Radcliffe, J. - (1.)THESE are consolidated appeals from two decrees of the High Court of Judicature at Bombay dated November 8, 1948. The first of these decrees reversed a judgment against the respondent, the State of Gondal, in favour of the present appellants which had been given on January 15, 1943, by the High Court in its Ordinary Original Civil Jurisdiction : the second decree dismissed an appeal by these appellants from the same judgment in so far as It rejected their claim in the suit against the second and third respondents.
(2.)THE facts out of which the litigation arises are simple and they have produced no material divergence of view in the Courts in India. THE real question is how the law should be applied to those facts. All that it is necessary to notice may be briefly set out as follows. On October 1, 1926, a limited company called THE Currimbhoy Mills Co. , Ltd. , executed a debenture trust deed mortgaging two mills known as the Currimbhoy Mill and the Mahomedbhoy Mill together with certain plant thereon to trustees for debenture holders to secure an issue of debentures. THE second and third respondents (whom it will be convenient to refer to as "the trustees") were two of the trustees acting under the trust deed and were the only trustees who were made parties to the suit: the first respondent, the State of Gondal, acting through His Highness the Maharajah (hereinafter referred to as "the Maharajah"), was at all material times the owner of all the debentures secured by the trust deed. By October, 1933, the trustees, in exercise of their powers under the deed, had entered into possession of the mills which, it seems, lay within the municipal limits of the City of Bombay, and remained in possession until September 9, 1937, when the mills were handed over to Mr. Seksaria whose legal persona! representatives are the first appellants. At that date Mr. Seksaria had just become the purchaser of the mills for a sum of Rs. 12,50,000 under a contract between the Maharajah and himself, one of the terms of which was that possession should be given on payment of the full purchase price and before formal transfer. THE full price, Rs. 12,50,000, was in fact paid into the Maharajah's bank account on September 7, 1937, the contract in question having been effected by and contained in (i) a letter which Mr. Seksaria wrote to the Maharajah dated September 1, 1937. (ii) a telegram and confirming letter dated September 4, 1937, from the Dewan of the State of Gondal to Mr. Seksaria, (iii) a telegram from Mr. Seksaria to the Dewan dated September 5, 1937, a telegram in reply of the following day and a final telegram in reply to that on the same day.
What happened after the conclusion of the sale contract was this. On November 29, 1937, Mr. Seksaria entered into an agreement by way of sub-sale with the appellant company under which he agreed to sell the mills to the company for the same price of Rs. 12,50,000. It is impossible to ascertain from the evidence in the suit at what date, if any, prior to the formal transfer from the trustees, the appellant company entered into possession of the mills in place of Mr, Seksaria, During the hearing of the appeals before the High Court that Court heard and refused an application on behalf of the appellants for leave to adduce further evidence on this point. In these circumstances their Lordships are unable to treat the appellant company as having entered into possession at any date before transfer. But before the sub-sale of November 29 a new and disturbing fact had come to light. On October 7, the Assessor and Collector of Municipal Taxes, Bombay, addressed a letter to Mr. Seksaria informing him that bills amounting to Rs. 1,24,092-1-0 were outstanding in respect of municipal taxes on the mills, and that, as such taxes were a first charge on the properties, subject always to Government land revenue, payment "at a very early date" was requested. Statements enclosed with the letter showed unpaid taxes to the amount stated going back to the date April 1, 1933, and covering not only the general tax but water-charge as well. From this date until February 23, 1989, a correspondence went on in which there took part from time to time Messrs. Kanga & Co. , solicitors for Mr. Seksaria, and the appellant company, Messrs. Craigie, Blunt & Caroe, solicitors for the Maharajah and the trustees, the Assessor and Collector of the Bombay Municipality and, at a late stage, Messrs. Crawford Bayley & Co. , his solicitors. Out of this correspondence certain facts appear clearly enough. Firstly, no one disputed that there were unpaid municipal taxes due in respect of the mills, but Messrs. Craigie Blunt & Caroe raised the point that the assessments were too high in view of the fact that the mills had been closed since April 1, 1933, and by May, 1938, the assessments had at their request been reduced to a sum of Rs. 89,318-8-0 in all. Secondly, Messrs. Kanga & Co. maintained from first to last that so much of the taxes as related to the period before September 9, 1937, was for the vendor's not the purchaser's account and asked for it to be discharged accordingly. Mr. Seksaria himself addressed a long and reasoned letter to the Maharajah on December 8, 1938, when the Municipality was pressing for payment, in which he requested that directions for payment should be given at once " in order to avoid unnecessary litigation and unpleasantness. " This letter was not answered or even acknowledged. Thirdly, at no time did Messrs. Craigie Blunt & Caroe make any suggestion that their clients, the trustees, had not come under liability for the taxes by virtue of their possession which had terminated on September 9, 1937, and it is quite clear from some of the letters that they did in fact, no doubt rightly, regard them as so liable. Fourthly, neither the Maharajah nor the trustees made any attempt to pay the sums due. Fifthly, the Municipality were becoming increasingly insistent that the unpaid taxes should be paid by one or other of the parties and as early as May, 1938, they declined to give the appellant company or Mr. Seksaria a connection for the supply of water to the mills until the dues were paid. By July the Municipality were threatening action and on October 31 of the same year their solicitors wrote to Messrs. Kanga & Co. stating that they were instructed to institute legal proceedings to enforce the statutory charge upon the property. Eventually, on February 23, 1939, after further requests for payment by the Maharajah or the trustees had proved unavailing, the appellant company paid the Municipality the sum of Rs. 78,466-12-0 in full satisfaction of the claim against the mills.

On March 25, 1939, a deed was executed whereby the trustees and a third trustee who was then residing in Paris transferred the mills to the appellant company free from the right of redemption and all claims under the debenture trust deed. Mr. Seksaria executed this deed as a confirming party. The recitals to the deedinaccurately, but no doubt immateriallystated that Mr. Seksaria had contracted with the trustees for the purchase of the mills for Rs. 12,50,000 and had paid this sum to them. The recitals also mentioned the sub-sale by Mr. Seksaria to the appellant company.

(3.)THE property having been thus conveyed in pursuance of the contract, Mr. Seksaria and the appellant company instituted the present suit as joint plaintiffs claiming that the respondents should be ordered to pay to them the sura of Rs. 77,522-6-0 (being so much of the sum of Rs. 78,466-12-0 paid as related to the period up to September 9, 1937) with interest. THE trial Judge gave judgment for both Mr. Seksaria and the appellant company against the Maharajah in the sum of Rs. 95,630, covering the sum claimed and interest, with costs, but he dismissed their suit as against the trustees. He ordered them to pay the trustees' costs but directed that they should be at liberty to add those costs to the costs that they were entitled to recover from the Maharajah. THE basis of the learned Judge's view was that the Maharajah had made a contract with Mr. Seksaria into which were imported by law the provisions of Section 55 of the Transfer of Property Act. THE result of that was to impose upon him an obligation to clear off the unpaid municipal taxes up to September 9, 1937. Although Mr. Seksaria had not himself paid the money to discharge these taxes, the learned Judge interpreted the sub-sale to the appellant company as being an actual sale of Mr. Seksaria's contractual rights against the Maharajah and, so holding, considered that there had been an assignment by Mr. Seksaria to the appellant company of his right of action for damages in respect of the Maharajah's breach of contract. Since assignor and assignee were both before the Court, he considered that there was no difficulty in giving judgment for them both against the Maharajah. As to the trustees, they had made no contract with either of the plaintiffs and he saw no ground of action against them.
Both sides appealed from this decision. The High Court sitting in its appellate jurisdiction dismissed the appeal of Mr. Seksaria and the appellant company as against the trustees : but the Maharajah's appeal was allowed. By two decrees dated November 8, 1948 (which are the decrees that are under appeal before this Board), the suit was dismissed as against all the defendants to it, those defendants being given their costs both of the trial and of the appeal. The two Judges who heard the appeal, the Chief Justice and Mr. Justice Kania, came to substantially the same conclusion. They held that Mr. Seksaria had no right of action against the Maharajah on the contract of sale because Mr. Seksaria had suffered no damage from the Maharajah's breach of contract in not paying off the taxes. He, Mr. Seksaria, had not found the money to make the payment. Secondly, they held that the appellant company had no right of action against the Maharajah, since there was no contract between them, and the fact that at the date when it paid to the Municipality the sums demanded it had no interest which the law recognised in the mill property prevented any right arising under Section 69 of the Indian Contract Act, 1872. For some reason which is not clear to their Lordships the learned Judges appear to have considered that a person could not be "interested in the payment of money" within the meaning of that section unless he was at the same time entitled to some legal interest in the property in respect of which such payment might be made. Thirdly, as regards any claim against the trustees, the learned Judges considered that no relevant obligation was imposed upon them by the terms of the conveyance of March 25, 1939, since by that date the unpaid taxes had been paid off, and, even if they were bound as between themselves and the Municipality to meet the taxes accruing during their period of possession (as Mr. Justice Kania seems to have thought that they were), the appellant company had acquired no rights against them by making its payment, since it made that payment "voluntarily" and at a date when it possessed no legal interest in the mills.