JUDGMENT
(1) This second appeal arises out of a suit for partition of the plaint schedule house into two shares, for separate possession of one share and for an account of the rents collected by the defendant from 11-4-52.
(2) Issues Nos. 1 and 4 framed by the trial court are as follows :
“(1) Whether the defendant had spent any amount for repairs ? If so, what is the amount ?
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(4) Whether the defendant is entitled to incur any amount for repairs without the consent of the plaintiff ? If so, whether the defendant is liable to be reimbursed?”
The facts found by the Courts below are : The house was tenanted by the Municipality until 1952 for locating its Ayurvedic dispensary paying a rent of Rs. 20/- per month. But by 1952, the house was badly in need of repairs. The northern half portion was leaking and it threatened to fall down at any time. Therefore, the Municipality gave up possession and removed the dispensary to another building. Then, the defendant sent two notices, Exs. A. 1 and A. 2 to the 1st plaintiff informing him of the state of the house, demanding partition and further requesting him to co-operate in effecting repairs. But the 1st plaintiff did not co-operate. In the second notice, the defendant informed the 1st plaintiff that, if he did not consent to the effecting of repairs, she would be compelled to effect repairs herself and recover from him a half share of the amount. As the 1st plaintiff did not co-operate, the entire roofing collapsed in the year 1955. This was also the view of the Commissioner, who personally inspected the building. It also appears that the eastern wall of the northern portion and the north-western wall of the out-house had also to be reconstructed besides some patch work being done. The house was cement plastered and the lavatories which had fallen down were reconstructed with bricks. The finding of the trial Court is that the defendant spent Rs. 2,181-25 nP. for these repairs and this finding was confirmed by the learned Additional District Judge, Nellore. The trial Court found that the defendant paid Rs. 578-15 nP. towards taxes payable for the house. Therefore, it held that the defendant is entitled to recover from the plaintiff a sum of Rs. 1,379-70 nP. being half of the two amounts of Rs. 2,181-25 nP. and 578-15 nP. The trial Court further found that the plaintiff’s half share of the rent realised by the defendant is Rs. 1,114/- and also that the half share of the taxes paid by the plaintiffs and which the defendant is liable to bear is Rs. 28-72 nP. making a total of Rs. 1,142-72 nP. Deducting this amount from Rs. 1,379-70 nP. payable by the plaintiffs to the defendant towards the formers half share of the amount spent for repairs and taxes, the trial Court finally held that the plaintiffs are bound to pay to the defendant a sum of Rs. 236-98 nP. The decree of the trial court also contained the other reliefs relating to the partition of the house. These findings and the decree which followed thereon were confirmed in appeal by the learned Additional District Judge. This second appeal is filed by the 3rd plaintiff, who is one of the legal representatives of the 1st plaintiff, who died pending the suit. The contesting respondent is the 1st respondent, who is the defendant and respondents 2 and 3 in this second appeal are plaintiffs 2 and 4, who are also the legal representatives of the deceased-1st plaintiff.
(3) This being a second appeal, the finding of the Courts below as to the amounts spent by the defendant for repairs and the amounts paid towards taxes as well as the amount collected by her as rent are not and could not be questioned before me. The only question argued by the learned Counsel for the appellant is that the defendant, who is a co-owners, could not, without the consent of the 1st plaintiff, who was the other co-owner spend any amount for effecting repairs to the house and claim a half share thereof from him. The argument is that one of several co-owners effecting repairs to the joint property cannot claim from the other co-owners any contribution towards the amount thus spent. In support of this proposition, reliance is placed upon the decision in Solaiman v. Jatindra Nath, AIR 1929 Cal 553, where Rankin, C. J. , delivering the judgment of the Court, stated :
“I am prepared to assent to the proposition that where a person has expended money upon a joint property and a time comes to partition it, it is reasonable and right to endeavour to give him such an allotment as may enable him to reap the advantage of what he has expended upon improvements. But when we are asked to go beyond that and to say that it is the prima facie right of such a co-owner expending money to improve the whole or a greater portion of the joint land to have in one way or another recouped to him by his co-owners the value of the improvements which they got in the shares which are allotted to them then I say that that is not the law.”
The learned Chief Justice relied on the following passage in Freeman on Co-tenancy and Partition, 2nd Edition, page 680 :
“If one joint tenant or tenant-in-common covers the whole of the estate with valuable improvements so that it is impossible for his co-tenant to obtain his share of the estate without including a part of the improvements so made the tenant making the improvements would not be entitled to compensation therefor, notwithstanding they may have added greatly to the value of the land ; because it would be the improver’s own folly to extend his own improvements over the whole estate and because it would be unjust to permit a co-tenant at his pleasure to charge another co-tenant with improvements he may not have desired. In such a case, the improver stands as a mere volunteer and cannot, without the consent of his co-tenant, lay the foundation for charging him with improvements.”
That case was one of a co-owner effecting improvements to a joint property and not one where he effected necessary repairs as in the present case. Similar is the view taken in Abdul Sattar v. Zahoor wherein it was observed :
“Where a person has expended money upon a joint property and a time comes to partition it, it is reasonable and right to endeavour to give him such an allotment as may enable him to reap the advantage of what he has expended upon improvements. It is not the prima facie right of such a co-owner expending money to improve the whole or a greater portion of the joint land to have in one way or another recouped to him by his co-owners the value of the improvements which they get in the shares which are allotted to them. In a case where the improvements have been made by a co-owner at his own will though not improperly the Court will not endeavour to make sure that the owner, who has improved the property, will get every penny to himself of the advantage which his money has created. If one joint owner covers the whole of the common property with valuable improvements so that it is impossible for his co-owner to obtain his share of the property without including a part of the improvements so made, the joint owner making the improvements would not be entitled to compensation therefor, notwithstanding they may have added greatly to the value of the land ; because it would be the improver’s own folly to extend his own improvements over the whole joint property and because it would be unjust to permit a co-owner at his pleasure to charge another co-owner with improvements he may not have desired. In such a case, the improver stands as a mere volunteer and cannot, without the consent of his co-owner, lay the foundation for charging him with improvements. Prima facie, such a owner will be given an allotment, so far as is possible, that may enable him to keep the advantage of his improvements. But it requires a special case and “a very strong case for a Court to go any further than that.”
In that case, the claim for contribution related to : (1) repairs to a house, which was in the exclusive occupation of the plaintiff co-owner and (2) expenses incurred for electric installations to the house. The learned Judge, who gave the decision, held on the evidence that he was not prepared to accept the plaintiff’s case that he spent the amount claimed on the repair of the house. As regards the electric installations, the learned Judge pointed out that it was done by the plaintiff for his own luxury, because of his own marriage in that house, without consulting the defendant-co-owner and without his consent. In effect, the view taken by the learned Judge in that case appears to be that the plaintiff was a volunteer, that he spent money for the electric installations for his own benefit and that the amount was not spent to benefit the defendant-co-owner. Paragraph (a) of the head-note in the report in so far as it refers to the amount spent for repairs does not seem to be correct.
(4) Reliance is also placed upon the decision in Mahadei v. Keluni Dei, . That was a case of a suit for partition by the plaintiff against two defendants. The 1st defendant made constructions over the land owned jointly by all the three in excess of his share. It was held that there was no apparent justification in compelling the plaintiff or the 2nd defendant to pay compensation for any construction made by the 1st defendant.
(5) The learned Counsel for the appellant next relied upon the decision in Leigh v. Dickeson, (1884) 15 Q. B. D. 60. In that case, the cestui que trust of the plaintiffs and the defendant were tenants in common of a house. The defendant effected certain repairs, which were found by the learned Judges to be reasonable and proper. The suit was filed by the plaintiffs to recover rent and the defendant, by his counter-claim, claimed contribution for the cost of repairs effected by him to the house. Brett, M. R. , after noting that the cestui que trust of the plaintiffs had derived benefit from the expenditure incurred by the defendant and that the defendant seeks to reimburse himself for the cost of the repairs in proportion to the benefit which the tenant in common with him has received posed the following ;
“Does this counter-claim fall within any legal and recognised principle. ?”
In that case, there was no express request by the tenant in common, that the defendant should expend the money. After referring to the legal conditions which enable a man who has expended money to recover it from another, Brett, M. R. , observed thus :-
“But it has been always clear that a purely voluntary payment cannot be recovered back. Voluntary payments may be divided into two classes. Sometimes money has been expended for the benefit of another person under such circumstances that an option is allowed to him to adopt or decline the benefit ; in this case, if he exercises his option to adopt the benefit, he will be liable to repay the money expended ; but if he declines the benefit he will not be liable. But sometimes the money is expended for the benefit of another person under such circumstances, that he cannot help accepting the benefit, in fact that he is bound to accept it ; in this case he has no opportunity of exercising any option, and he will be under no liability. Under which class does this case come ? Tenants in common are not partners, and it has been so held ; one of them is not an agent for another. The cost of the repairs to the house was a voluntary payment by the defendant, partly for the benefit of himself and partly for the benefit of his co-owner but the co-owner cannot reject the benefit of the repairs, and if she is held to be liable for a proportionate share of the cost, the defendant will get the advantage of the repairs without allowing his co-owner any liberty to decide whether she will refuse or adopt them. The defendant cannot recover at common law ; he cannot recover for money paid in equity, for that is a legal remedy ; there is no remedy in this case for money paid. But it is said that there is a remedy in equity ; a suit for a partition may be maintained in equity ; that is a remedy which is known and recognised in a court of equity ; in a suit in the Chancery Division expenditure between tenants in common would be taken into account.
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If the law were otherwise, part-owner might be compelled to incur expenses against his will; a house might be situate in a delaying borough and it might be though by one co-owner that it would be better not to repair it. The refusal of a tenant in common to bear any part of the cost of proper repair may be unreasonable; nevertheless, the law allows him to refuse, and no action will lie against him.”
Cotton , L. J. expressed the same opinion, but, at the same time, pointed out:
“Therefore, no remedy exists for money expended in repairs by one tenant in common, so long as the property is enjoyed in common; but in a suit for a partition it is usual to have an enquiry as to those expenses of which nothing could be recovered so long as the parties enjoyed their property in common; when is desired to put an end to that state of things, it is then necessary to consider what has been expended in improvements or repairs; the property held in common has been increased in value by the improvements and repairs; and whether the property is divided or sold by the decree of the Court, one party cannot take the increase in value, without making an allowance for what has been expended in order to obtain that increased value; in fact, the execution of the repairs and improvements is adopted and sanctioned by accepting the increased value.”
Lindley, J. While expressing the same view, observed:
“Tenancy in common is a tenure of an inconvenient nature, and it is unfit for persons who cannot agree amongst themselves; but the evils attaching to it can be dealt with only in a suit for partition or sale in which the rights of the various owners can be properly adjusted.”
In Halsbury’s Laws of England, Third Edition, Volume 32, the law is summarised in paragraph 521 at page 334 as follows :-
“Contribution : A joint tenant could not compel the other joint tenants to contribute to the cost of repairs ; but, in a partition action, he was allowed sums properly spent on substantial repairs and improvements. In such an action, he could be charged with any excess of rents and profits received by him, or, if he had been in sole occupation, with an occupation rent.”
The right of contribution as between co-owners in cases like these is governed by Section 70 of the Indian Contract Act which reads : –
“Where a person lawfully does anything for another person, or delivers anything to him, not intending to do so gratuitously, and such other person enjoys the benefit thereof, the latter is bound to make compensation to the former in respect of, or to restore, the thing so done or delivered.”
By this section, three conditions are required to establish a right of action at the suit of a person who does anything for another ;
(1) The thing must be done lawfully ;
(2) It must be done by a person not intending to act gratuitously ; and
(3) the person for whom the act is done must enjoy the benefit of it.
A Full Bench of the Madras High Court in Srirama Raja v. Secy. of State for India in Council, (1942) 2 Mad L. J. 800 : (AIR 1943 Mad. 85 F. B. )had to consider the scope of this section. That case arose out of a suit by the Secretary of State for India in Council for recovery of money by way of contribution from a shrotriemdar who was the co-owner of an irrigation tank with the Government in respect of repairs done to it. It was held by the Full Bench that, in carrying out the repairs, the Government had acted lawfully, that it had not intended to carry them out gratuitously, that the defendant had enjoyed the benefits of the repairs which were necessary and but for which his lands would have suffered and that all the conditions of section 70 of the Contract Act having been fulfilled, the Government is entitled to recover contribution from the shrotriemdar. It was also pointed out that the provisions of Section 70 of the Indian Contract Act are wider than the English Law under which the defendant would not be liable.
(6) Mr. Sitarama Raju, the learned counsel for the respondents also relied upon the decision in Subbiah v. Venkataramayya, AIR 1923 Mad 358 wherein it was held by a Division Bench of the Madras High Court that one tenant-in-common, who makes improvements on the property of the co-tendency, cannot ordinarily be entitled to compensation for doing so, except when he had expended necessarily or with the concurrence of the other co-tenant. This again was a case of improvements and not repairs. But the argument of the learned Counsel is that even in the case of improvements, there will be a right to claim contribution if it is found that those improvements are necessary . In Shiam Lal v. Radha Ballabh AIR 1925 All 770 it was held :
“Where a co-tenant spends money and restores a property which is in ruins to a state in which it is of use and can bring in some profit, he is entitled to compensation at the hands of the other co-sharers, provided he has not made the improvements with a view to embarrass his co-sharers at the time of partition.”
It was further held :
“The co-tenant against whom the improvements are charged, will be charged not with the price of the improvements but only with his proportion of the amount which at the time of the partition they add to the value of the premises. From this amount, he will also be entitled to deduct any sum of which he may have a just claim for use and occupation of his moiety enjoyed by the co-tenant making the improvements.”
(7) In the present case, on the findings of the Courts below, the repairs effected by the defendant to the house cannot but be held to be necessary repairs. The roofing had fallen and it had to be restored. The walls had to be plastered. So, what the defendant had done was done by her lawfully. Exs. A-1 and A-2, the notices given by her to the 1st plaintiff conclusively establish that she did not intend to effect the repairs for the benefit of the plaintiff also gratuitously. Further, in the plaint, the 1st plaintiff claimed a partition of the house as it stands, after being repaired by the defendant and also for an order directing the defendant to render an account regarding the rents received for the 1st plaintiff’s half portion of the house after it was repaired. Thus, it is clear that the 1st plaintiff was claiming to enjoy the benefit of the repairs effected by the defendant to the joint house. Thus, all the conditions of Section 70 of the Contract Act are satisfied and the defendant is entitled to be reimbursed by the plaintiffs to the extent of a half share of the amount spent by her for the repairs.
(8) The second appeal fails and is dismissed with costs.
(9) Appeal dismissed.