BHAGWATI SARAN SINGH Vs. BAI KISHUNJI

JUDGEMENT

(1.) The defendant is the appellant in this appeal which arises out of an action in which the plaintiff sought to recover the sum of Rs. 1,890-14-6, principal and interest amounting in all to a sum of Rs. 2,468-4-6. This amount was the surplus sale proceeds of a revenue sale of certain property of which the defendant was the recorded proprietor. The property however had been sold to the plaintiff prior to the date upon which the revenue sale was held resulting in the surplus sale proceeds here claimed. The defendant having been paid by the Collector under Section 31, Act 11 of 1859, this action was brought by the plaintiff. It was contended by Mr. Khurshed Husnain appearing on behalf of the defendant- appellant that, as the Collector was bound to pay his client under Section 31, Act 11 of 1859, he was in law entitled to the sum, and that there was nothing either in contract or quasi contract under which the plaintiff could recover. In my judgment the contention cannot be supported. Section 31, Act 11 of 1859, is a section which merely directs payment by the Revenue Officer to a certain person, that person being the person whose name is entered as proprietor and there is nothing in that section which in any way governs the right of a person who is in fact entitled to the surplus sale proceeds recovering them from the person paid by the Collector under the section.

(2.) The learned Judge in the Court below relied upon certain decisions. The first was the decision of this Court in Harihar Misser V/s. Syed Mohamed 1916 Pat 54. The second was the decision of the Calcutta High Court in Bejoy Lal Seal v. Noyunmanjory Dasi 1920 Cal 885, In neither of the cases was the question before us in this appeal decided. In the Calcutta case, in circumstances exactly similar to those which are present in this case, there was no contest as regards the liability of the defendant, the only question for determination being the question of limitation. In the Patna case Roe, J., delivering the judgment of the Court as to whether Art. 62 or Art. 120, Limitation Act, applied, made this observation: It is not a question of the defendant's intention in taking the money. He undoubtedly intended to rob the plaintiff and intended to keep the money for his own use. But this is not the point. The point is, for whose use did the party making the payment intend the money?

(3.) The learned Judge then proceeded to make certain observations as regards the knowledge of the Collector as to whom the money really belonged. In so far as the Judge purported to decide that it was the question of the knowledge of the Collector, I would respectfully disagree. It seems to me that the real test in the case is, not the knowledge of the Collector, not the question as suggested by Mr. Husnain as to whether he had rightfully received the money from the Collector, but to whom the money rightfully belonged. It is not suggested in this case that the money rightfully belonged to the defendant excepting in the sense that under Section 31 of the Act of 1859 the Collector was bound to pay the defendant. That in my opinion in no sense concludes the matter. Mr. Husnain has further advanced the argument that under no specific provision of law is the plaintiff entitled to recover the sum, and his action must fail. In connexion with that argument he has referred us to Section 72, Contract Act, which provides: A person to whom money has been paid, or anything delivered by mistake or under coercion, must repay or return it; and rightfully contends that this section does not apply to the facts of this case. He then advances an argument with which I cannot agree, namely that the cause of action not coming within the provision of Section 72, and, as there is no other definite provision of law, the plaintiff has no cause of action. But in this case the cause of action is for money had and received to the plaintiff s, use and in considering that cause of action we are applying no specific provision of the law of India as there is none, but the rule of justice, equity and good conscience: in other words, in the absence of any rule in India, the Law of England as pointed out by Lord Hobhouse in the case reported in Vol. 14 of Indian Appeals, to which repeated reference has been made by me in this Court. Mr. Husnain in this connexion contends that unless it could be shown that there was a contract or quasi contract, the action must fail. The history of an action for money had and received is discussed in Sinclair V/s. Brougham (1914) AC 398. Lord Haldane, in the course of his speech referring to certain authorities made this statement: In its origin an action of tort, it was soon transformed into an action of contract, becoming afterwards a remedy where there was neither tort nor contract. Based at first only upon an express promise, it was afterwards supported upon an implied promise, and even upon a fictitious promise. Introduced as a special manifestation of the action on the case, it soon acquired the dignity of a distinct form of action, which superseded debt, became concurrent with account, with case upon a bailment, a warrantee and bills of exchange and competed with equity in the case of the essentially equitable quasi contracts growing out of the principle of unjust enrichment.