GOPESWAR BANERJEE Vs. BRAJA SUNDARI DEBI

JUDGEMENT

(1.) This is Rule which was granted, at the instance of the plaintiff, by my learned brothers Mr. Justice Richardson and Mr. Justice Cuming calling upon the opposite-party to show cause why the judgment and decree of the Small Cause Court Judge of Birbhom complained of in the petition should not be set aside.

(2.) The plaintiff sued to recover a certain sum of money which be alleged he had paid on behalf of a widow called Brojo Sundari Devi, and he claimed to be reimbursed in respect of that sum of money. I take the facts as to which there is no dispute from the judgment of the learned Small Cause Court Judge. The learned Judge said, "Brojo Sundari has 6-annas share in Lot Bakulia as heir of her husband. On account of that share has to pay Rs. 29 odd as road cess in each kist; she defaulted in making payments for kist and her share was advertised for sale under the Public Demands Recovery Act. The plaintiff who is the reversionary heirs of her husband paid the amount and claims to be reimbursed. The question is whether she is entitled to be reimbursed. The plaintiff's Pleader relied upon Section 70 of the Contract Act. The learned Judge held that this case did not come within the provisions of Section 70 of the Contract Act and dismissed the suit. The terms of that section are as follows: "where a person lawfully does anything for another person, or delivers anything to him, 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, or to restore, the thing so done or delivered". There is no doubt that the plaintiff paid the money on behalf of the widow defendant. In my judgment there is also no doubt that the defendant enjoyed the benefit of that payment; and, the sole question which arises in this case is whether the plaintiff can be said to be a person who lawfully made the payment; and, to confine the question even to narrower limits the point really turns upon the meaning of the word "lawfully." It has been held in this Court in the case of Panchcowri Ghosh V/s. Huri Das Jati 31 Ind. Cas. 34 : 25 C.L.J. 325 : 21 C.W.N. 394, which was decided by my learned brother, Mr. Justice Mookerjee, and myself that the word "lawfully" in Section 70 cannot be regarded as mere surplusage, and that the meaning is that a person must have a lawful interest in making the payment, and that it must be considered in each individual case whether the person making the payment had any lawful interest in making it. The passage to which I wish to draw attention is at page 330. Page of 25 C.L.J. -[Ed.]. There I find I said as fellows: The test as regards the meaning of the word lawfully was said down by ray learned brother Mr. Justice Mookerjee in the case of Raja Baikunto Nath Dey Bahadur v. Udoy Chand Maiti 2 C.L.J. 31. The word "lawfully" in Section 70 of the Contract Act is not merely a surplusage. It must be considered in each individual case, whether the person, who made the payment, had any interest in making it; if not, the payment cannot be said to have been made lawfully ". Then I proceeded to say "I expect my learned brother would agree wish me, when I say he meant bad any lawful interest in making it. " My learned brother did not deliver judgment in that case but be said that he entirely agreed. It is interesting to note that in the commentary on the Indian Contract Act by the learned Commentator Sir Frederick Pollock at page 388 (4 Edition) be refers to the matter as follows: "The word lawful in this section is not mere surplusage. It must be considered in each individual case whether the person who made the payment had any lawful interest in making it, if not, the payment cannot be said to have been made lawfully.

(3.) The whole question in this case is whether the reversioner can be said to be a person who had a lawful interest in making this payment. The words of the section are very wide. Our attention was drawn to what was said by the late learned Chief Justice Sir Lawrence Jenkins in the case of Mohendra Ghoshal V/s. Bhuban Mordana [Suchand Ghosal V/s. Balaram Mardana 6 Ind. Cas. 8 O : 33 C. 1 : 14 C.W.N. 945 : 12 C.L.J. 566 where he said: "The terms of Section 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, especially 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". The learned Judge sitting with the learned Chief Justice said that in interpreting this section it is very necessary to remember the almost elementary rule of law that "it is not in every case in which a man has benefited by the money of another that an obligation to re-pay the money arises." The terms of this section, as I have said, are very wide, but in my judgment the Court caught to be careful that it does not extend the meaning of the section and apply it to cases which were not intended to be covered thereby. In my opinion the plaintiff in this case does not come within the terms of this section. The interest which he has is merely that of a reversioner, the interest being expectant upon the death of the widow defendant. It in an interest which the plaintiff may never be able to realize because be may die before the defendant herself.