T M SUNDARA AIYAR Vs. TMANANTHAPADBHANABA AIYAR

JUDGEMENT

(1.) I have had the advantage of reading the Judgment about to be delivered by my learned brother which sets out the facts, The matter arises under Section 70 of the Indian Contract Act. The respondent in this case does not dispute that he has had the benefit of the 1st plaintiff's action but he says all the expenses would have been incurred even if 1 defendant had not joined as plaintiff. It is true that the District Munsif found generally that some of the items incurred would have had to be paid whether or not 1 defendant was a plaintiff in the suit but the appeal to the lower appellate Court was dismissed on two points of law (1) that the party sought to be made liable must not only have benefited but must have had the opportunity of accepting or rejecting the benefit; and that in this case there is no proof of such option. This is laid down in Raja of Pittapuram V/s. Secretary of State (1914) 16 M.L.T. 375. The second point of law is that when a person paying is himself interested in making the payment he cannot be presumed to have intended to act for the other. That he accepted and intended to accept the benefit is, I think, shown by the fact that he himself successfully applied to be joined in the suit as a plaintiff and by his having drawn out of Court his share of the decree amount. It cannot in my view be said that plaintiff intended to do the act gratuitously as regards 1 defendant in face of the notices plaintiff served upon him, Exhibits B and BI, the effect of which has not been considered by the lower Appellate Court. The notices go to show that plaintiff intended to act for 1 defendant in the suit as well as for himself. I therefore think that respondent has not only been benefited by his actions but has adopted the benefit.

(2.) As to limitation, it is quite clear that Art. 61 as applied by the lower Appellate Court cannot apply. It refers only to money paid for the defendants and as stated by Oldfield, J. in Viswanatha Vijya Kumar a Bangaroo V/s. G.R. Orr (1917) 45 C. 786 at p. 793, that Art. is in applicable to a case such as this where there was at the time of payment no question of any immediate benefit being conferred on defendant by it. It was there held that Art. 120 applied. I am of opinion that this is the proper Art. to apply and if so the suit is in time, as limitation will begin to run from the time 1 defendant derived benefit from the suit, i.e., when he first received a cheque for his share of the money decreed.

(3.) I therefore think that a case is made out for appellants under Section 70 of the Indian Contract Act. There must be a finding as to which if any of the items incurred by the plaintiffs were reasonably necessary for the conduct of the suit and the lower Appellate Court is requested to find accordingly. Finding will be submitted in 6 weeks. 7 days are allowed for filing objections. Fresh evidence may be taken. If it is found any items were reasonably necessary appellant will have a decree for one-fourth of the amount so found. Devadoss, J.