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and his sons have obtained a decree for recovery of their shares
from the purchaser it has been held that a second suit may be



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140 THE OUDH CASEK. [Vol. VIL

Bajtt Ram mhrntained by the mortgagee against the sons for recovery of
Sbeopai the bnlance of the debt which remains unsatisfied after the sale
^^"^ * of the father's interest — Dharam Sinr/h v. Anffan Lai (1) and
LaHiman Das y. Dallu (2). The learned advocate for the
tlefendant contends that the decisions in these eases were
erroneous and that they are the logical outcome of the detsision
in the case of BJuxwani Prasad v. Kalltt (3) which this Courl
in Shea Rattan v. Raja Jagmohan Singh. (4) and Lai Bahadur
Singh v. Matadin Singh (5) has refused to follow. I express
no opinion as to the correctness of the two Allahabad decisions
'upon which the plaintiff relies. Such cases could hardly arise
in this province where neither before nor after a sale or fore^
closure can sons in a joint family obtain a decree for proteciiob
or recovery of their shares except upon showing that the debt
is not binding upon them and no case like the present should
now arise within the jurisdiction of the Allahabad High Court
—see Debt Singh v. Jai Ram (6) the principle of which- wotiH
no doubt be applied where foreclosure has taken place instead
of a sale.

• -
There is very little doubt that the present case would Bot
have arisen if the plaintifiEhad appealed against the Mutisif^i
order under section 244. That order was clearly wrong. The
Munsif had no power to alter the foreclosure decree. H^
should have made it absolute as it stood. The defendant
might then have sued for recovery of his share but his suH
would have been dismissed upon the finding that the debt was
one which he was bound to pay.

Even if the Allahabad cases were correctly decided I
cannot admit that they cover the present case. In those case^
there was an ascertained or ascertainable balance remaining
due after the sale of the father's interest. In the present casij
the foreclosure of the father's interest was made absolute on



(1)


l.L. R., 21 AM^SOl.


(2) I. L. R., 22 An.. 394.


(3)


I. L. R., 17 All.. 537.


C4) 1.0. C. 63.


CB)


1.0. ens.


C6; I. L. R., 26 AU., 214.



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Vol, Vn.] IHE OUDH CASfiS; wi

account of non-payment of the vrhole debt. Section 87 of the ^i*
Transfer of Property Act provides that tipon the passing of Sheopal
an order absolute for foreclosure the debt secured by the
mortgage shall be deemed to be discharged. A mortgage
cannot be foreclosed piece-meal.

It is unnecessary to consider whether in a case of this kind
the foreclosure of the father's interest could be opened and
the plaintiff given a decree for foreclosure of the father's
and the son's interests in case of the non-payment of the entire
debt No such relief was claimed by the plaintiff nor was the
possibility of such a decree being passed suggested « until one oE
us in the course of the argument referred to some English cases
in which foreclosure had been opened.

The plaintiff is entirely to blame for what has happened.
He ought to have appealed against the Munsif's order under
section 244.

In my judgment the present suit was rightly dismissed
by the lower appellate Court and I would dismiss this appeal
with costs.

Maclbod, A. J. C— I agree. >



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14i THE OUDH OASBflf, [Vol. VIL

MISCELLANBOUS APPLICATJOir; No. 108-OF 190*.



Bifwe Mr. WAU.



1904. Thaeur Baldbo Bux and otbors (AfpUcanU) v. TBAMxm

April 20, Balbhaddab Singh (Opposite Party).



Partition case^ transfer ofr^Jurisdiation of Court ofjudieiaj
Commissioner — Code of Civil Procedure^ «, fS — Revent^e Courts
jurisdiction of— Act III of 190} (N.- W. f* and Oudh Land
Revenue Act) ss. 291 Mnd 192.



The Coort of the Judicial Commiaitoner can ejceroifle no jorladiction under
s. 26 of the Code of Civil Procedure i^ roipect of partition cases to which
as. 191 and 192 of Act III of 1901 applj.



For Applicants : — Messrs F. 0. O'Jfeill and J. S. Misra.

For Opposite Party : — B. JBasdeo ijal and B. Suximi DayaU

Wells, 0. J. C. — ^Tbis \% %n appUontion under section 25
of the Code of Civil Prooednrt for transfer of a partition case
from the Court of Mnnshi Abdul Qadir, Depnty Collector, to
some otber Court. It appeajfi tbat in tbis partition case, an
objection bas b^^en made on tbe ground of title under section
111 of tbe N.-W. P. and Oadb Land Revenue Act. Tbe deci-
sion of tbe Deputy ColIectMr was appealed to tbis Court, and
certain issues baving beet) fixcnl^^tbe case was remanded io
bim. Being dissatisfied witb some of bis proceedings, tbe
presopt tipplicants applied to tbe Deputy Commissioner of Sita-
pur, under section 192 of Act III of 1901, to transfer tbe case
to some otber compet#pt revenue officer. Tbe application
wa* refused and the applicants have now come to this Court
with a similar request. Tbe application is therefore virtually
an appeal from tbe order of the Collector.

I do not think it necessary to go into the merits of the
case, ^ after careful reflection, I am of opinion that, in this



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Vol. \U.]



Tflfi OtJDfi CASES.



Ui



matter, this Court can exerotse no jarisdidtion under section
25 of ihe Code of Civil PrOcednre. Sections 191 and 192
of Act III of 1901 prescribe Who maj transfer cases from
one Revenue Court to another and although, by a special
provision of that Act in section 112, an appeal against
the Collector's or Assistant Collector's decision of a ques-
tion of title lies to the Judicial Commissioner, yet I am
not prepared to hold that the Collector or Assistant Collector
becomes subordinate to the Judicial Commissioner for purposes
of a. 25 of the Code of Civil Procedure. That section provides
tiiat the High Court may transfer a case from one Court sub-
ordinate to it to another Court subordinate to it. Even
admitting that, ov^ing to an appeal lying to this Court, the
Court of Munshi Abdul Qadir becomes, in a sort of way, sub-
ordinate to this Court, yet the other Revenue Courts of the
Sitapur District, which are not in any way seized of this case,
do not become subordinate to this Court, and there is therefore
ireally no Court subordinate to this Court to which the case can
be transferred. The Land Revenue Act clearly indicates that
the transfer should be made by the revenue authorities and
the applicants recognised this by first going to the Deputy
Commissioner. If they are dissatisfied with the order of that
officer ihey should apply to the Commissioner or the Board*
I dismiss this applicatioQ with costs.



Tbaknf
Baldeo Bui
and otben

Tbakut

Balbbaddtf

SiBgh.



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144 THE.OUDH CASES. [Vol. VII.

SECTION 623 APPLICATION, No. 207 OF 1908. *



B^ore Mr.l Scott.



1904. Eakdhai Gib and others (Vtfendants) v. Bhaqwakt.Ghi

Mabch 7. ^ ^^„ (Plaintifi).



Small Cauee Court tuU, trial ofj \ai regular iuU wkhaut
returning of plaint for presentation to proper Court^^ Appeal from
Muneife decree in suit inetihtted m SmoUl Cause Court suit asut
tried as regular suit — Act IX of 1887 ^ s» 27.



A suit was inatitoted in the Mangifa Court as a Court of Small Causes.
The Munsif before deliveriag judgment formed the opinion that the suit was
one excluded from the jurisdiotfon of a Court of Small Causes and directed that
it be remoTed from the register of Small Cause suite and entered in the register
of r^fular suits. He then tried the case as a r^pilar suit and decreed the daim.
ffeldt that the suit was tried as a Small Cause Court suit and jxnd& section
27 of Act IZ of 1887 no appeal lay from the decree of the.lf unsif.



Fob ApPELLAirrs : — ^Mr. J. N. Dutt and B. Bhairon Pershad.

Fob BHSPOKD]»rr Na 2 :— -Sheikh Famand Alu

Scott, J. C. — This is an application for revbion of the
order of the Subordinate Judge of Kheri, dismissing an appeal
from the decree of the Munsif of Kheri, on the ground that no
■ appeal lay from the decree.

The suit was instituted in the Munsif's Court as a Court
of Small Causes and is now admitted to be one cognizable
by a Court of Small Causes. The Munsif first recorded
the evidence as such a judge, but, before delivering judgment
he formed the opinion that the suit was one excluded from the
jurisdiction of a Court of Small Causes. He did not however
return the plaint for presentation to the proper Court but

* For revision of the order of Munsbi Ram Pcrsbad, Subordinate Judge,
Khcri, datcil lltb September 1903, confirming the decree of Munsbi Muhammad
Ismail, Munbif, Khcri, dated 17tb July 1903.



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IVOL. VII.



THE OUDH CASES.



145



directed that it be removed from the register of Small Cause
suits and entered in the register of regular suits. He then
tried the case as a regular suit and passed a decree in favour
of ihe plaintiff. As the suit was instituted in a Court of Small
Causes and was not returned for presentation to another Court,
whatever nay lutve been the procedure adapted at the trial,
it must be held that it was tried as a Small Cause Court suit
and under section 27 of Act IX of 1887 no appeal lay from the
decree passed by the Munsif. Had the suit been instituted and
tried as a regular suit, an appeal could have been preferred
from any decree which might have been passed and the appel-
late Court, if not required by a party to submit the record to
this Conrt, could have set aside the decree and directed that
the plaint be returned for presentation to the proper Court or
could have submitted the record to this Court under section
646 B of the Code of Civil Procedure for buch order in the
4case as the Court mi^ht think fit.

This application is dismissed with costs*



Eandljai Qir

aud others

r,

BbagwantOIr

andotbcrs.



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146 THE OUDfl CASES. [Vol. VU.

SECOND CIVIL APPEAL, No. 414 OF 1902. *



Before Mr. Chamier.



1904. Najjtj Khan and another (Plaintiffs) v. Ram Bau fi?€-

April 5. fendant).



Reimhursement of person paying money due by anoth e r
Justice^ 'equity and good conscience — Indian Contract Act,
sections 69 and 70.



The defendant was the first mortgagee of a Tillage. Under the terms of
the mortgage he was entitled to possession and he was in fact in possession
when the plaintiffs, who w&ce puisne mortgagees of half of the village and who
wished to prove that they were in possesslpn paid into the Tabsil certain mms
of money on account of the land-revenue on the village, for which the defendant
was responsible and the defendant was given the benefit of .the payments
made by the plaintifEs. The plaintiffs sued the defendant for recovery of the
amount of their payments.

Seld^ that under the circumstances neither according to ** the rules of
justice, equity and good conscience," nor under the provisions of section 69 or
section 70 of the Indian Contract Act were the plaintiffs entitled to recover
the amount of their payments.



For Appellants : — M. MuTiammad Nasim.
For Respondent : — B. Basudeo Lai.

Chamier, A. J. C. — ^The defendant was the first mort-
gagee of the village to which this suit relates. Under the
terms of the mortgage he was entitled to possession and he
was in fact in possession when the plaintiffs, who were puisne
mortgagees of half of the village, paid into the Tahsil sums
aggregating Rs. 600-9-8 on account of the land-revenue on
the village, the first payment being made on November 22nd
1898 and the last on January 15th 1900. The defendant who
was responsible for the payment of the revenue was given the

* Against the decree of Babu Kali Prasanno Singh, Subordinate Judge,
Bara Banki, dated 26th July 1902, reversing the decree of Syed Kuiban
Ali, Munsif, Sancbighat, dated loth February 1902.



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Vol. VII.] THE OUDH CASES.. 147

benefit of the payments made by the plaintiffs. The question Najju Eban
for decision is whether the plaintiffs are entitled to recover r.

the amount of their payments from the defendant. ^^^^ ^*"'

I may here mention that the plaintiffs said in their plaint
that the sums paid by them into the Tahsil were paid out of
monies recovered by them from the tenants. There is no
proper proof of this allegation and I do not think the fact if
proved would advance the plaintiffs' case as it is obvious that
the plaintiffs had no right to collect rents from the tenants.
I may also mention that at a very late sfege of the proceedings
in the first Court the plaintiffs obtained permission to amend
their plaint by adding a statement that they had refunded to
the tenants the sums which they had collected from them.
This allegation also does not appear to advance the plaintiffs'
case for it is not suggested that the refund was made under
any sort of compulsion and I agree with the lower appellate
Court that the. amendment should not have been allowed at the
stage at which it was made.

The first Court decreed the claim> but the lower appellate
Court dismissed the suit being of opinion that the plaintiffs
had no right of suit against the defendant inasmuch as they
had no right to collect the rents and had no business to pay
any pari of the revenue. In second appeal it is contended
that the plaintiffs are entitled to recover the amotmt claimed on
equitable grounds and also under the express provisions of
sections 69 and 70 of the Contract Act.

I can discover no equity in favour of the plaintiffs. They
were evidently trying to establish a right to possession or
to prove that they were actually in possession. On their
own showing they interfered with the collection of rents h&viagt
no right to do so and no doubt caused annoyance to the defend-
ant. Ordinarily if a man unasked and in the absence of »
contract obliging him pays money for another, he can**
not recover it (see the judgment of Bowen L. J. in
Falcke y. Scottish Imperial Insurance Company (1)). There

O) 34 Ch. Div. 234



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148 TJIE OUDH CASES. [Yoi. VII

Najju Khan j^; no principle of law which requires a man to contribute to ail

V. outlay merely because be has derived a material benefit from it

IRuabon Steam Ship Company v. The London Assurrance (!)]*•

If therefore the plaintiffs are entitled to recover, it must be

under section 69 or 70 of the Contract Act.

I have examined all the cases which I could find upon the
construction of the sections relied upon by the plaintiffs. They
show that some Courts have attempted to draw a line betweenr
cases which fall within section 69, and cases which fall withio
section 70, that other Courts have been content to hold that
a case falls within one or other or both sections, and that others
feeling that both sections enforce an equitable principle have
referred to neither but have decided professedly according to
** the niles of justice, equity and good conscience."

To clear the ground I put aside those cases upon these
sections in which the person paying the money was at the time
in possession of property and the question was whether he
was entitled as against the true owner to the recovery of sums
spent by him on or in connection with the property such as
land-revenue, cesses, rent, freight, landing charges etc. To this
class belong the cases of Tlluck Chand v. SottdarrUni Dosi (2),
Binda Kuar v. Bhonda Das (3), tiie decisions in which are
not easily reconciled with the decisions in Dakhina Mohan r.
Saroda Mohan (4) and The Peruvian Guano Company v.
Dreyfus Brothers (5). Such cases are distinguishable from
? the present case because the plaintiff in the present case was

not in possession of the property in respect of which he paid
the money.

Another class of cases upon these sections also distinguish-
able from the present case are those in which the person paying
the moneys sought to be recovered though not in possession
of, had r^ason to believe that he was entitled to the property
in respect of which he made the payment and the payment

(1) L. R. 1900, A pp. Cases p. 6. (2) I. L. R., 4 Calc, 666.

(3) 1. L. B., 7 All., 660 (4) I. L. R.. 21 Calc, 142.

(6) L. R. 1892 App. Cases 166.



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Bam Bali,



V^OL. VII.l THE OUDH CASES. 149

was made to save the ptoperty, e. g. Nohin Krishna Bose v. Moh N^jn Kbaa
Mohun Bose (1), Bama Sundari Dasi v. Adhar Chunder (2)^ _^ v^
(so far as section 69 of the Contract Act is concerned) Bindu
b<ishini Dassi v. Harendra Lai (3^ and Radha Madhub v. Sasti
Ram (4). In the present case the plaintifiEs cannot have sup-*
posed that they were entitled to the property, nor were the
payments made to save it.

The decisions in snch cases as Jthili Chand v. Ramhtshen
Singh (5) and Jugdeo Narain v. Raja Singh (6) are irrelevant
also because in them the payments were found to have been
made under compnlsion and nothing of the kind has been
suggested here.

It was contended for the plaintiffs that they were *' in-'
terested" within the meaning of section 69 of the Contract Act
in the payment of the revenue because they were puisne mort-
gagees and if the revenue had not been paid the village would
have been sold i free of incumbrances. For the defendant it
was urged that the interest of the plaintiffs was too remote and
it was pointed out with truth that there is no evidence that the
payments were made when the revenue was in arrears or that
the authorities were at the time contemplating any steps for
the realization of the revenue. In my opinion the contention
of the plaintiffs fails to give effect to the word ** therefore '' in
section 69. This word appears to me to require that the pay-
ment shall be made on account of the interest of the payer as
where that interest is threatened. The authorities seem to sup-
port this view, see Smith v. Dinonath Mookerji (7) and to
some extent also Besai Bimatsingji v. Bhavabhai (8) and Gar^
dhanlal v. Darhar Shri Surajmalji (9). In the present
case it was not shown that the plaintiffs paid the money because
they were interested in saving the property, on the contrary

(1) 1. L. B., 7 Calc^ 673. (2) I. L. B., 23 Calc, 28

(3) I. L. B., 26 Calc, 806. (4) I. L. B., 26 Calc, 826.

(6) I. L. B., 7 Calc, 648 (6) 1. L. B., 26 Calc, 636.

(7) I. L. B., 12 Calc, 213 at p. 216 (8) 1. L. B., 4 Bom. 643.

(9) 1. L. B.. 26 Bom. 604.



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Ram. Bali.



150 THE OUDH CASEfcJ. LVol. YII-

Najja Khan they were, it seems, tr jing to make eyidenee for ibemselTefi as
and another j^ ^.j^^ ^^^ ^^ j ^ R^ 4 Bombay jnst.montioiied.

Examples of what has been held to be a sufficient ^* in-
terest" for the purposes of section 69 are to be found in several
of the cases already cited and in Vaikuntam v. Kallapiran (1)
and another case between the same parties in Indian Law
Report, 26 Madras, 497 where the plaintifiE was held to be in-
terested in the payment of moniea required for the marriage of
his daughter Fhich the defendant was; bound to pay. In
Citdi Lai v. Shapioan DaA (2) itiwas suggested (Uiat no case
could fall within section 69 unless there was room for the legal
fiction of implied request. If that is a correct view, as to
which I have some doubt, the present case certainly does not fall
within section 69. In my judgment section 69 does not apply
k> this ease because even if the plaintiffii bad some interest in
the paynent of the revenue H b not shown thafe ihey paid the
amount now claimed in consequence of that interest.

It is Qoxioeded tbiA section 70 appUea to tbepaymedMi oE
mo«ey und H was so held in SmUh v^ Diiwnaih iihokerjei (3)
h9A does the section. q)ply to Hke facta of this case? In
Chdi Lai v, Biagwan jEAw (2) it was suggested that aeetioa
70 d Oeefaraet Act appHes only where the rektions betweea
the pejTSOQ paying the meiiey and the pmson enjoying the
benefit of the payment were such as ito justify the inference
that the former was entitled to lode to the latter for compena-
ation which is certainly not the case here, but the suggestion
was apparently based upon the judgment of their Lordships of
the Privy Council in Ram Tuhul Singh v. BUesumr Lall
Sahoo (4) a case which was not governed by the Contract Act.
It has been suggested that section 70 marks a departure from
English law (see Damodaralv. Secretary of State (5)). If so, the
judgment in the case of Ram TuhtU v. BUeswur Lall Sahoo (4)

(1) I. L. R., 23 Mad., 512 (2) I. L. R., 11 AU., 234.

(3) I, L. R., 12 Calc, 213. (4) I. L. R., 2 1. A., 131

(6) 1. L. R.. 8 Mad 88.



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Vol. VII.] THE OUDH CASES. 151

may not be a safe guide now. Whether or not the section ^*jf ° ^^*"

goes further than the English law it is plain that some v,

meaning must be attached to the word "lawfully'' and l^«»Bali.

that it is only when the bwd has been paid lawfully that

it can be recovered. In Gardhan lad v. Darbar Shri Suraj^

malji (1) it was said that a payment made had not been made

lawfully within the meaning of s. 70 because the payer had no

authority from the defendants and was under no legal obliga*

tion to pay the money. So in the present case the payment

was made without authority from the defendant and the

plaintifiEs were under no legal obligation to pay the money. In

Damodara v. Secretary of State (2) stress was laid on the word

" lawfully " and it was, rightly as I think, pointed out that

the section ought not to be read so as to justify the officious

interference of one man with the affairs or property of another

or to impose obligations in respect of services which the person

sought to be charged did not wish to have rendered. In the

present case the payments were made in pursuance of an

improper attempt to establish a right or to prove the possession

of the plaintiffs. It is impossible to hold that the payments

were made lawfully. In my opinion s. 70 was never intended

to apply to such a case as this. Upon the death of the owner

of immovable property it often baj^ens that persons who

neither have nor believe that they have any shadow of a right

begin to collect the rents, pay the revenue, and in o4her ways

attempt to prove that they are in possession so as to obtain

mutation of names from the revenue authorities. If I were

to apply section 70 to the present case I should be bound to hold

that such persons could recover the amount of such payments

from the person lawfully entitled to the property. This would

be a positive encouragement to trespassers. I do not think

that this section was intended to produce such a result.

In my opinion the decree of the lower appellate Court

was correct. This ap peal is dismissed -with costs.

(1) I. L. B., 26 Bom. 604 (2) I. L. B., 18 Mad. 88



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152 THE OUDH CASES. [Vol. VII.

FIRST CIVIL APPEAL, No. 84 OF 1904. ♦



B^ore Mr, Ruitomji and Mr. Chamier.



1904.

May 16. Thakur Jawahib Singh (Defendant) v. Thakur Balwaht

Singh (Plaintiff).



Court Fees Act^ section 7 clause ix and section 17 — Court"
fee in a suit to redeem property subject to more titan one deed of
mortgage^ how to he computed — Redemption^ suit for.



The respondent sned the appellant for redemption of certain property in
respect oi which four docnments were alleged to have been executed, namely
<1) a deed dated December I6th 1892 whereby the property was mortgaged
for Bs. 21,000, (2) a deed dated Aagust 8th 1893 stated therein to be a deed of
further charge for Bs. 642 (the executant promised to pay this sum with
interest along with the sum secured by the first deed and agreed that the
property should not be redeemed except upon payment of the further adTonce
and interest thereon as well as the sum secured by the first deed and it was
stipulated that all the conditions of the first deed should be deemed to apply
to this deed.also), (3) a deed dated August 7th 1894 and (4) a deed dated
October 1st 1894, both being simihir in all respects to the second deed except
that they were not stated to be deeds of further charge. The respondent paid
on his plaint a court-fee which was computed upon the sum total of ^hc
■ principal amounts of the four deeds*

HM^ that the court-fee upon a plaint in a suit for redemption or for
foreclosure should be calculated upon the sum total of the principal money
payable under the deeds by which those monies are secured, and that therefore
the fee paid upon the plaint in the present case was sufficient under clause ix
of section 7 of the Court Fees Act.

Beld further, that section 17 of the Court Fees Act applies only where
there are two or more distinct causes of action.



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