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Madras High Court
H. Bemasena Rao vs H. Narayana Rao on 16 March, 1926
Equivalent citations: AIR 1927 Mad 459
Author: Ramesam


Ramesam, J.

1. The respondent is not represented. But I am satisfied that the judgment cannot stand. In the first place if the plaintiff is the owner of the land concerned then he is interested in paying the amount and under Section 69 of the Indian Contract Act he is entitled to a decree. On this matter, the District Munsif narrates the facts that the plaintiff’s pleader stated that though Ex. I decided the point against plaintiff, there was afterwards a later compromise by which the defendant and his brother conceded the plaintiff’s title and the defendant even brought a suit to set aside the compromise decree. If the defendant failed in that suit, the compromise decree stands and the plaintiff’s title is established. The District Munsif is not correct in saying that the title cannot be decided in this suit. Though it cannot be fully decided in a Small Cause suit it can be decided incidentally for the purpose of deciding the chief point in the case which is properly within the jurisdiction of a Small Cause Court. If it were necessary, I will have to call for a finding on the question of the title. Again, the decision in Amani Ammal v. Naina Pillai Markayar [1909] 33 Mad, 15 relied on by the District Munsif in applying Section 70 of the Act has been dissented from on the point that the defendant should have an opportunity of accepting or rejecting the payment in Gajapathi Krishna v. Srinivasa Charlu [1914] 38 Mad. 235 and Saptharishi Reddiar v. Secretary of State [1915] 28 M. L. J. 384 which I prefer to follow. If the plaintiff has made the payment to pay a debt of the defendant to save the land from sale thinking that the land belongs to him (even if it turns out it does not so belong) the plaintiff is entitled to a decree,

2. The District Munsif has found the fact of payment in plaintiff’s favour, for he says “the defendant has, no doubt, derived a benefit from it.”

3. I, therefore, set aside the decree of the Court below and give a decree to the plaintiff as prayed for with costs throughout.

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