SRI SRI SRI GAJAPATHI KISTNA CHENDRA DEO GURU, PROPRIETOR OF NANDIGAM ESTATE BEING MINOR UNDER THE COURT OF WARDS BY HIS NEXT FRIEND THE COLLECTOR OF GANJAM Vs. PSRINIVASA CHARLU (DIED) LROF THE LATE DEWAN BAHADUR PANANTHA CHARLU

JUDGEMENT

(1.) The District Judge decided the case on the 2nd issue only and has construed Exhibit A as meaning that the plaintiff s father madea gift of the village free of land tax to the donee until the donor obtained separate registration of the village by the Collector and apportionment of the peishcush. The condition in the gift is " we should get the village sub-divided in your name (we being the Zemindar), you should pay to the Government the peishcush fixed thereupon according to the said sub-division." The Zemindar made the gift in 1890 and died in 1898 and during all that time the donee remained in possession of the village and paid no portion of the land tax. The conduct of the Zemindar, which may be looked to aid in construing the document, supports the construction which the District Judge has put upon it, and that is that so long as the village remained an unseparated part of the zemindar, the zemindar was to pay the land-tax. But he had the option of obtaining from the Collector separate register and that may well imply an obligation on the donee to concur in his application to the Collector for that purpose. Then in 1901, the Manager of the estate under the Court of Wards, on behalf of the plaintiff applied for separate registration. Notices were published in accordance with the provisions of the Madras Act I of 1876 in the District Gazette and on the 19th of September 1903 the Collector fixed the appropriate peishcush at Rs. 206-5-3 and on that date notice thereof was sent to the donee calling upon him to state if he was willing to agree to the apportionment. The donee made no answer to several letters calling upon him to reply, and in 1904, the Collector for want of his concurrence refused to order the separate registry. Subsequently in September 1904, the donee consented to separate registry and it was made finally in 1905. Now construing the document as the District Judge has done, that the donee was under no obligation to pay the land tax before the sub-division of the village, the 19th September 1903 is the first date so far as I can see on which any obligation can be laid upon the defendant. There is nothing in the evidence to show that the peishcush could have been fixed earlier by the Collector unless he had been applied earlier by the Court of Wards. There is nothing to suggest that the delay was due in any way, to any action of the defendant or to any contention of his, that peishcush ought not to be apportioned. Consequently on the terms of the gift the 19th of September 1903 is the earliest date from which the inability to pay peishcush could commence. On that date or a day or two later, the donee received a notice from the Collector that the peishcush had been fixed and that the sub-division has been concluded subject to his consent. It may be, therefore, that from that date the sub-division contemplated by the deed of gift was complete and that the donee was bound to pay the amount fixed in which case all subsequent payments made by the plaintiff may be recoverable under Section 69 of the Indian Contract Act. But it is not necessary for us to decide the case on that Section It may be safer to rely, as the plaintiff also relies in his plaint upon Section 70. From the date on which the peishcush was fixed it seems clear that the peishcush paid by the plaintiff to the amount of Rs. 206-5-3 was made for the donee. No doubt, it is possible that if the plaintiff had not paid it, his own interest might have suffered though it is probable that the Collector in as much as the Court of Wards was the payer, might have come down upon the given village for any arrears which the Court of Wards might assent to be due in respect of that village. That, however, which I need not go into, it is undoubtedly possible that the plaintiff s interest might have suffered but that I think will not, in the circumstances make the payment less a payment for the defendant.

(2.) The amount of the peishcush which had been fixed may be payable by the defendant and it was paid as such and as being due upon that property. Therefore though it might have been in the interest of the plaintiff to pay it, it does not seem to me that there is any reason to say that it was not on that ground a payment made for the defendant. It is perfectly clear, of course that once the subdivision was effected, the amount paid by the plaintiff could not have been intended to be left unrecovered, that the payment was not intended to be made gratuitously.

(3.) Then the only other point, that has to be considered in deciding whether the section is applicable in its language seems to me did the defendant enjoy the benefit thereof ? He undoubtedly did enjoy the benefit thereof; he never objected to accepting the benefit; he remained in possession of the village until the permanent registration was effected; and he never showed that he did not wish the payment to be made. On the contrary, he finally accepted the sub-division and the apportionment. It is true, no doubt, that, in his written statement, he suggests that the amount was excessive but so far as the evidence shows he does not seem to have said so to the Collector or to the plaintiff or to any one before the suit was filed. Consequently, I think, that he clearly accepted the benefit he enjoyed the land and let the plaintiff pay the land tax which he must have known was being paid for him. It does not seem to me that anything further is required in order to make the amount recoverable under the Section We have been referred to some cases as showing that this section does not materially depart from the English law with regard to voluntary payments. I do not know that I need discuss them. We of course proceed on the language of the section as it stands, unless we are bound by some decision to put a particular interpretation on it. What is necessary under the section ? It is necessary no doubt that the plaintiff should prove first, that he is doing something lawful when he is making the payment. That provision had been interpreted in various cases, but here there is no question about the lawfulness of the payment. Then he will have to show that he did not intend to pay gratuitously. That is also clear here. He will have then to show that what he did was done for the defendant, and it clearly may be very difficult for him to show that in some cases especially in cases where his own interest is manifestly predominant. If he pay in his own interest, he will not ordinarily be held to /have made the payment for the defendant, but whether he did so or not it seems to me is a question of fact in each case. Then finally the plaintiff will have to show that what he did, did actually confer a benefit upon the defendant and that the defendant enjoyed the benefit. It would seem to be a sufficient answer to the plaintiff s claim if the defendant declined the benefit which it was proposed to thrust upon him. He may be taken to be the best judge of what is beneficial to himself in ordinary cases and could not in such cases be said to have enjoyed a benefit which was no benefit. On this ground or on the ground that in such cases the payment is not really made for the defendant may be rested the cases which decide that, unless the defendant is willing to accept the benefit, the payment will not be recoverable under the Section No case has, I think, been cited during the arguments. There is a case Narayanaswami Nayudu v. Sri Raja Vellanki Srinivasa Jagannadha Row (1909) 1 I.L.R. 33 M. 189, in which it is pointed out that, at any rate, the law of Section 70 of the Indian Contract Act is certainly not narrower than the English Law, and though in that case we held that we could imply a request to pay, I do not know that there is anything in Section 70 which requires us to deal with the matters as one of an implied contract; but there, I think that from the condition of the gift accepted by the defendant we might well imply an undertaking that anything that might be paid on his behalf after his sub-division (which he is bound to facilitate) would be repaid by him.