LAKSHMANAN CHETTI Vs. RMARARRMARUNACHALAM CHETTIAR

JUDGEMENT

(1.) The plaintiff sued for contribution Under Section 70, Contract Act, towards the cost of certain repairs which ho executed to the tank which irrigates the wet lands of Manavanagari, a village in the Ramnad District. Of this wet land the plaintiff owns of the whole extent 7/8ths. The petitioner before me is defendant 5 and he, with the other defendants, is a trustee of a kattalai which owns a 1/16 share, the remaining 1/16 share in the land being held by one Muhammad Ibrahimsa. The tank also is the common property of these persons in the same proportions. It had fallen out of repair, so that the supply of water for irrigation had diminished and during the years 1923 to 1925 the plaintiff replaced the old and broached bund by a new one at a cost of between Rs. 5,000 and Rs. 6,000. Towards this sum ho claimed a 1/16 contribution, equal to Rs. 372-7-2, from the trustees of the kattalai. The suit was tried on the small cause side and the learned Temporary Subordinate Judge of Devakottah has given a decree for the amount on the grounds that the work was done for the benefit of the plaintiff and the defendants and that the defendants did not object, but enjoyed the advantages resulting from the expenditure. It is contended before me that this decision is not in accordance with the law and that certain conditions which are necessary before a liability to contribute can be established have not been fulfilled. In the first place, it is not enough that the work should result in benefit to the defendant; it must have been done, in part at least for his benefit, In the second place the defendant must have been in a position, after the execution of the work, to exercise his option whether or not to avail himself of the benefit. I think that an examination of the case law of this Court will show that judicial opinion has now come to hold that in both these respects the very wide language of Section 70, Contract Act, should be read with these qualifications. In Damodara Mudaliar V/s. Secy. of State [1895] 18 Mad. 88 it was pointed out that the question whether the act was done for the defendants was one which must be determined according to the circumstances of the case, for one of two persons having a common interest in property may or may not intend to act for the other in the execution of work upon the property. The fact that the latter was benefited by the work does not necessarily show that it was done for him. The case was accordingly remanded for a finding upon this point. The question of the exercise of an option to enjoy the benefit was not discussed in this case, but in Y. B. Ammani Ammal V/s. Naina Pillai Marakayar [1910] 33 Mad. 15, both the points came under consideration. That case is authority for the view that no presumption arises that work in which one party is interested and which benefits another was done for that other. The second question, whether the defendant should have an opportunity of exercising his option to enjoy the benefit, was also discussed and Sankaran Nair, J., expresses himself strongly in favour of the view that a person can be said to enjoy a benefit Under Section 70 only by accepting the benefit when he has had the option of declining or accepting it.

(2.) A different note was struck in Sri Chandra Deo V/s. Srinivasacharlu [1915] 38 Mad. 235, where Y. B. Ammani Ammal V/s. Naina Pillai Marahayar [1910] 33 Mad. 15 was subjected to some criticizm; but Sadasiva Iyer, J., who was a party to the later case, in Naraina Pai V/s. Appu [1915] 28 I.C. 456, subsequently acknowledged that the trend of decisions was against his view. Again in Raja of Pittapur V/s. Secy of State A.I.R. 1915 Mad. 428, to which Sankaran Nair, J., was a party, the principle was repeated that a person cannot be made to pay for a benefit which he had not had the option of rejecting or accepting. In Viswanatha Vijia Kumara V/s. R. G. Orr [1918] 45 I.C 786, the facts of which very closely resemble those of the present case, both principles are discussed. "The law is not,"it is said: that, when a person does any act for his own benefit, and that act incidentally benefits his neighbour or any other person, that neighbour or other person must pay for the extent of the benefit he derives from the act.

(3.) There was no doubt in that case that the tank had been improved by the repairs effected to it and that the defendants did in fact enjoy the benefit of those repairs. The plaintiffs however owned a preponderating interest, as the plaintiff does here, and it was held to lie upon them to show that they did not make the repairs for themselves and that they did make them for the defendants. In this they failed and the claim was disallowed. The learned Judges found it sufficient to decide the case upon that point, and refer to a difference of judicial opinion on the question whether a person to be charged must have the option of refusing or adopting the benefit. I think however as has been held recently by Madhavan Nair, J. in Sampath Ayyangar V/s. Raja of Venkatagiri that this latter principle may now be regarded as well enough established. Mr. Patanjali Sastri has drawn my attention to a Privy Council case, Luckhinarain Mitter V/s. Khattro Pal Singh Roy [1873] 13 Beng. L.R. 146, which he argues would indicate a much wider construction of Section 70. The matter related to the deposit of rent for the defendants and it was held that because the defendants had the benefit of it they were bound to reimburse the plaintiffs. The case was decided before the present Contract Act came into force and has not been relied on in any of the above-cited cases as defining the scope of Section 70. I do not think that it throws any light upon the special questions arising here.