P V MUTHUSWAMI AYYAR Vs. AVELAMMAL

JUDGEMENT

(1.) The petitioner became the owner of a half share in a well which had long been in disuse. There were two other co-sharers, each of whom had a quarter share in the well. The plaintiff was in a position to make the necessary expenditure to put the well into repair; and he sent notice to the other two sharers asking them to contribute towards the repair of the well, so that they would all be able to use it and with its water raise a second crop on the land?which they had not been able to do hitherto. One of the sharers whose share was subsequently acquired by the petitioner said that he was not interested in the well because his land was heavily mortgaged. The respondent said that she did not propose doing anything in the matter; but that if the plaintiff chose to do it she had no objection. The petitioner sent demands to her for payment of contribution before the work was started; but she did not reply. Later on, while the work was being executed, he sent further notices to which she replied that she could not contribute. The petitioner thereupon completed the work and filed this suit for contribution from the respondent, claiming under Section 70 of the Contract, Act. The lower Court held that although the respondent stood to benefit by the work and that the petitioner did not intend to do the work gratuitously, yet he found that it could not be said that the petitioner did the work" for the respondent." He therefore dismissed the suit.

(2.) The argument of the learned District Munsiff is supported by some observations in Viswanatha Vijaya Kumara Bangaroo V/s. R.G. Orr (1917) 45 I.C.786, to this effect: Section 70 of the Contract Act does not apply to cases where a person does an act for his own benefit and that act incidentally benefits his neighbour or any other person. In such cases the latter need not pay for the extent of the benefit derived by him from the act. A person claiming contribution from another under Section 70 of the Contract Act must prove that he did some act for the latter. An act cannot be described as done by one person for another, unless it can be shown that, but for the existence of that other's interest, it would not have been done. It was held that the repairs had been executed by the plaintiffs in that case mainly for their own benefit, although the defendants were also benefited by them. The suit was, however, dismissed, it being held that although the defendants had benefited, they were not liable under Section 70 of the Contract Act. It seems to me that this is no longer good law in view of the Full Bench decision of this Court in Srirama Raja V/s. Secretary of State for India . The learned Judges were there considering a claim by the Government from certain Shrotriamdars, who equally with the Government had been enjoying water from a certain tank which the Government had repaired after notice to them. The Shrotriamdars had replied that they had no objection to the execution of the work by the Government; but they objected to making any payment towards it as they had never done so in the past. The learned Judges considered the various Madras cases dealing with the subject and approved entirely of the decision in Saptharishi Reddiar V/s. Secretary of State for India , a similar case of a claim by the Government to a contribution for the repair of a tank. Both in Srirama Raja V/s. Secretary of State for India , and Saptharishi Reddiar V/s. Secretary of State for India , the learned Judges had no doubt that the Government had repaired the tank for the other parties using its water as well as for itself. The learned advocate for the respondent seeks to distinguish between these cases and the present case by pointing out that the Government has certain responsibilities in the matter of keeping tanks in repair and ensuring that all persons entitled to water from the tank shall not be deprived of it by reason of the tank's falling into disrepair. These decisions were not, however, based on the special responsibility of the Secretary of State. The argument accepted was equally applicable to any claim by a co-owner for contribution towards the expenses of the repair of a common irrigation source. Applying that principle to the present case, this well being a joint source of irrigation of the plaintiff and the defendant, the plaintiff would be entitled to sue for contribution from the defendant provided that the other ingredients of Section 70 are to be found.

(3.) In order that the plaintiff should succeed in the claim under Section 70 of the Contract Act he would have to prove (1) that he had repaired the well for the defendant; (2) that he did not intend to do so gratuitously; and (3) that the defendant enjoys the benefit of the repair. I have already held that the petitioner did the work for the respondent. It is clear that he did not do so gratuitously. The only other question for consideration is whether the defendant enjoys the benefit of the work done. In his deposition the plaintiff said- I have provided means for irrigation of the defendant's land with the well water. The baling, fixture I use could be employed by her once in four days. Defendant has not yet used the well water for irrigating the land. I told Velammal's (defendant s) lessees that they could take water to her land if she pays her contribution towards the repairs. The defendants and her lessees are therefore unable at present to take any water from the well, firstly because a picotah and other apparatus would be necessary before they could do so, and also because the plaintiff is not willing and has not been willing to allow the defendant and her lessees to use the water unless they contribute. It cannot be said that the defendant is enjoying the water, merely because she could enjoy it if she chose to spend more money and to pay the contribution that the plaintiff is demanding. It is only after she or her lessees utilise the water from the well that they would be liable under Section 70 of the Contract Act.