Report No. 13
89. Section 70.-
This section is much wider than the English Law and cases not covered by the Common Law in England would be covered by it. There is a conflict of authority on the question whether the expression 'does anything' in the section includes payment of money. A Full Bench of the Allahabad High Court in Sheonath v. Sarju, AIR 1913 All 220 (232), agreeing with Varadachariar, J.'s view in Perumal Chettiar v. Kamakshi Ammal, AIR 1938 Mad 785. answered the question in the negative, while the Allahabad High Court in an earlier decision1 and the Calcutta High Court2 have answered it in the affirmative. We think that the former view is too narrow and the latter one should be accepted. This will necessitate a change in the language of the section.
1. Nath Prasad v. Baijnath, All 66.
2. Smith v. Dinonath Mookerjee, 12 Cal 213.
90. The words "such other person enjoys the benefit thereof" have given rise to controversy and there are conflicting decisions as to their meaning in various Courts, particularly in the Madras High Court. It has been noted that the statement of the law contained in section 70 is derived from the notes to Lampleigh v. Braithwaite and resembles the right of the negotiorum gestor under Roman Law1.
The view contained in one line of cases has been forcibly expressed by Sankaran Nair J. in Yogambal v. Naina Pillar, 33 Mad 15 (18) Basing himself upon English decisions, he laid down that for the application of section 70 it is necessary that the party sought to be charged must not only have benefited by the payment but also have had the opportunity of accepting or rejecting such benefit. Where no such option is left to him and the circumstances do not show that he intended to take such benefit, he cannot be said to have "enjoyed such benefit" within the meaning of the section. He illustrates his view in this manner:
1. Stokes: Anglo Indian Codes, Vol. I, 533.
"Where A is himself interested in the doing of the work there is nothing to show to B that the work is done for-him or that A expects any payment from him. The Courts will not, therefore presume that A did the work for B. Similarly where B has no choice in the matter but he has perforce to take the benefit, it cannot be said that B adopts the act or accepts any benefit. Therefore the Courts will not hold B liable".
The learned Judge adopted the note in 'Smith's Leading Cases' where one of the instances of the application of the rule in Lampleigh's case, 1 Sm LC (13th Edn.), 148 was described as: "Where the defendants had adopted and 'enjoyed the benefit' of the consideration." The result was that Sankaran Nair, J. took the view that the requirements of section 70 were identical with the conditions imposed by English Law.
The other view has been stated by Sadasiva Ayyar J. in Srichandra Deo v. Srinivasa Charlu, 38 Mad 235, in which he dissented from the judgment of Sankaran Nair J. He observed:
"The words of section 70 of the Indian Contract Act do not oblige us to import all the restrictions imposed by the English decisions, upon the equitable right of a person who honestly does something for another without an intent to do so gratuitously, to recover compensation from that other for the benefit so conferred upon and enjoyed by that other person."1
1. 38 Mad 235 (245).
The learned judge followed the decision of the Calcutta High Court in Jognarain v. Badri Das, 12 IC 144. It may be noted that a similar view was taken by the Allahabad High Court in Dorilal v. Patti Ram, 8 All LJ 622. In the Madras High Court itself, in two subsequent cases1 the decision in Srichandra v. Srinivasa, 38 Mad 235, was dissented from and the view of Sankaran Nair J., was followed. Pollock and Mulla1 have expressed the view, that Sankaran Nair J., laid down the law correctly. In our opinion, the word 'enjoyed' imports the idea of conscious acceptance of the benefit. If the person to be charged is unwilling to accept the benefit which is thus forced upon him, he cannot be said to have 'enjoyed' it.
The restrictions imposed by English Law are the necessary consequence of the requirement that the circumstances must be such that the request necessary to constitute a cause of action in the case of an executed consideration may be implied. In India we are not fettered by any such requirement. In a case, for example, where a co-sharer makes repairs to an embankment with the result that there is an increase in water, the other co-sharer may or may not use the excess of water or he may not be conscious of the increase. In such a case section 70 would not apply but if he was conscious of the increase and had used the water, he should be held to have 'enjoyed the benefit'. The position can be clarified by substituting the word 'enjoys' by the words 'accepts and enjoys'.
1. Sampath v. Rajah of Venkatagiri, AIR 1931 Mad 51 and Lakshmanan v. Arunachalam, AIR 1932 Mad 235.
2. Pollock & Mulla; Op. Cit., p. 432.
91. Section 71.- No change is necessary in section 71.
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