntarily made over his share to his son.” Now as far as I have been able to ascertain from the learned pleaders, it is not very easy to understand precisely what the meaning of the learned Judge here is. I do not know where the learned Judge finds any warrant in the evidence [239] for this inference as to a relinquishment by Sheobalak in favour of his sons, though the statement contained in the first plea taken below, that at the time the execution-sale was threatened, the plaintiffs-appellants were recorded in the revenue records as proprietors of half the property mortgaged, to Mahabir Rai, a fact which does not appear to be disputed, seems to favour the Judge's view. My brother Mahmood having fully considered this case since the last hearing, desires to have further information, mainly upon matters directed, to this point, and is desirous that there should be two or three issues remanded for the purpose of clearing up the questions thus involved in our proper determination of this appeal. Naturally, I should not in the least degree wish, in a case of this description, to prevent further inquiry by the lower appellate Court, which is the proper tribunal for the determination of matters of fact.
At the present, I am not prepared to say that it is quite clear that the plaintiffs were not interested in the property sufficiently to entitle them to call into their and the rule laid down in s. 69 of the Indian Contract Act. Whether, assuming that section or s. 70 to be applicable to their position the further step can be taken of holding that by their payment they acquired a lien on the share of the defendants saved by such payment, is a matter that requires very full and careful consideration, and need not be discussed or determined until we have received a return to the issues which my brother Mahmood proposes, which I have had an opportunity of seeing, and which he will state in the observations he has to make in remanding issues to the lower appellate Court for its consideration and finding.
Having stated the facts in order that when the case comes back, we may have them clearly before us, I entirely concur in the order of remand proposed by my brother Mahmood.
Mahmood, J.:— My learned brother Straight has stated the facts of the case; and, of course, it would be waste of time for me to repeat them. I only wish to add that without expressing any definite opinion as to the extent or nature of the liability which at least two of the plaintiffs were under, in consequence of the decree of the [240] 30th June, and without expressing any opinion as to the question whether the action of the plaintiffs in paying up the whole of that decree on the 14th March, 1881, did not entitle them to maintain a suit such as the present, either for recovery of possession of what they allege was done by them for the benefit of the defendants, and which benefit has been enjoyed by those defendants; and also without saying anything definite as to whether or not such payment of the 14th March, 1881, did entitle the plaintiffs to claim the money due as such compensation by enforcement of a sort of charge on immoveable property; I feel I should not dispose of the case finally upon a purely hypothetical state of facts. The learned Judge of the lower appellate Court in reversing the decree of the Court of first instance, has taken a view of the law as to the accuracy of which I feel myself unable to pass finally any decision without specific information upon the following points of fact. Those points of fact are possibly ascertainable from the record, but we sitting here as Judges of second appeal, are not intended by the Legislature to discharge those functions. Therefore my view is that before passing any judgment upon the legal points raised in the case, which Mr. Amiruddin has with so much ability pressed upon us, we should have definite findings on the following issues:—
1. Did the plaintiff on the 14th March, 1881, own any interest in the property left by the deceased Musammat Panno, either by gift or other transfer from Sheobalak or otherwise?
2. Was Sheobalak on the 14th March, 1881, a member of a joint Hindu family with the present plaintiffs?
3. When did Sheobalak die?
4. Were the plaintiffs or any of them judgment-debtors of the decree of the 30th June, 1881, whether jointly with the defendants or otherwise?
For distinct findings upon these issues, I would remand the case, as I have the approval of my brother Straight to the lower appellate Court,-and upon receipt of the findings ten days will be allowed for objections under s. 567 of the Code.
[241] [On the return of findings upon the issues remanded, the case again came for hearing before Straight and Mahmood, JJ. The parties were represented as before.]
JUDGMENT
Straight, J.:— It is not necessary that I should enter at length into the circumstances of this case, as they were very fully stated by me in my former judgment of the 28th October, 1887. The effect of my then order was that, having regard to certain matters which in the opinion of my brother Mahmood were doubtful or unascertained, I assented to certain issues being settled by him for determination by the lower appellate Court, and that Court has now recorded its findings upon those issues. It is as to these issues and in reference to those findings, that it now becomes my duty finally to deal with this appeal and to dispose of it.
In reference to the questions remanded it has now been determined by the learned Judge, that upon the 14th March, 1881, the date of the alleged payment in respect of the decree of Mahabir Prasad, dated the 30th January, 1880, the two plaintiffs had no interest in the property left by Musammat Panno, either by gift or other transfer from Sheobalak. It has further been found that upon the 14th March, 1881, Sheobalak and the plaintiffs his sons, were members of a joint and undivided Hindu family; that Sheobalak died in 1882, and, what is most material in looking at this case in one of its legal aspects, that the present plaintiffs were not judgment-debtors under the decree of Mahabir Prasad, dated the 13th June, 1880, along with the present defendants. It is in reference to those findings that it becomes my duty to consider whether the original judgment of the learned Judge passed in appeal can be sustained either on the footing that the facts found bring the case within the provision of s. 69 of the Contract Act or within the principle of s. 70 of the same statute. Much of the learned Judge's judgment proceeded upon the construction to be attached to certain provisions of the Transfer of Property Act, and he also referred to a judgment of my own. That ruling, however, has now become more or less obsolete by reason of the circumstance that the principle enunciated [242] in it has been recognized in the Transfer of Property Act, and provided for therein. The applicability of that principle to the present case turns upon this: can it rightly or properly be said that upon the 14th March, 1881, when the 800 and odd rupees were paid by the plaintiffs, they could properly be regarded as mortgagors in the sense that they stood in the shoes of Musammat Panno, and were mortgagors along with the defendants and paid that money as one party of mortgagors for themselves and other mortgagors in such a way as to create an equitable lien upon the property they had saved from sale, which represented the shares of such mortgagors? I may say that the learned Judge's decision rather begs this question, because if it he conceded that these present plaintiffs were mortgagors, much of the difficulty in their way would disppear. But the crux of Mr. Amiruddin's contention is that they never were mortgagors and never stood in the shoes of the mortgagors at the time of the payment. The state of things then stands thus: that the decree which was obtained by Mahabir Prasad was not a decree under or in respect of which any legal obligation or liability rested upon these present plaintiffs, except in so far as they were called upon to pay their own costs in the Courts below, and that no other legal liability or obligation was imposed by that decree upon them. It is true that as regards these present defendants there was a legal liability or obligation, but for the purpose of applying the provisions of s. 69 of the Contract Act it is essential that there should be first 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. In this particular case, as far as I am able to gather from the findings, there was no payment of money which the defendants were bound by law to make in which it can be said that these plaintiffs were interested. Consequently the fiction of an implied request from the defendants to the plaintiffs to make the payment cannot he properly imported into the case so as to bring it under s. 69 of the Contract Act and the right to reimbursement was not created.
Then arises the question whether s. 70 is applicable or not to the facts of the present case. I pointed out to Mr. Simeon that if you [243] could read s. 70 of the Contract Act without the word “lawful” in it, I might go to the full length of the contention set up by him. 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 directly to create or by implication reasonably 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, chose 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 benefits of s. 70. It will be convenient in this connection to refer to what their Lordships of the Privy Council have said in the case of Ram Tuhul Singh v. Bisseswar Lall Sahoo.
It is not in every case in which a man has benefited by the money of another that an obligation to repay that money arises. The question is not to be determined by nice considerations of what may be fair or proper according to the highest morality. To support such a suit there must be an obligation express or implied to repay. It is well settled that there is no such obligation in the case of a voluntary payment by A of B's debt. Still less will the action lie when the money has been paid as here, against the will of the party for whose use it is supposed to have been paid. Stokes v. Lewis. Nor can the case of A be better because he made the payment not ex mero motu, but in the course of a transaction which in one event would have turned out highly profitable to himself and extremely detrimental to the person whose debts the money went to pay.”
Having dealt with those two points above stated, the appeal is disposed, of. I think that the first Court was right in dismissing the claim of the plaintiffs, and that the learned Judge was wrong in the view that he took of the law applicable to the facts of this case.
[244] In my opinion the plaintiffs had no legal right upon which to come into Court and claim recoupment or contribution to the extent of one-half the amount paid. I think the appeal should be decreed, that the judgment of the learned Judge should be set aside and that of the first Court restored. The defendants-appellants are entitled to their costs in all Courts.
Mahmood, J.:— My opinion in this case coincides entirely with the views to which my learned brother has given expression. I need only add that any other view of the law would amount to saying that the effect of s. 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 in vole such results.
Appeal allowed.