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68. Claim for necessaries supplied to person incapable of contracting, or on his account.---If a person incapable of entering into a contract, or any one whom he is legally bound to support, is supplied by an other person with necessaries suited to his condition in life, the person who has furnished such supplies is entitled to be reimbursed from the property of such incapable person.

(a) A supplies B a lunatic, with necessaries suitable to his condition in life. A is entitled to be reimbursed from B's property.

(b) A, supplies the wife and children of B, a lunatic, with necessaries suitable to their condition in life. A is entitled to be reimbursed from B's properly.

Minors.---Since the decision of the Privy Council in Mohori Bibee v. Dhurmodas Ghose it is clear that this section applies to minors as well as to persons of unsound mind (see the illustrations) and others, if any, disqualified from contracting by any law to which. they are subject. It is therefore needless to consider the doubts expressed in earlier Indian cases.

"Necessaries."---Costs incurred in successfully defending a suit on behalf of a minor in which his property was in jeopardy are "necessaries" within the meaning of this section. And so are costs incurred in defending him in a prosecution for dacoity. So also is a loan to a minor to save his property from sale in execution of a decree.

Expenses for the marriage of a Muslim minor girl are recoverable as necessaries, if the payment was not gratuitous. It is submitted that the passing of the Child Marriage Restraint Act, 1929 (the Sarda Act) has also affected the law, since, as pointed out in the Nagpur High Court, a Court of justice can scarcely regard expenditure on a purpose forbidden by law as expenditure on "necessaries". Some of the earlier decisions may not be good law at the present day. Moneys spent on obsequies of the father of a minor are not spent on "necessaries" for the minor within the meaning of S. 68.

69. Reimbursement of person paying money due by another in payment of which he is interested.----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.

B holds land in Sind, on a lease granted by A, the zamindar. The revenue payable by A to the Government being in arrear, his land is advertised for sale by the Government. Under the revenue law, the consequence of such sale will be the annulment of B's lease. B to prevent the sale and the consequent annulment of his own lease, pays to the Government the sum due from A. A is bound to make good to B the amount so paid.

"Person....interested in the payment of money."---This section only applies to payments made bona fide for the protection of one's own interest. A person may be interested in the payment, but if in making the payment he is not actuated by the motive of protecting his own interest, he cannot recover under this section. Thus where A purchases properly from B, but the sale is fictitious, A cannot recover from B money paid by him to save the property from being sold in execution of a decree against B. It is otherwise, however, if the sale is bona fide.

Where A's goods are wrongfully attached in order to realise arrears of Government revenue due by B, and A pays the amount to save the goods from sale, he is entitled to recover the amount from B.

It is enough for a person claiming under the provisions of this section to show that he had an interest in paying the moneys claimed by him at the time of payment. Thus moneys paid by a person while in possession of an estate under a decree of a Court to prevent the sale of the estate for arrears of Government revenue may be recovered by him under this section, even though the decree may be subsequently reversed and he may be deprived of possession. In the case now cited the Privy Council said:---"It seems to their lordships to be common justice that when a proprietor in good faith pending litigation makes the necessary payment for the preservation of the estate in dispute, and the estate is afterwards adjudged to his opponent, he should be recouped what he has so paid by the person who ultimately benefits by the payment if he has failed through no fault of his to reimburse himself out of the rents." Conversely, payment of kist made by a person who had obtained a decree for possession of certain lands may be recovered back by him, though the payment may have been made when he was not yet put into possession pending an appeal. But a person in wrongful possession of land making payment of Government revenue is not interested within the meaning of this section. A agrees to sell land to B Subsequently A, in breach of the agreement, agrees to sell the land to C. B sues A and C for specific performance. Pending the suit the land is sold in execution of a decree obtained by A's creditor against A. B deposits in Court the amount required to be deposited under Order XXI, rule 89, of the Code of Civil Procedure, and the sale is thereupon set aside. B, having no title in the property and no possession of it at the time of the payment, was not interested in the payment and he is not entitled to recover it from A or C.

A mortgagor who voluntarily pays the assessment on land mortgaged by him, forestalling the mortgage in possession, who, it is found, was willing to pay the assessment as he had done for years past, is not entitled to recover from the mortgagee the amount so paid by him. Similarly, payment made by a mortgagee to prevent the sale of the mortgaged property in execution of decree against the mortgagor cannot be recovered from the mortgagor if the mortgage was prior to the execution proceedings. The Allahabad High Court, differing from an earlier opinion of its own, has held that "a person interested in making the payment" does not mean that the interest should be such as would stand the test of a judicial trial; it is sufficient if the person who makes the payment honestly believes that his own interest requires that it should be made. It is submitted that this is the correct view, at any rate if there are reasonable grounds for the belief, even though the belief itself may be unfounded. In a Privy Council case, the plaintiffs had agreed to purchase certain mills, and to save the mills from sale they paid arrears of municipal dues. In allowing them to recover this sum from the vendors, their Lordships said: "The learned judges of the High Court in appeal held that the appellant company could not establish a right under this section because it was not interested in the payment of the money that it paid. The view that it was not 'interested' was based on the fact that at the date of the payment the company had no property interest in the mills in respect of which the taxes were claimed. And, in accordance with this view, the company's payment was described by the learned judges as a voluntary payment. To their Lordships it seems to have been very unlike a voluntary payment. The company had contracted to buy these mills, and they were imminently threatened with. a forced sale which would, of course, defeat its purchase. Money had to be found for the taxes if the mills were to be saved. Neither the Maharaja nor the trustees showed any sign of paying the Municipality. So the appellant company paid. But to describe it in those circumstances as having made a voluntary payment appears to their lordships to involve some misuse of language. Nor do they appreciate why it should not properly be described as interested ill the payment. In any ordinary use of language the company was interested in the taxes being paid at the time when they were paid since only through the payment could it realize the fruit of the contract that it had entered into. The words themselves do not require that a person to be interested in a payment should at the same time have a legal proprietary interest in the property in respect of which the payment is made. It is no doubt true that there have been decisions which have tested whether a person was interested in payment by ascertaining whether he had such a proprietary' interest. It may be a good test in appropriate circumstances. But it would be a sad fallacy to deduce from the circumstances that a person may be interested in a payment because he has an interest in the property to which it relates the conclusion that no one who has not an interest in a property can be interested in a payment made in respect of that property. In truth, S. 69 invites no such judicial limitation. The section is part of a chapter of the Contract Act devoted to ‘Quasi-Contract’. The general purport of the section is reasonably clear: to afford to a person who pays money in furtherance of some existing interest an indemnity in respect of the payment against any other person who, rather than he could have been made liable at law to make the payment.

Suit for contribution.---It has been assumed in a number of decisions that S. 69 applies to suits for contribution, that is, to cases where both plaintiff and defendant were liable for the money paid by the plaintiff. It was submitted by Sir Maurice Gwyer that S. 69 has no application to such cases. The section deals with reimbursement and not with contribution at all, for the person who is interested in the payment of money which another is bound by law to pay "must be a person who is not himself bound to pay the whole or any portion of the money." It was so held by the High Court of Madras and the contrary contention had been doubted in Calcutta even earlier, A view similar to that which commended itself to the High Court of Madras was definitely accepted by the High Court of Calcutta and has been re-affirmed in the same Court. The Patna High Court has held that this Section does not apply to a suit for contribution. Decisions which have been thought to sustain a different doctrine are, it is submitted incorrect. In none of them does the point appear to have been fully argued or the authorities above mentioned to have been brought to the notice of the Court.

It need hardly be said that a suit for contribution may lie in appropriate circumstances, even though S. 69 is not applicable. in many cases also S. 70 may be prayed in aid.

"Money which another is bound by law to pay."---It was contended that this section applied only to cases where the person who is there called "the other" was personaly liable for the debt, and that it did not apply where, as in that case, the liability attached to the land. The Court overruled this contention and said:---"It is clear from the illustration that that is not the intention of the Legislature. The illustration gives the case of a lessee paying off revenue due to Government; but the liability to pay revenue due to Government is not a personal liability of the zamindar, but a liability which is imposed upon the zamindar's land. It is therefore clear that the section was intended to include the cases not only of personal liability, but all liabilities to payments for which owners of land are indirectly liable, those liabilities being imposed upon the lands held by them."

"Bound by law."---The liability for which payment may be made under this section need not be statutory. In a Calcutta case it was argued that the words "bound by law" restricted the section to liabilities created by some statute, such as liabilities to pay revenue, but excluded liabilities which arose out of contracts by parties. The Court declined to uphold this contention and observed: "That would be putting on the section for too narrow a construction, because it was no doubt intended to include such a case as a lessee paying rent to the superior landlord for which the intermediate lessee was liable under a covenant.’" "Bound by law" means that the defendant at the suit of any person might be compelled to pay. Their lordships of the Privy Council in Govindram Gordhaandas Seksaria v. State of Gondal expressed the view that the words extend to any obligation which is an effective bond in law, just as the common law gives a right of indemnity to one who has paid "under compulsion of law" against the true obligor without limiting. the circumstances in which the latter's liability had arisen.

An action to recover money paid is not maintainable under this section unless the person from whom it is sought to be recovered was bound by law to pay it. Thus revenue due on land owned by one who is not the registered holder is not money which such an owner is bound to pay under the Madras Revenue Recovery Act, 1864, though it may be to his interest to do so, and the registered holder voluntarily paying such revenue cannot recover it under this section.

Payments made by a second mortgagee to save the mortgaged property from sale in execution of a decree for rent obtained by the zamindar against the mortgagor under the Bengal Tenancy Act, 1885, cannot be recovered by him from the first mortgagee, as the latter is not bound under S. 69 of the Act to pay the rent due by the mortgagor to the zamindar. A and B sold a property to C, A and B agreeing, since B's share was subject to attachment before judgment in a suit against B, to keep C indemnified. B's creditor obtained a decree against B, and to save the property C paid the decretal amount. In a suit against A, it was held that he was liable to repay C the whole amount. Where the beneficiaries filed a suit against two mutawallis and obtained satisfaction of the decree from one of them who had the funds in his own hands, it was held that in the circumstances he was only paying what he himself was bound to pay and that he could not therefore claim contribution from his co-mutawalli.

Purchase of property subject to payment of encumbrances.---A person purchasing property subject to a charge is alone liable to pay it off, and he is not therefore entitled to recover the amount paid by him from the person originally liable in respect thereof. Thus the purchaser of a patni taluk at a sale in execution of a decree against the holder thereof is bound by law to pay all arrears of rent due to the zamindar at the time of sale. If the purchaser pays the arrears to save the taluk from sale at the instance of the zamindar, he cannot recover the amount from the patnidar, though the patnidar enjoyed the profits of the patni during the period for which the rent had become due. Similarly, a person who buys immovable property subject to a charge for maintenance in favour of a widow cannot recover from the vendor maintenance money paid by him to the widow to save the property from sale at the instance of the widow. A puisne mortgagee who bought the mortgaged Property in execution of his own decree and thereafter redeemed a prior mortgage cannot claim from the mortgagor the sum paid by way of redemption, since after the puisne mortgagee's purchase of the property, the mortgagor's interest was extinguished and he is therefore no longer a person "bound by law to pay."

Payment must be to another person.---This section applies only where one person pays to another money which a third party is bound to pay. There was certain land in South Canara which was held by the Government at a certain rent as mulgaindar (permanent tenant) under a mulgar (landlord). Arrears of revenue were due from the mulgar to Government, and the Government, to prevent the land from being sold for the arrears, paid as mulgaindar or rather retained the arrears due to itself. It was held that, having made the payment to itself, the Government could not recover the sum from the mulgar under this section.

Remedies against wrong doer.---Neither this section not S. 70 refers in any way to remedies against wrong-doers.

Other remedies.---It seems rather superfluous to add that they do not exclude any such claims to contribution as may arise out of express or tacit agreements for indemnity.

"Bound by law to pay". Meaning of.---The words "Bound by law to pay" extend to any obligation which is an effective bond in law. Certainly the Common Law of England afforded a right of indemnity to one who had paid "under compulsion of law" against the true obligor without limiting the circumstances in which the latter's liability had arisen. There is authority in the Courts of India also for the proposition that "bound by law" covers obligations of contract or tort.

Person making payment---If must have proprietory interest in the property to which payment relates.---Interest of such person explained.---Section 69, does not require that a person to be interested in a payment should at the same time have a legal proprietary interest in the property in respect of which the payment is made. It is no doubt true that there have been decisions which have tested whether a person was interested in a payment by ascertaining whether he had such a proprietary interest, it may be a good test in appropriate circumstances. But it would be a sad fallacy to deduce from the circumstances that a person may be interested in a payment because he has an interest in the property to which it relates. The conclusion that no one who has not an interest in a property can be interested in a payment made in respect of that property. In truth, section 69 invites no such judicial limitation. The section is part of a chapter of the Contract Act devoted to "Quasi Contract". The phrase itself is no doubt taken from a familiar branch of the English Common law, although there is no reason to suppose that the Indian Contract Act was intended to do no more than to reproduce in compendious phrases the precise doctrines of the English law of contract. But the general purport of the section is reasonably clear, to afford to a person who pays money in furtherance of some existing interest an indemnity in respect of the payment against any other person who, rather than he, could have been made liable at law to make the payment.

When one section applies the other cannot.---Sections 69, 70 deal with entirely different conditions and they cannot both apply to the same set of facts. If one applies the other cannot.

Payment made for another contract---When benefit of section 69 may be claimed.---Under S. 69, the main condition necessary to entitle a person to its benefit is that he should be 'interested' in the payment and if he is further enjoined by law or decree of Court to make the payment for which another is liable under the law, he would nevertheless be interested in the payment if the primary liability is ultimately of that other person.

70. Obligation of person enjoying benefit of non-gratuitous act.----Where a person lawfully does anything for another person, or delivers anything to him, not intending to do so gratuitously, and such other person enjoys the benefit thereof, the latter is bound to make compensation to the former in respect of, or to restore, the thing so done or delivered.

Non-gratuitous act done for another.--If goods, work, or anything valuable be offered in the way of business and not as a gift, the acceptance of them is evidence of an agreement---a real, not a fictitious, agreement, though it need not be expressed in words---to pay what the consideration so given and taken is reasonably worth. A man is not bound to pay for that which he has not the option of refusing. Under this section it would seem that whoever finds and restores lost property, apart from any question of a reward having been offered, is entitled to compensation for his trouble if he did not intend to act gratuitously.

"Certainly, there may be difficulties in applying a rule stated in such wide terms as is that expressed in section 70. According to the section it is not essential that the act shall have been necessary in the sense that it has been done under circumstances of pressing emergency, or even that it shall have been an act necessary to be done at some time for the preservation of property. It may therefore be extended to cases in which no question of salvage enters. It is not limited to persons standing in particular relations to one another, and, except in the requirement that the act shall be lawful, no condition is prescribed as to the circumstances under which it shall be done". "The terms of [this section] are unquestionably wide, but applied with discretion they enable the courts to do substantial justice in cases where it would be difficult to impute to the persons concerned relations actually created by contract". The section ought not to be so read as to justify the officious interference of one man with the affairs or property of another, or to impose obligations in respect of services which the person sought to be charged did not wish to have rendered. Thus a person who starts litigation for the appointment of a guardian to a minor is not entitled to the expenses of such litigation from the minor or his estate. But its application is not excluded merely because the thing done was for the plaintiffs benefit as well as the defendants.

A minor is not liable to a suit under S. 70. The reason for this has been stated to be that, if he cannot be sued on an express contract, neither can he be sued on an implied one; and S. 70 is one of a fasciculus of sections dealing with what the Act calls "certain relations resembling those created by contract." Apart from this, it is clear that any other construction would make, S. 68 redundant and S. 11 to a great extent nugatory. So a Full Bench of the High Court of Patna have held in Bankey Behari v. Mahendra Prasad.

An equitable principle resembling that of this section is recognised in the English law of partnership and companies. Where money has been borrowed by one partner in the name of the firm, but without the authority of his co-partners, and applied in paying debts of the firm, the lender is entitled to call on the firm for repayment of the amount so applied. The rule is treated as somewhat peculiar and is not likely to be extended.

It is superfluous to add that the section does not apply where an act is done by one person at the express request of another. Thus if a client engages a pleader to act for him in a case, and if no fee is fixed, the pleader is entitled to reasonable remuneration not under this section, but becomes the request implies a promise to pay such remuneration.

Compensation.---By this section three conditions are required to establish a right of action at the suit of a person who does anything for another; (1) the thing must be done lawfully; (2) it must be done by a person not intending to act gratuitously; and (3) the person for whom the act is done must enjoy the benefit of it.

Where a notice was issued upon the owners of a hat by the municipality to effect certain improvements, intimating that failure to comply with the notice would lead to a withdrawal of the license granted for holding the hat, and one of the co-sharers effected the required improvements, it was held that he was entitled to compensation from the other co-sharers. Upon the same principle, where a mortgagee threatened to sell the land mortgaged to him, and one of the co-sharers paid up the mortgage debt to prevent the property from being sold, it was held that he was entitled to compensation from the other co-sharers. A mortgagee of immovable property can recover from the mortgagor payments made by him for road and public works cesses payable by the mortgagor. And so where the holder of an inam within a zamindari takes for his benefit Government water, and the zamindar, who is liable in the first instance to pay to the Government the cess for the water so taken, pays the same, he can recover the amount of cess so paid from the inamdar. Similarly when one of two joint tenants pays the whole rent to the landlord, he is entitled to compensation from his co-tenant. So also where persons have a raiyati holding and pay the decretal amount against the tenure holders in order to save the property from sale they are entitled to compensation from the tenure holders. And where one of the two mortgagor paid off the mortgage amount to save the property from sate, he was held entitled to compensation from his co-mortgagor. But where the plaintiff had a seven-eights share in the property and the defendant only one-sixteenth and the plaintiff had incurred expenses for repairs without consulting the defendant it was held that he was not entitled to compensation in the absence of proof that the defendant was in a position, after the execution of the repair works, to exercise the option whether or not to avail himself of the benefit. Work done by an optician in treating a wife's eye for cataract cannot be said to be a benefit enjoyed by her husband, especially when there is no evidence that she has been cured.

Neither this section nor S. 69 affects the claim for contribution under S. 82 of the Transfer of Property Act, 1882.

"Lawfully."---It has been held that by the use of the word "lawfully" in this section the Legislature had in contemplation cases in which a person held such a relation to another as either directly to create or reasonably to justify the inference that by some act done for another person the person doing the act was entitled to look for compensation to the person for whom it was done. But this view has been criticised as reading so much into the word as to render the rest of the section tautologous. Where a person managed the estate of his wife and his sister-in-law and was under the impression that he would receive remuneration for his services, he was entitled to claim reasonable compensation. The word "lawfully" in this section is not mere surplusage. On the contrary, it is submitted that it is of the essence of the section. it must be considered in each individual case whether the person who made the payment had any lawful interest in making it; if not, the payment cannot be said to have been made lawfully. A payment made by a person fraudulently and dishonestly with the intention of manufacturing evidence of title to land which belonged to the defendant, and to which he knew he had no claim, is not lawful within the meaning of this section. In such a case it is clear that the payment could also not be regarded as having been made for the defendant. Again, a payment made even in good faith as part of a transaction the other party was not competent to authorise is not lawfully made for this purpose. Similarly, where a purchaser of property, the sale being fictitious and so found by the court in previous litigation, paid the amount of a decree obtained by a third party against his vendor to prevent the properly from being sold in execution, it was held that the payment was "lawfully" made, and that the purchaser could not recover it from the vendor. A payment in satisfaction of a decree, by a person who is a party to the decree and is bound thereby, is a payment made "lawfully" within the meaning of this section.

Persons incompetent to contract.---This section does not apply to persons who are incompetent to contract. The section refers to circumstances in which the law implies a promise to pay, and where there could not have been a legally binding contract, a promise to pay cannot be implied.

"Does".---This expression includes payment of money. It must not be supposed that because S. 69 provides for the case of payment of money, therefore the present section excludes that case. There may be cases in which a person who is bound to pay a certain sum of money would not necessarily be benefited by its payment by another. Those cases would fall under S. 69, for benefit received by the payment of money is one of the conditions necessary to the application of this section. In a Full Bench case in the Allahabad High Court, a contrary view has been taken and it has been held that the words "lawfully does anything" do not mean payment of money.

"For another person".---Where a person having no interest in the land allows an ex parte decree to be passed against him for rent and pays, such payment is not "lawfully" made. Similarly, payment of revenue by the plaintiff while in wrongful possession of the defendant's land and for his own benefit and his own account could not be recovered under this section. And it has been held that if A is assessed by the income-tax authorities and protests that B is the party property liable, but pays the tax, A cannot recover the amount from B, A cannot be said to have made the payment "for" B. It is quite clear that where the object of the payment is to benefit the plaintiff himself, the payment cannot be said to have been made "for" the defendant. Where the defendant derives no benefit from the work done, clearly there is no room for the application of S. 70.

It does not seem to have been appreciated in later cases that the decision of the Madras High Court does not lay down any general rule to the effect that, if two persons are interested in a certain thing being done and one of them does it, he can recover under S. 70 the proportionate share of the expenses incurred in its performance from the other who has benefited by it. The question whether the act is done for another is one of fact in each case. In a later Madras case it was laid down by Munro and Sankaran Nair JJ. that S. 70 does not apply when the party sought to be made liable for compensation had no option but to enjoy the benefit. This decision has been dissented from by the High Court of Calcutta is and even by the High Court of Madras in two later decisions. It has also been dissented from by the High Court of Patna. There thus appear to be two distinct lines of decisions on the point, one in favour of accepting the view that the word "enjoys" used in the section must be construed as "accepts and enjoys", and the other holding that such a construction is not warranted by the language of the section and that the courts in India should not import into it restrictions taken from English decisions. It is respectfully submitted the first line of decisions indicated above embody the more correct view.

The expression "another persons" includes a caste. Thus where property belonging to a caste is attached in execution of a decree, and a member of the caste pays to the decree-holder the amount due to him under the decree to save the property from sale in execution, he is entitled to be reimbursed out of the caste property.

Benefit.---The benefit must be direct and not indirect. Where certain works done by a railway company benefited owners of land and buildings, it could not be said that the Municipality benefited merely because it recovered taxes from the owners or occupiers of the property.

Remedies against wrong-doer.---Neither this section nor S. 69 refers in any way to remedies against wrong-doers.

Railway ordered by Provincial Government to widen culvert---It can claim the cost from the Municipality in which the culvert lies.---The Railway had made a culvert when the line was laid in the locality. But later on the recommendation of the Municipal Committee the Provincial Government passed orders in exercise of the special powers vested in them under clause (b) of subsection (3) of section 11 of the Indian Railways Act requiring the Railway to widen the ventway in the culvert to a depth of five feet and to a width of twenty feet at the costs of the Railway within six months from the date of the requisition. The Railway denied its liability, protested that the requisition was illegal and ultra vires, and asserted that it was only prepared to carry out the work without prejudice to its claim to be repaid the cost either by the Government or by the respondent or both.

After the completion of the work the Railway brought a suit against the Municipality for the cost of the work.

Held: The Railway executed the work for no other reason than that it was ordered to do so by the Government and presumably thought it polite to obey the order rather than challenge its validity. The respondents throughout denied its liability to meet any expense. It is true that the first suggestion of further protective works, which ultimately took the form (inter alia) of an enlargement of the culvert came from the respondent, but the Railway was left in no doubt, that, if it executed this work at the requisition of the Government, the respondent would not pay for it. It would be in their lordships' opinion, but an extravagant construction upon section 70 of Indian Contract Act to hold that in such circumstances the work was done by the Railway for the respondent. Nor does the respondent enjoy the benefit of the work except in an indirect sense substantially the persons who derive a benefit are the owners and occupiers of the buildings and land in the locality. The appeal was dismissed.

No enforceable contract---Person enjoying benefit from act of another must pay compensation---No interest payable on compensation.---The applicability of section 70 cannot be excluded by the mere fact that there is no enforceable contract. The relation Under this section is created by the fact that one person lawfully does something for another or delivers anything to him and by the fact that the other person enjoys the benefit thereof, and when the relation arises, the liability to make compensation or .to restore the thing delivered arises as a statutory liability not arising out of contract. The very purpose of the section is to lay down in what circumstances such a relation must be taken to exist, viz. in what circumstances the plaintiff may claim that his act hag directly created or. reasonably justified tile inference that he is entitled to compensation. However, a party which is allowed compensation under section 70 on equitable ground in a contract which is unenforceable being invalid, is not entitled to interest on the sum due from the other party.

Broker bringing buyer and seller together---Actual sale conducted by a person---Broker entitled to full commission.---If the relation of buyer and seller is fully brought about by the broker's act, he will be entitled to commission, although the actual sale has not been effected by him. A party cannot by employing another broker in the midst of negotiation, however innocently, deprive the broker of his remuneration.

Broker bringing together buyer and seller Subsequent change in terms of sale without his intervention---When broker is entitled to commission.---The Commission becomes due, if the broker has induced in the party for whom he acts, the contracting mind, the willingness to open negotiations upon a reasonable basis, even though a change or modification of the terms of the contracts is made by the buyer and seller without his intervention. The test in such cases is whether the broker who claims brokerage is the effective and efficient cause of the completion of the transaction the cause causans and not the causa sina qua non of the deal. If the transaction has resulted only as a casual and remote consequence of the broker's intervention, that would not be sufficient.

Negotiations commenced by broker completely ceasing---Broker cannot claim remuneration.

71. Responsibility of finder of goods.---A person who finds goods belonging to another and takes them into his custody, is subject to the same responsibility as a bailee.

The Penal Code (S. 403, Explanation 2) provides as follows :---

"A person who finds property not in the possession of any other person, and takes such property for the purpose of protecting it for, or of restoring it to, the owner, does not take or misappropriate it dishonestly, and is not guilty of an offence; but he is guilty of the offence above defined [criminal misappropriation of property], if he appropriates it to his own use, when he knows or has the means of discovering the owner, or before he has used reasonable means to discover and give notice to the owner and has kept the property a reasonable time to enable the owner to claim it.

"What are reasonable means or what is a reasonable time in such a case, is a question of fact.

"It is not necessary that the finder should know who is the owner of the property, or that any particular person is the owner of it; II is sufficient if, at the time of appropriating it, he does not believe it to be his own property, or in good faith believe that the real owner cannot be found."

72. Liability of person to whom money is paid or thing delivered, by mistake or under coercion.----A person to whom money has been paid, or anything delivered, by mistake or under coercion, must repay or return it.

Payment under mistake of fact or mistake of law.---The rule of the Common Law is that money paid under mistake or ignorance of fact may be recovered back where the supposed state of fact is such as to create a liability to pay the money, which in reality is not due," but a payment made under the influence of a mistake which does not create a supposed legal obligation, and which therefore as regards the motive of the party is voluntary, cannot be recovered back. In other words, the mistake is material only so far as it leads to the payment being made without consideration, and a wrong person not affecting the substance of the transaction itself is not a failure of consideration.

Mistake of law is not excluded by the words of this section and no distinction is made between mistake of law and mistake of fact. Although S. 21 does make such a distinction, this cannot affect the construction of S. 72. Their lordships of the Privy Council have said: "If a mistake of law has led to the formation of a contract, S. 21 enacts that that contract is not for that reason voidable. If money is paid under that contract, it cannot be said that the money was paid under mistake of law; it was paid because it was due under a valid contract, and if it had not been paid payment could have been enforced. Payment 'by mistake' in S. 72 must refer to a payment which was not legally due and which could not have been enforced; the 'mistake' is thinking that the money paid was due when in fact it was not due. There is nothing inconsistent in enacting on the one hand that if parties enter into a contract under mistake in law that contract must stand and is enforceable, but on the other hand that if one party acting under mistake of law pays to another party money which is not due by contract or otherwise, that money must be repaid. Moreover if the argument based on inconsistency with S. 21 were valid, a similar argument based on inconsistency with S. 22 would be valid and would lead to the conclusion that S. 72 does not even apply to mistake of fact. The argument submitted to their lordships was that S. 72 applies only if there is no subsisting contract between the person making the payment and the payee and that the Contract Act does not deal with tile case where there is a subsisting contract but the payment was not due under it. But there appears to their lordships to be no good reason for so limiting the scope of Act. Once it is established that the payment in question was not due, it appears to their lordships to be irrelevant to consider whether or not there was a contract between the parties under which some other sum was due. Thus, payment made by A to B upon a misconstruction of the terms of a lease, or misunderstanding of an official scale of charges, or under the mistaken belief that he is liable in respect of a municipal tax can be recovered back, and decisions to the contrary are no longer law. Deliberate disregard of law is not, however, mistake of law.

Every sum paid under mistake is not necessarily recoverable under all circumstances. There may in a particular Case be circumstances which disentitle a plaintiff from recovering on grounds of estoppel or otherwise. Similarly where A pays money to B who, A knows, is C's agent, trader a mistake, A is not entitled to recover the money from B, if before demand upon B, B has paid the amount to C, or if he. has not, has yet done some act to his own detriment as regards his principal. Misdescription by inadvertence of the account on which a payment is made may be deemed a mistake of fact (provided of course that the payee could not be honestly misled by it). Similarly, misdescription of parcels in an auction sale may be relieved against in a proper case even if the. sale was through the intervention of the Court.

A person falsely representing himself to be the owner of a house mortgaged the house to A for Rs. 2,000 and subsequently by a second mortgage to B for Rs. 3,500, and it was agreed between B and the mortgagor that out of this sum B should pay off A's mortgage. This was done, and the fraud being afterwards discovered, B sued A under S. 72 to recover the Rs. 2,000 so paid. It was held that the action must succeed. Leach C.J. expressed the opinion that it was not necessary to show privity between A and B in order to make S. 72 applicable, though in his view privity in fact existed between them. He said "I think that where money is paid to another under the influence of a mistake, that is, upon the supposition that a specific fact is true, which would entitle the other to the money, but which fact is untrue, and the money would not have been paid if it had been known to the payer that the fact was untrue, an action will lie to recover it back, and it is against conscience to retain it; though a demand may be necessary in those cases in which the party receiving may have been ignorant of the mistake....If, indeed, the money is intentionally paid, without reference to the truth or falsehood of the fact, the plaintiff meaning to waive all inquiry into it, and that the person receiving shall have the money at all events, whether the fact be true or false, the later is certainly entitled to retain it; but if it is paid under the impression of the truth of a fact which is untrue, it may, generally speaking, be recovered back, however, careless the party paying may have been, in omitting to use due diligence to inquire into the fact. In such a case the receiver was not entitled to it, nor intended to have it." This passage was latter cited with approval by Lord Shaw in the House of Lords, but it has been held that it does not give a true picture of the law of India, according to which the plaintiff may be disentitled to recover on the ground of estoppel, or because no more blame attaches to the defendant than to him and the defendant no longer retains the money. The payment must be made by mistake in order to attract the provisions of S. 72.

Coercion.---The Privy Council has laid down that the word "coercion" in this section is used in its general and ordinary sense and its meaning is not controlled by the definition of "coercion" in S. 15. Accordingly where A who had obtained a decree against B obtained an attachment against C's property, and took possession of it to obtain satisfaction for the amount of the decree, and C on being ousted from his property paid the sum claimed under protest, C was held entitled to
recover the sum as money paid under "coercion" within the meaning of this section.

Where a plaintiff has a statutory right to recover money under this section, his claim Should not be rejected on the ground that, upon a consideration of the whole circumstances, it is not equitable that the money should be repaid.

Moneys paid under legal compulsion.---Money paid under compulsion, or even under pressure, of legal process cannot be recovered. Thus, where the Official Assignee in insolvency proceedings pays a creditor under the directions of the Court, he is not entitled to recover it under this section on the ground that the payment was made by mistake.

The cases where money is deposited to have a sale set aside under O. XXI, r. 89, Civil Procedure Code, may be conveniently considered in this place. There has been a conflict of decisions on the question whether money so deposited can be recovered by the person making the deposit from the decree holder. The High Court of Bombay took the view that it was not recoverable, though one of the judges indicated that, if the matter had been res integra, he might have decided otherwise.

Wrongful payment.---There is a class of cases which, though not directly bearing on this section, may be conveniently dealt with in this place. They are cases where money is paid in execution of a decree, and it is sought to recover back the amount on the reversal of the decree. In such a case the payment, though in the first instance lawful; becomes wrongful on the reversal of the decree. The rule of law on this subject is that money paid under a decree cannot be recovered back in a fresh suit whilst the decree remains in force. But if the decree is reversed or superseded the amount paid under it is recoverable. And it has been held in effect by the Privy Council that a decree will be deemed to be superseded, though not actually reversed, if it was made pending an appeal to a higher Court from an antecedent decree on the same cause of action, and the latter decree is reversed by the appellate Court, and the order of reversal was intended to deal with all the rights and liabilities of the parties under it, the principle being that where the main decree which is the basis of subsequent decrees is reversed the latter decrees, being subordinate and dependent decrees, are superseded. See Code of Civil Procedure, 1908, S. 144.

Compare S. 86 of the Trusts Act, 1882, which provides that where property is transferred in pursuance of a contract which is liable to recission, or induced by fraud or mistake, the transferee must, on receiving notice to that effect, hold the property for the benefit of the transferor, subject to repayment by the latter of the consideration actually paid.

Assessment of damages---Survey report, produced by carrier (defendant) giving valuation of consignment---Such valuation reproduction of information contained in invoice---No cross-examination directed by carrier on question as to such valuation not reflecting correct value---Held, survey report a piece of evidence on record which can be relied upon for purpose of determining value of consignment.

Finder of goods in subject to same responsibility as a bailee u/s. 70---Right of finder of goods to sell goods for his charges circumscribed by S. 150.

Amount paid to K.D.A. under mistake of fact by fraud practised on payee---Claim for refund decreed.

Money paid to a bank under a mistake that plaintiff was getting genuine share scrips and transfer forms which turned out to be ungenuine---Can be recovered from bank by resort to S. 72---Questions whether recourse can be made to S. 20 and whether S. 65 can be pressed into service left undetermined as not being free from doubt and for reason that case did not require any decision on these questions.

Monopoly holder increasing rates---Provisions for Increase of rates after negotiations, present in contract---Doctrine of coercion not applicable as both parties knew of monopoly when they entered into agreement.---When it was urged that though the consumer had agreed to incorporate in the contract a term that the gas supply company may increase the rate in certain circumstances yet he was not bound by such agreement and subsequent increase in rates because the gas supply company being a monopoly holder could coerce him into agreeing to increase in rates. Held: The doctrine of coercion embodied in section 72 of the Contract Act, does not appear to be available to the plaintiffs in this case for the reason that they were fully aware of the respective circumstances of the parties, when they entered into negotiations for the conversions of their furnaces from oil to natural gas. it was known, right from the start, that the Sui Gas Company had the monopoly in the field, in the circumstances the doctrine of coercion cannot be invoked.

Act done on request of another---Section not applicable.

Milling rates---Power to fix, vests by statute in Controller of Flour Mills---Contractor cannot claim rates other than those fixed by Controller.---There can be no question of an implied contract where the milling charges are fixed under statutory powers. The power to fix milling charges for milling wheat had been vested in the Controller of Flour Mills under paragraph 4 of the Flour Mills Control Order, 1950 made trader section 3 of the Essential Supplies (Temporary Powers) Act, 1946. Under it, every producer was required to comply with the directions of the Controller regarding the production, sale and delivery of wheat products as also tile fixation of milling charges, anti any producer who was aggrieved lay such directions, had a right of appeal to the Central Government under paragraph 10 of the said Order. The Court cannot review the reasonableness of the milling charges duly fixed under the law in a suit like the present for to do so would be to substitute the Court’s view of reasonableness for that of the authority concerned.

Enhanced rent paid by tenant of transferred evacuee property in consideration for a promise that he won't be ejected after the period of protection---Landlord giving notice of ejectment before expiry of period of protection---Tenant justified in refusing to pay enhanced rent under the contract---Ejectment for non-payment of rent not justified.---Where the tenant of a transferred evacuee properly agreed to pay double the rent for which he was liable and the consideration for the agreement was the promise of the landlord not to eject the tenant after the statutory period of protection. But even before the expiry of the period of statutory protection, the landlord served a notice of ejectment on the tenant. The tenant contended that he was not liable to be evicted because the landlord had undertaken not to eject him in consideration of the enhanced rent. If he wants to go back on the contract he can do so only either by refunding the extra rent he has charged or by adjusting it in the future rent.

Held: In such circumstances, section 72 of tile Contract Act would apply and the other contracting party would be absolved from performing his part of the contract, and if he had done anything or paid anything in pursuance of that contract, then he would be entitled to ask for restitution and reversion to the position quo ante. The respondent cannot be allowed to claim inconsistent rights in the manner in which he is doing in the present case. If he accepts the higher rent and treats the tenant as not a statutory tenant but a contractual one, then he must abide by his contract. He cannot unilaterally resile back to the position under section 30 and treat the tenant as a person who has been deprived of the protection thereunder and thus become liable to eviction. If the landlord repudiated the contract and elected to treat the tenant as a statutory tenant under section 30, then the tenant could not be treated as a defaulter save in accordance with the provisions of the said section. His liability under the said section was only to pay rent at the rate of the last Municipal assessment. But since he had paid for 15 months at double the rate he is entitled to the excess amount paid or to an adjustment thereof against future rents before he could be treated as a defaulter. Therefore the appellant was neither a defaulter nor had he lost the protection given to him by section 30 of the Act.

Mistake---Meaning of---Contract legal and valid but no payment due under it---If payment in such a case would be covered by the section.---It was argued that section 72 only applies if there is no subsisting contract between the person making payment and the payee, and that the Indian Contract Act does not deal with the cases where there is a subsisting contract but the payment was not due under it.

Held; Once it is established that the payment in question was not due, it appears to their Lordships to be irrelevant to consider whether or not there was a contract between the parties under which some other sum was due.

Held further: If a mistake of law has led to the formation of contract, section 21 enacts that the contract is not for that reason voidable. If money is paid under that contract it cannot be said that money was paid under mistake of law; it was paid because it was due under h valid contract, and if it had not been paid payment could have been enforced. Payment "by mistake" in section 72 must refer to a payment which was not legally due and which could not have been enforced. The "mistake" in thinking that the money paid was due when in fact it was not due. There is nothing inconsistent in enacting on the one hand that if parties enter into contract under a mistake of law that contract must stand and is enforceable but on the other hand that if one party acting under mistake of law pays to another party money which is not due by contract or otherwise, that money must be repaid. Moreover, if the argument based on inconsistency with section 21 were valid, a similar argument based on inconsistency with section 22 would be valid and would lead to the conclusion that section 72 does not even apply to mistake of fact.

Money paid although it was not due Hit by S. 72. The payment made under a subsisting contract was not due.

Held: The plaintiff may have acted on inadequate information, they may have taken a wrong view of their legal rights or they may have continued paying at the old rates without giving any thought la the matter. But it is clear that there was no intention to make a present to the lessor of money which was not due. The money was paid under the belief that it was legally due. The belief was mistaken. In their Lordship's view that is sufficient In bring the case within section 72.

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