(25), The learned Judges were of opinion that S.

39 would not apply to a case like the present one

where the sale was executed by a person claiming title adverse to that of Vinayagam Pillai, and
therefore, the court would have no jurisdiction under S. 41 to direct payment of compensation by
the plaintiff to the appellant before obtaining relief as to possession. To hold otherwise would
mean that a mere volunteer who paid the debt of the plaintiff would be able to recover the same.
(26) The learned Judges proceeded further to point out that the question whether the appellant
would be entitled to be paid back his moneys on any principle like salvage, unjust enrichment or
under the provisions of Ss. 69 and 70 of the Contract Act had still to be considered before the
appeal could be finally disposed of. and the learned Chief Justice has directed this appeal to be
posted before me.
(27) I have been taken through the records by the learned advocates on both sides before me. 1
have not the slightest doubt in coming to the conclusion that this is a case of unjust enrichment,
and that the plaintiffs are bound to reimburse the second defendant in a sum of Rs. 900. In this
case all the requirements for granting relief under the doctrine of unjust enrichment stand fully
made out. The consideration which D-2 paid went to avert the sale of the land for the decree debt
of Vinayagam Pillai, It stands to reason that when the plaintiffs wanted to take possession of the
land, they must pay the debt which that land was bound to satisfy by reason of it being the decree
debt of Vinayagam Pillai. It is also seen that the plaintiffs in the execution proceedings have taken
time for payment of the amount. Therefore, the plaintiffs cannot be allowed to blow hot and cold
and play fast and loose and assume different postures in the course of the same proceedings or
even in subsequent proceedings which directly arose from the previous suit.
(28) This doctrine of unjust enrichment has been the subject matter of three decisions of this
court namely, Paboodan Goolabchand v. M.J.V. Miller. 1938-2 Mad LJ 688 : (AIR 1938 Mad 966),
Mahalingam Chettiar v. Ramanathan Chettiar, Appeal No. 665 of 1948 (Mad) and Govindarajulu
Naidu v. S. S. Naidu, 1958-2 Mad LJ 148, wherein I have dealt with the entire case law and the
settled principles in England, America and India and reproduced the following :
"The doctrine of restitution may now be summed up in the language of the American Re-
statement of the Law of "Restitution" in Ch. 1 S. 1 at page 12 and following. A person who has
been unjustly enriched at the expense of another is required to make restitution to the other. A
person is enriched if he has received a benefit. A person confers a benefit upon another if he gives
to the other possession of or some other interest in money, land, chattels, or choses in action,
performs services beneficial to or at the request of the other, satisfies a debt or a duty of the
other, or in any way adds to the other's security or advantage-saves the other from expenses or
loss. The word "benefits" therefore denotes any form of advantage ...... Even where a person has
received a benefit from another he is liable to pay therefor only if the circumstances of its receipt
or retention are such that, as between the two persons, it is unjust for him to retain it. The mere
fact that a person benefits another is not of itself sufficient to require the other to make restitution
therefor ...... Ordinarily the benefit to the one and the loss to the other are co-extensive, and the
result of the remedies given under the rules stated in the restatement of this subject is to compel
the one to surrender the benefit which he has received and thereby to make restitution to the
other for the loss which he has suffered ...... Where benefit and loss do not coincide the amount of
recovery is usually limited to the amount by which he has been benefited ...... A person who
officiously
confers a benefit upon another is not entitled to restitution therefor."
(29) This is certainly not a case of a person who conferred a benefit upon another officiously and
is therefore not entitled to restitution therefor.
(30) In addition to these three decisions, the learned Advocate, Mr. Vaidheeswaran, brings to my
notice the decision of the Privy Council in Govinda-ram Gordhandas v. State of Gondal, 1950 -2
Mad LJ 1: (AIR 1950 PC 99), wherein it is laid down: the words "bound by law to pay" in S. 69 of
the Contract Act do not exclude those obligations of law which arise inter partes whether by
contract or tort and is not confined only to those public duties which are imposed by statute or
general law. They extend to any obligation which is an effective bond in law.
(31) It is not correct to say that a person could not be "interested in the payment of money"
within the meaning of S. 69 of the Contract Act unless he was at the same time entitled to some
legal interest in the property in respect of which such payment might be made. 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 respect of which the payment is made.
(32) S had become the purchaser of certain mills and was handed over possession on 9-9-1937.
On 29-11-1937, S entered into an agreement by way of sub-sale with a company under which he
agreed to sell the mills to the company at the same price as that at which he bought them. Before
that date, it was found that large amounts were outstanding in respect of municipal taxes on the
mills and in spite of correspondence between the original owners and S and the company which
purchased from him, the latter company was forced to pay that sum to avoid legal proceedings for
the enforcement of the statutory charge. In a suit by the company and its vendor against the
original owners for the recovery of the sum so paid,
Held: the payment made can in no sense be said to be voluntary one. The company had
contracted to buy the mills and they were imminently threatened with a forced sale which would
defeat its purchase. No one was disposed to pay the taxes due and so the company paid. To
describe it in such circumstances as having made a voluntary payment) would involve some
misuse of language. The company was also interested in the payment of taxes though the actual
sale deed in their favour was executed subsequently.
(33) The net result of this analysis is that the decrees and judgments of the lower Courts have to
be modified, and the plaintiffs, before recovering possession of the land, will have to reimburse
the 2nd defendant in a sum of Rs. 900. I am not providing for interests, because the 2nd
defendant had been in enjoyment of the land, and mesne profits and interest can be equated. The
decrees and judgments of the lower Courts will stand modified accordingly.
(34) This second appeal is allowed with costs.