Sadasiva Aiyar, J - (1.)The 1st defendant is the appellant before us. The plaintiff brought a suit for possession of certain properties which had been bequeathed to him by his elder brother Abboy Naidu (when the plaintiff was a minor) under a will dated 4th August 1901. The plaintiff s mother asserting a title in herself to the property sold it to the 1st defendant in February 1904 under Exhibit VI for a sum of Rs. 3,400. The title she asserted against her deceased son Abboy Naidu (in whose name the title deeds stood) and against Abboy Naidu s brother and legatee, the minor plaintiff, was based upon her contention that though the property was purchased in Abboy Naidu s name Abboy Naidu was a benamidar for herself (his mother). The plaintiff of course denied that Abboy Naidu was a benamidar for his mother and he sued upon his title derived from Abboy Naidu. He also prayed in his plaint for the cancellation, if necessary, of the deed of February 1904 executed by his mother. I might at once say that not only is no such cancellation necessary but that the plaintiff has no legal cause of action to get the relief of the cancellation of a document which was not executed and which does not even purport to have been executed by himself or by anybody from whom he traces his title. The lower Appellate Court has found on the facts in the plaintiff s favour and on his title so found given a decree for him.
(2.)The contentions argued before us in Second Appeal were that the plaintiff in any event should have been ordered to pay the amounts of the debts binding on Abboy Naidu and therefore on his legatee (the plaintiff) and paid by the 1st defendant as purchaser under Exhibit VI before the plaintiff recovers the properties; secondly, that so far at least, as a mortgage debt binding on the plaintiff was paid by her she was entitled to be subrogated to the rights of the mortgagee and that the plaintiff ought to be made to pay the amounts due to her as such mortgagee by right of subrogation before recovering the properties.
(3.)So far as the debts other than the mortgage debt are concerned, the learned vakil for the appellant, Mr. Seshagiri Sastri put forward his contention under three heads. The first head may be formulated thus: though the plaintiff s mother purported to execute the deed in her own right alleging herself to be the sole owner, the 1st defendant as a bona fide purchaser for value is entitled to treat the sale deed as having been executed by the plaintiff s mother as his guardian and in that view, the plaintiff is bound to reimburse so much of the purchase money as went to discharge the debts binding upon the plaintiff. Having heard full arguments I do not think that any case quoted on the appellant s behalf supports her contention. On the other hand, the decision of their Lordships of the Privy Council in Balwant Sigh v. R. Clancy (1912) I.L.R. 34 All. 206 directly held that where a person who was the de jure manager of an undivided family purported to create a mortgage as if he was the full owner denying the right of the junior member of the family, the alienee cannot under either the ordinary principles of equity or under the statutory provision (Section 41 of the Specific Relief Act) claim to be reimbursed the portion of the consideration which went to discharge the debts binding on the junior member of the family. As regards the decisions of this Court in Sabapathi Chetti v. Ponnusawmy Chetti (1914) 28 I.C. 365 and Audimula Mudali v Alamelammal (1916) 2 M.W.N. 115 the alienations were by a father who for certain purposes has got all the powers of a full owner and in whom the interest of a full legal owner is vested for many purposes notwithstanding that he might have undivided sons. The decisions in those cases seem to have gone on the particular facts of those cases and the Court came to the conclusion on the evidence that there was nothing to prevent the Court, from holding that the father (alien or) intended also to make the disputed alienation in a capacity which would have given him an interest sufficient to affect the rights of his sons also, and that in the case of a bona-fide purchaser for value such an inference should, if possible, be drawn from the facts and circumstances of those particular cases. In this case it seems to me it is impossible on the evidence and on the pleadings to hold that the plaintiff s mother could have intended to act in any other capacity than that of herself being the full owner. Further in those cases, the documents of alienation were not mere waste papers conveying no title or interest whatever in the property alienated as in this case, but did affect, at least, the part-ownership right of the alienor. In the case in Bij Raj Neopani v. Pura Sundary Dasee (1914) I.L.R. 42 Cal 56 the document was executed (along with others) by a person who was the full legal owner, who had the right to convey the full legal ownership and who intended to convey such full rights. It was under those circumstances held that the erroneous description of the origin and incidents of his title in the sale deed did not prevent the alienee from obtaining a valid title to the rights of a full owner. I do not think that case has any bearing upon the question we are now considering. As regards the English cases of salvage quoted by the appellant s learned vakil, they were cases where a person who was not the owner of goods paid freight and other similar charges and the jury were held justified in estimating damages to allow such charges to be deducted in favour of the wrong doer where the plaintiff s action was brought for damages in trover or where the defendant had an option to return the goods or to pay damages. Those cases also have no bearing on the question now under consideration. On the other hand there is a case in Nathu v. Balwant Rao (1903) I.L.R. 27 Bom. 390 which is a direct authority on this point; and respectfully concurring in that decision, I would hold that the 1st defendant has no right to recover any sums which she paid to discharge Abboy Naidu s debts and which were not charged upon any immoveable property. As stated by the Privy Council in Bam Tuhul Sing v. Bisseswar Lall Shaoo (1875) L.R. 2 I.A. 131 at p. 135 quoted in the above case " It is not in every case in which a man has benefitted by the money of another that an obligation to repay that money arises. The question is not to be determined by nice considerations of what may be fair or proper according to the highest morality. To support such a suit, there must be an obligation, express or implied, to repay."