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Allahabad High Court
Lachman Singh vs Debi Singh on 18 July, 1885
Equivalent citations: (1885) ILR 7 All 896
Author: W C Petheram
Bench: W C Petheram, Straight


W. Comer Petheram, C.J.

1. When this case was called on, it was urged as a preliminary objection that, the suit being one cognizable by a Court of Small Causes, and being in respect of a claim of less than Rs.500 in value, there was no second appeal to this Court. This objection has been argued at some length before us, and I am of opinion that it must prevail, and that the appeal to this Court will not lie. The action was brought to recover a share of money recovered under two decrees passed in suits in which the plaintiff and defendants, or the persons through whom they claim, were plaintiffs-decree-holders. The plaintiff and defendants in this suit, or those through whom they claim, were joined in these two suits as plaintiffs, and this suit is brought to recover the share which belonged to one of those plaintiffs as between him and his co-plaintiff. In my opinion, the suit is founded on a contract, and is with in the terms of Section 6 of the Mufassal Small Cause Courts Act, which runs as follows: “The following are the suits which shall be cognizable by Courts of Small Causes, namely, claims for money due on bond or other contract, etc.”

2. In my opinion, this is a claim for a debt due on a contract. When parties are jointly interested in money, and one of them becomes possessor of a larger share than properly belongs to him, there is an obligation or contract implied that he will pay to the other the portion he has become possessor of in excess of that to which he was entitled. The best way of describing a contract is to say that it is a state of things in which two or more minds mutually agree upon the same thing, and in respect of some object in which all are interested. It may be the express agreement of the parties, stating in terms their intentions and wishes, or it may bean agreement implied from their acts. Where there is no express agreement, the state of mind or the agreement may be gathered or implied from the acts of the parties. In the case before us, it is clear that the parties, or the persons through whom they claim, joined together for the purpose of recovering money in which they were jointly interested. Now, it is clear that it was implied that they should divide the moneys so realized. It was implied also, in the absence of an express agreement, that if one party recovered or realized more than his share, that party was under an obligation to the other in respect of the excess so recovered to pay the same to him. That being so, the suit was one based on a contract within the meaning of Section 6 of the Mufassal Small Cause Courts Act, and was cognizable by the Court of Small Causes. By Section 586 of the Code, second appeals in such cases are prohibited. The preliminary objection must prevail, and this appeal must be dismissed with costs.

Straight, J.

3. I am of the same opinion. It appears to me that this suit is of a description very common in England. It is a receipt of money by a person with a legal obligation on him to pay the same to another person. There are two questions to be considered. First, does the money belong to the plaintiff? And secondly, was it received for the plaintiff? If these questions are answered in the affirmative, the case involved all the conditions of a contract. It was a debt between the parties which could be recovered. The learned Chief Justice has defined a contract, and has shown that the facts alleged by the plaintiff constitute a contract within the meaning of Section 6 of Act XI of 1865. I never had any doubt that the preliminary objection to the hearing of this appeal was a sound one, and that the suit was of the nature of those cognizable by Small Cause Courts.

4. I may add that there are no less than nine cases reported in the Weekly Notes and the Indian Law Reports of decisions of this Court on this point, that a contract exists under circumstances such as that asserted by the plaintiff in this suit. Under these circumstances, an appeal does not lie to this Court, and this appeal must be dismissed with costs.

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