UPENDRA KRISHNA MONDAL IN HIS OWN RIGHT AND AS EXECUTOR TO THE ESTATEOF LATE KALI KRISHNA MANDAL AND GOPI KRISHNA MONDAL Vs. NABA KRISHNA MONDAL

JUDGEMENT

(1.) This is an appeal by two of the defendants in a suit for contribution. There is now no dispute as to the facts. The plaintiffs and the defendants are joint owners of a tank situated within the limits of the calcutta Municipality. The tank was in an insanitary condition and the water was so unwholesome as to be a menace to the health of the locality. The Corporation issued a notice on the common manager of the estate of the plaintiffs and the defendants directing him to fill up the tank. The requisition was ignored, with the result that criminal proceedings were instituted. The common manager then obtained a stay of the criminal proceedings and arranged with the plaintiffs to take steps to fill up the tank. The tank was filled up. The plaintiffs then demanded a proportionate share of the expenses from the defendants, who refused to contribute, with the result that the present suit was instituted, The Courts below have decreed the suit. On the present appeal, the decree of the District Judge has been assailed on two grounds, namely, first, that there was no liability on the part of the defendants to contribute to the expenses incurred by the plaintiffs; and secondly, that the claim is barred by limitation if not in its entirety, at least in respect of a considerable proportion. In our opinion, neither of these contentions is well-founded.

(2.) This is clearly a case within Section 70 of the Indian contract Act, which provides that if a person lawfully does anything for another person, not intending to do so gratuitously, and such other person enjoys the benefit thereof, the latter is bound to make compensation to the former in respect of the thing so done. It has been found by the Courts below that the act, namely, the filling up of the tank, was done lawfully by the plaintiffs. It has also been found, and there can be no doubt upon the point, that the plaintiffs, in the circumstances stated, did not intend to in our the expenses gratuitously. It was in no sense a voluntary act on their p Article It has also been found that the defendants are in enjoyment of the benefit of the act, inasmuch as they are in receipt of rent from the tenants who have been settled on the filled up tank. This clearly is a ease under Section 70, because all the three requisite elements are satisfied; namely, that the thing must be done lawfully, it must not be done gratuitously and the person for whom the act is done must enjoy the benefit thereof. The first ground consequently fails.

(3.) As regards limitation, it has been contended that Article 61 is applicable. That Article governs suits for money payable to the plaintiff for money paid for the defendant; suits of that description must be instituted within three years from the date when the money in paid. The decision in SuKhamoni Chowdhrani v, Ishan Ghunder Roy 25 C. 844 (P.C) : 25 I.A. 95 : 2 C.W.N. 402 : 7 Sar. P.C.J. 294 : 13 Ind. Dec. (N.S.) 550, where money was paid by one of two joint owners of a tenure to save the estate from sale for arrears of revenue and a suit was brought by him for contribution against the other, furnisher an illustration of that class of eases Here, however, the position is entirely different. The liability of the defendant did not arise in successive fragments, as plaintiff paid money to the contractor from day to day; the liability arose when the tank was filled up and the contemplated benefit conferred. In such circumstances, the District Judge has rightly held that Article 120 was applicable, and time ran against the plaintiffs from the date of completion of the work. As the suit has been instituted within six years from that date, it is not barred by limitattion.