GANAPATHI BHATTA Vs. SANNA SEDU BEARI

JUDGEMENT

(1.) The original suit was by the plaintiff for a sum of Rs. 2,115 and odd which he claimed to have been paid by him on behalf of the defendant. The facts of the case are somewhat complicated but i6 is not necessary to set out more than the following. One Parvathi Amma and C. Lakshmana Rao executed two mortgages, Exs. A and B, in favour of one Sankar Rao. The three items in the present plaint were part of the mortgage property. Item 1 is called Kodipadi arwar property which belonged to Lakshmana Rao, who sold it to Siva Rao, who sold it to the plaintiff. The other items 2 and 3 were brought to sale in execution of a money decree against Lakshmana Rao in favour of the defendant and were purchased by him. The mortgagee sued on his mortgage, got a decree and brought to sale the Kodipadi arwar property and item 2. The plaintiff who had just bought the Kodipadi arwar property from Siva Rao in order to have the sale cancelled deposited along with Siva Rao the sale amount and had the sale cancelled. He now claims contribution from the defendant towards this amount which he had spent. Both the lower Courts had dismissed the suit and the plaintiff appeals.

(2.) The plaintiff in this Court attempted to argue his case first as one for contribution under Section 82, T.P.. Act, but not only was that contention not put forward in the lower Courts which both emphasised that the plaintiff rested his case before them solely on Section 70, Contract Act, but the matters necessary for a claim under Section 82, T.P. Act, have not been put in issue. It appears from the Subordinate Judge's judgment that the properties brought to sale under the mortgage are not the whole of the properties mortagaged. For a suit under Section 82 the plaintiff has to bring on all the properties mortagaged, so that the contribution may be determined rateably. He cannot claim to fix the whole liability for contribution on only a portion of the mortgaged property. He cannot therefore be allowed to raise this contention here.

(3.) It only remains to decide whether the lower Courts have erred in law in holding that the plaintiff has not proved his case under Section 70, Contract Act. Two points arise; First, whether the payment was for the defendant, and secondly, whether it was lawfully made. Both the lower Courts have held that the payment was not for the defendant. This point may be a mixed question of fact and law, but I see no reason to differ from the lower Courts. Primarily it is quite clear that the plaintiff's payment was to save his own property; and secondly, there is no evidence that be paid for the defendant except the insufficient fact that defendant has benefited by the payment. The Madras High Court's view as to what the phrase "for another person"means is more strict than the view taken in Calcutta set out in Suchand Ghosal v. Balaram Mardana [1911] 38 Cal. 1. and Kangal Chandra V/s. Gopi Nath Pal [1920] 24 C.W.N. 1068, The narrowest interpretation, perhaps, is given by Oldfield J, in Viswanadha Vijia Kumar a Rangarao V/s. R.G. Orr [1918] 45 I.C. 786, who says it means that but for the existence of that other's interest the payment would not have been made. In Avudayappa Pillai v. Thandavaraya Pillai the phrase is taken to mean "taking his place as the doer." The interpretation put on the phrase in these cases is narrower than in Krishnachandra Deo Garu V/s. Srinivasa Charyalu [1915] 31 Mad. 235 where it is generally stated that, if a party pays in his own interest, he will not ordinarily be held to have made the payment for another, but whether he did so or not is a question of fact in each case. Certainly the mere fact, that another can benefit is not sufficient to establish that the act was done for his benefit. It is sufficient to say here that there is no fact in the evidence going to show that the sole or dominant motive for the plaintiff's payment was to save defendant's property and therefore the payment cannot be fairly said to have been made for the defendant.