NANDURI SARADAMBA Vs. PARAKALA PATTABHIRAMAYYA

JUDGEMENT

(1.) One Viyyanna died without issue in November, 1915, leaving a widow, Saradamba, who is the present defendant. Viyyanna.'s sister, Bayamma, upon his death took possession of his estate, which included about six acres of land, on behalf of her minor sons under a will alleged to have been executed in favour of the boys by Viyyanna on the 17 July, 1915. In O.S. No. 885 of 1920 on the file of the Principal District Munsif's Court, Tanuku, the widow sued for recovery of the property together with mesne (profits on the ground that the will was a forgery, and obtained a decree on 6 February, 1922. Of Bayamma's sons, the elder, Lachanna, died during the suit and the younger brother is the present plaintiff. He has brought the suit, out of which this appeal arises, to recover from Viyyanna's estate in the defendant's hands a sum of Rs. 5,000 and odd on the ground that he paid this amount to Viyyanna's creditors while he and his brother were in possession of the estate. The payments alleged are four in number and further particulars of them will be found in the schedule attached to the plaint. The learned Subordinate Judge has found that the payments alleged are true and that, since the plaintiff made them in good faith, he is entitled to be reimbursed from the estate. The defendant appeals against a decree framed in these terms.

(2.) It is necessary in the first instance to decide what is the true foundation for a suit of this character, and in what circumstances, apart from the question of proof of the debts, the plaintiff can succeed. Mr. Varadachari for the plaintiff, now respondent, suggests that every suit for reimbursement of such payments falls into one of three categories: (1) Where the person making the payment may be deemed to represent the estate, as in the case of a trustee or executor de son tort; (2) Where the payment is necessary for the preservation of the property; (3) Where the payment is made on behalf of the defendant and there is an implied contract for reimbursement. Suits of this character are provided for by Secs.69 and 70 of the Contract Act.

(3.) He concedes that class (3) has no application to the present suit, and that class (2) will only apply where the debt is for instance a mortgage decree under which the sale of the property has to be averted. The claims, he argues, fall under class (1), the payments made being recoverable on the ground that the plaintiff made them as representing the estate. In order to make good this position, it is further admitted that the Court must be satisfied of the plaintiff's bona fides, embracing in that term not only his good faith in making the payments in the interests of the estate but also his belief in his own title to the estate. The question first arising therefore is whether that good faith may be presumed or has been proved.