KUNHAMI Vs. POKKER
LAWS(KER)-1963-9-23
HIGH COURT OF KERALA
Decided on September 30,1963

KUNHAMI Appellant
VERSUS
POKKER Respondents


Referred Judgements :-

DAKHINA MOHAN ROY V. SARODA MOHAN ROY [REFERRED TO]
SITARAM SHEOLAL MARWARI VS. KRISHNARAO BALAJI KUNBI [REFERRED TO]



Cited Judgements :-

NARAYANAN NAMBOODIRI VS. PARUKUTTY [LAWS(KER)-1981-3-28] [REFERRED TO]


JUDGEMENT

- (1.)The plaintiff has sued to recover a sum of money which he had deposited in O. S. 440 of 1943. That suit was a suit by the landlord and by one Ammad Haji on the strength of a melcharth of the year 1940 in favour of the latter, for eviction of one Mammi and one Kunhammed Kutty who were tenants in possession under a marupat of the year 1922. Mammi is represented in this suit by the first defendant. Kunhammed Kutty assigned his interest to the second defendant, who in his turn made an assignment to Kunhavulla whose legal representatives are defendants 4 to 9. In O. S. 440 of 1943 the present plaintiff was impleaded as the 23rd defendant in his capacity as subtenant under defendants 1, 2 and 4 to 9. The eviction of tenants came to be stayed by Madras Act XVII of 1946 and Madras Act XXIV of 1949 conditionally, on deposit of arrears of rent, as prescribed. In the event of eviction, the plaintiff's subtenancy would come to an end and so, in order to avoid this, he deposited the arrears of rent payable by the tenants to the landlord from time to time. Ultimately eviction was refused in O.S. 440 of 1943 though costs were decreed. The present suit is for the reimbursement of the total amount deposited, charged upon the interests of defendants 1, 2 and 4 to 9 in the holding. Defendants 4 to 9 contended that the suit is barred by limitation having been filed more than three years after the date of the last deposit do charge being allowable. The two courts have negatived their contentions and decreed the suit; they are the appellants here.
(2.)There was no dispute that the plaintiff had paid rent due from him to the tenants who are their lessors, and that what he deposited was rent which the latter were bound by law to pay to their landlord and which the plaintiff was interested in paying in order to avert eviction. This brought the claim for reimbursement squarely within the scope of S.69 of the Indian Contract Act and this was not disputed. Unless this liability is enforceable as a charge, the suit would be barred by limitation. I do not see why a charge should not be given. The law is summarised thus by Mulla on Transfer of Property Act, 4th edition. The relevant part of the summary which begins at page 529 is as follows:-
"Subrogation by operation of law rests therefore on the same equity of reimbursement as is enacted in S.69 of the Indian Contract Act, that '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'. Such payment sometimes carries with it an equitable charge."

At page 530 it is stated:-

"The equitable charge is analogous to a salvage lien in maritime law but differs from it in that it is not available to a volunteer. The doctrine of salvage lien was recognized by the Privy Council in Nagenderchunder Ghose v. Sreemutty Kaminee 1867 (11) MIA. 241, 258, where Their Lordships said in the case of a mortgagee paying revenue to prevent a taluk from being sold 'that they would find it difficult to come to any other conclusion than that the person who had such an interest in the Talook as entitled him to pay the revenue due to the Government, and did actually pay it, was thereby entitled to a charge on the Talook as against all persons interested therein for the amount of the money so paid.' Again in Dakhina Mohan Roy v. Saroda Mohan Roy 1893 (20) IA 160 a person in possession under a decree of a Court paid money to prevent a sale of the estate for arrears of revenue and was entitled to reimbursement even though the decree was afterwards set aside."

(3.)It was urged that the charge for arrears of rent which is conferred by S.41 of the Malabar Tenancy Act is personal to the landlord and does not enure even to his assignee, and being so, the plaintiff cannot by any process claim the benefit of such charge. Here the question is different. The landlord had a charge for rent due to him from his tenant. To save the tenancy from destruction, and also to safeguard his own rights, the plaintiff, a subtenant, made payment. This generated a valid claim in his favour for reimbursement against defendants 1, 2 and 4 to 9. The only question is whether he could not also claim, not by assignment, but on the principle of salvage lien, a charge for the amount paid. In Nagalla Kotayya v. Kogati Kotappa XLIX MLJ 117, the right of one cosharer paying on behalf of another, rent which is a charge under the Estates Land Act, was held entitled to a charge for the enforcement of which Art.132 of the Indian Limitation Act was applicable. The principle of salvage lien was applied in favour of a person to give him a charge, for depositing money to save property from revenue sale, by Varadachariar and Stodart, JJ. in K. Chengalroya Reddi v. Udai Kavour AIR 1936 Mad. 752 . This was followed by Somayya, J. in Swaminatha Iyyer v. Ramanatha Iyer AIR 1943 Mad. 573 . The authority of this has not been shaken by the later decision of the Madras High Court in Kayakkool Pillai Krishnan Atiyoti v. Thayyullathil Moosa, AIR 1944 Mad. 557 , in which the point decided was only whether the assignee of a landlord is entitled to a charge. Similarly in Shrivallabh Badrinath v. Lax man Vinayak Bhava AIR 1947 Nagpur 43, the mortgagee of a holding paying rent due from the tenant was held entitled to subrogation of the charge in favour of the landlord. As against these, in Ramanadan Prasad Singh v. Ram Das, AIR 1934 Patna 70, relied on, it was ruled that no case under S.69 of the Indian Contract Act was made out. In Sitaram Sheolal Marwar v. Krishnarao Balaji Kunbi AIR 1940 Nagpur 156, the facts do not appear fully from the report, but it seems to have been held, that there was no case of subrogation under S.92 read with S.100 of the Transfer of Property Act; the principle of salvage lien was not invoked.
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