JUDGMENT Iqbal Ahmad, J.
1. This appeal arises out of a suit brought by one Pt. Angne Lal for the recovery of a sum of Rs. 4490 with pendente lite and future interest. Pt. Angne Lal's claim was dismissed by the Courts below and he preferred the present appeal. He died during the pendency of the appeal and his legal representatives were brought upon the record as appellants. The plaintiff based his claim in the Courts below on Section 69, Contract Act. It appears from the judgments of the Courts below that there was some discussion in those Courts of the question as to whether the principle of contribution which is embodied in Section 82, T.P. Act, had any application to the case, but in the present appeal the plaintiff's right to the amount claimed has been based solely and wholly on the provisions, of Section 69, Contract Act.
2. The facts that led to the suit are as follows: On 3rd January 1919, one Jagat Sahai executed two mortgage deeds in favour of Har Dayal and others for a total sum of Rs. 11,500 mortgaging his zamindari in four villages. Two of these villages were Gahloi and Thanpur Nigoh. The names of the remaining two villages are immaterial. In the year 1923 Jagat Sahai sold the two villages named above to Sidh Gopal and Madan Gopal, defendants 1 and 2, for a sum of Rs. 20,000 and left with the vendees Rs. 14,550 for the satisfaction of the two mortgages of 1919. As between Jagat Sahai and the vendees the covenant was that the vendees will satisfy the two mortgages and thus the two villages which remained with Jagat Sahai after the execution of the sale deed would be free from encumbrance.
3. The plaintiff's case was that though the sale deed was executed in favour of defendants 1 and 2 those defendants were, as a matter of fact, the plaintiff's benamidars so far as village Nigoh was concerned and that the price of village Nigoh was a sum of Rs. 2000 which was paid in cash by the plaintiff to Jagat Sahai at the time of the execution of the sale deed. The plaintiff's case further was that contemporaneously with the execution of the sale deed there was an agreement between him (the plaintiff) and defendants 1 and 2 (the ostensible vendees) to the effect that defendants 1 and 2 would satisfy the two mortgage deeds of the year 1919 and that the plaintiff will get village Nigoh free from those encumbarances. All these allegations of the plaintiff have been accepted by the lower Appellate Court. The consideration of the present appeal must therefore be approached on the assumption that defendants 1 and 2 had purchased village Gahloi for Rs. 18,000 and out of that amount they retained in their hands a sum of Rs. 14,550 for the redemption of the two mortgages of 1919 and that by virtue of an agreement between the plaintiff and defendants 1 and 2 village Nigoh was to be free from all encumbrances. In other words, defendants 1 and 2 were under a contractual liability to the plaintiff to redeem the encumbrances mentioned above so that the plaintiff may get village Nigoh free from all encumbrances.
4. Defendants 1 and 2 admittedly did not pay the amount that they had retained in their hands for the satisfaction of the two mortgages. In the year 1924, Mt. Har Devi and Mt. Hansmukhi, defendants 3 and 4 brought a suit for pre-emption against defendants 1 and 2 with respect to village Gahloi. This suit terminated by a compromise entered into between defendants 1 and 2 on the one hand and defendants 3 and 4 on the other. In accordance with the compromise decree the claim of defendants 3 and 4 was decreed conditional on the payment by them of a sum of Rs. 17,118. Out of this amount a sum of Rs. 15,350 was left with defendants 3 and 4 for the satisfaction of the two mortgages of 1919 and the balance of Rs. 1768 was paid by defendants 3 and 4 to defendants 1 and 2. Defendants 3 and 4 in their turn failed to pay up the mortgages of 1919 with the result that the mortgagees brought a suit for sale of all the four villages mortgaged and obtained a decree for sale for a sum of Rs. 20,341. Jagat Sahai, the mortgagor, the present plaintiff and defendants 1 and 2 as well as defendants 3 and 4 were impleaded as defendants to the suit and the decree directed that village Gahloi was to be sold first and thereafter village Nigoh and in the event of anything remaining due to the mortgagee decree-holders after the sale of these two villages the remaining two villages that were left with the mortgagor were to be sold. In accordance with the directions contained in the decree Gahloi was sold first and fetched a sum of Rupees 17,200. After the sale of Gahloi a sum of Rs. 4700 remained due to the mortgagee decree-holders and then they put village Nigoh to sale. This village was purchased by one Banwari Lal at the auction sale for a sum of Rs. 3805. It was the plaintiff's case-and this case has also been accepted by the lower Appellate Court-that the plaintiff had, with a view to save his village from sale, asked Banwari Lal, a friend of his, to bid at the auction sale and to purchase Nigoh. In other words Banwari Lal was a mere benamidar for the plaintiff.
5. The present suit was for recovery of the sum of Rs. 3805 together with interest. The plaintiff alleged that defendants 1 to 4 were under a contractual obligation to satisfy the mortgages of 1919 and, as they failed to do so, village Nigoh was put to sale, and then the plaintiff, with a view to save that village from sale, had to pay a sum of Rs. 3805. The plaintiff therefore claimed a decree for that amount. Two sets of written statements, one by defendants 1 and 2 and the other by defendants 3 and 4, were filed. Both the sets of defendants denied that there was any agreement at the time of the sale of 1923 for the satisfaction of the two mortgages out of the sale consideration of Gahloi alone. This contention of the defendants was accepted by the trial Court and that Court accordingly dismissed the suit. The lower Appellate Court however, as stated above, held that the agreement about Nigoh being sold to the plaintiff free from encumbrances was proved, but that Court held that Section 69, Contract Act, had no application to the case and dismissed the suit on the ground that the respondents were not personally liable to the mortgagees for the money that was left with them. The property only in their hands was liable.
6. In our judgment the decision of the lower Appellate Court cannot be supported. Section 69, Contract Act, runs as follows:
A person who is interested in the payment of money which another is bound by law to pay, and who therefore pays it, is entitled to be reimbursed by the other.
7. In the present case it is not and cannot be disputed that the sum of Rs. 3805 was paid by the plaintiff with a view to save village Nigoh. Further, as the plaintiff was the purchaser of that village it cannot be doubted that he was interested in making the payment in order to prevent village Nigoh from passing out of his possession. The only question that then remains is whether the defendants or either of them were bound by law to pay the amount that the plaintiff had to pay. If they were, Section 69 would govern the case. On the other hand if they were not bound by law to pay the amount, Section 69 will have no application to the case. In Rasappa Pillai v. Doraiswami Reddiar (1925 12 AIR Mad 1041, it was held that "bound by law" does not mean "bound by law to the plaintiff" but that the defendant at the suit of any person might be compelled to pay." Further, it is clear that the liability for which payment may be made under this Section need not be statutory. A contractual liability by the defendant to pay the amount which the plaintiff with a view to protect his interest has to pay would entitle the plaintiff to be reimbursed by the defendant for the amount paid by him.
8. In the present case Sidh Gopal and Madan Gopal, defendants 1 and 2, had entered into an agreement with the plaintiff for satisfying the two mortgages of 1919 and had, out of the sale consideration of Gahloi, retained in their hands sufficient amount for the satisfaction of those mortgages. This agreement was binding as between the plaintiff on the one hand and defendants 1 and 2 on the other. If defendants 3 and 4 had not brought the pre-emption suit, and the mortgagees had obtained a decree for sale and the plaintiff had to pay some amount with a view to protect village Nigoh from sale, the plaintiff would clearly have been entitled to a decree against defendants 1 and 2 for the recovery of the amount paid by him, for the simple reason that defendants 1 and 2 were under a contractual obligation to the plaintiff to satisfy the two mortgages. Section 69 in that case would have governed the rights of the parties. But slight complication was occasioned by the fact of the institution of the pre-emption suit by defendants 3 and 4. By the decree in the pre-emption suit, defendants 3 and 4 were substituted for defendants 1 and 2. The decree in that suit was, as stated above, based on a compromise and according to the terms of the compromise defendants 3 and 4 were under a contractual obligation to defendants 1 and 2 to satisfy the mortgages of 1919. This contract about the satisfaction of the two mortgages by defendants 3 and 4 could clearly have been enforced by defendants 1 and 2 if they were the real purchasers of village Nigoh. It however so happened that defendants 1 and 2 were benamidars for the plaintiff so far as village Nigoh was concerned. The plaintiff in the present suit is seeking to enforce a contract entered into between defendants 3 and 4 on the one hand and the plaintiff's benamidars on the other. If the benamidars could enforce the contract-as they undoubtedly could-the plaintiff was equally entitled to enforce that contract.
9. The matter may be looked at in another way. Defendants 1 and 2 were under a contractual obligation to the plaintiff to redeem the mortgages of 1919. By the preemption decree defendants 3 and 4 were substituted for defendants 1 and 2. It follows that as between the plaintiff on the one hand and defendants 3 and 4 on the other the latter were under an obligation to redeem the mortgages of 1919 and this obligation they failed to discharge. This failure on the part of defendants 3 and 4 compelled the plaintiff to pay the sum of Rs. 3805 when village Nigoh was put to sale. The plaintiff therefore was in view of Section 69, Contract Act, entitled to be reimbursed by defendants 3 and 4. The plaintiff was therefore entitled to a decree for the amount claimed as against defendants 3 and 4. The contractual liability that rested on the shoulders of defendants 1 and 2 passed on to defendants 3 and 4 when the pre-emption suit was decreed. Defendants 1 and 2 therefore no longer remained liable to pay the mortgages of 1919. The plaintiff was therefore not entitled to any relief against them. As however the original agreement was between the plaintiff and defendants 1 and 2 it was necessary for the plaintiff to implead those defendants in the present suit.
10. One of the pre-emptors, viz., Hansmukhi defendant 4, died during the pendency of the appeal in the lower Appellate Court and her sons Shriman Narain, Shri Niwas and Shri Govind were brought on the record in her place. Before the institution of the suit Hansmukhi had executed a deed of surrender in favour of her sons. In that deed it was recited that Hansmukhi was a mere benamidar for her husband and that the real decree-holder in the pre-emption suit was her husband. It was contended by the learned Counsel appearing on behalf of the sons of Hansmukhi that a personal decree should not be passed against them. This contention is undoubtedly correct, but the sons would be liable to satisfy the decree to the extent of the assets of Hansmukhi or her husband that may have come in their hands.
11. For the reasons given above we allow this appeal, set aside the decrees of the Courts below and decree the plaintiff's suit for the amount claimed with pendente lite and future interest as against Har Devi and the sons of Hansmukhi who are the respondents in the appeal. The claim against Madan Gopal and the legal representatives of Sidh Gopal who were substituted as respondents in the present appeal is dismissed. Mt. Har Devi and the sons of Hansmukhi who are the respondents in the present appeal will pay the costs of the plaintiff in all the Courts. The remaining respondents will bear their own costs in all the Courts. The decree will be a personal decree against Har Devi respondent and will be executable as against the sons of Hansmukhi only to the extent of the assets of Hansmukhi or her husband that may have come in their hands.