BANKEY BENARI PRASAD Vs. MAHENDRA PRASAD

JUDGEMENT

(1.) This is a plaintiff? second appeal from a decree of the learned District Judge of Gaya. The case came in the first instance before Dhavle J., who referred it to a Divisional Bench. That Bench by an order dated 12 February 1940, directed that the case should be laid before the Chief Justice with a view to its being referred to a Pull Bench. The matter has in consequence been heard by this Bench. The suit giving rise to the appeal was brought by the plaintiffs to recover from defendants a proportion of sums spent by the former in repairing a pyne which served both the plaintiffs and the defendants in the suit.

(2.) The plaintiffs based their claim on Section 70, Contract Act. Defendant 4 in the suit was a minor, whereas defendant 7 was an adult. The defendants pleaded that they could not be made liable to pay anything towards the cost of the repairs because they had not been consulted before such repairs were executed and had never had an opportunity of rejecting the benefit proposed to be conferred upon them by the plaintiffs. Defendant 4 also pleaded minority. The learned Subordinate Judge, who heard the case at first instance, decreed the plaintiffs claim against all the defendants whereupon defendants 4 and 7 appealed to the Court of the District Judge.

(3.) The learned District Judge held that there was nothing in Section 70, Contract Act, which required the plaintiffs to give the defendants an opportunity of rejecting the proposed benefit before they could succeed in the suit. He further held that Section 70 did not apply to the case of a minor and consequently allowed the appeal of defendant 4 and dismissed the suit against him in its entirety. Though he held that defendant 7 was liable he found that the claim was excessive and reduced the amount decreed. Defendant 7 has not appealed, but the plaintiffs have appealed, contending that they were entitled to the amount originally claimed against both defendants 4 and 7.