Judgement Consolidated Appeals (Nos.24 and 25 of 1947) from two decrees of the High Law Rep. 77 Ind. App. 156( 1949- 1950) Govindram Gordhandas Seksaria v. State of Gondal 262 Court in its appellate jurisdiction (November 8, 1943). The first of those decrees reversed a judgment against the respondent the State of Gondal in favour of the present appellants which had been given by the High Court in its ordinary original civil jurisdiction (January 15, 1943); the second decree dismissed an appeal by those appellants from the same judgment in so far as it rejected their claim in the suit against the second and third respondents. The following introductory statement is taken from the judgment of the Judicial Committee. The facts out of which this litigation arose were simple and they had produced no material divergence of view in the courts in India. The real question was how the law should be applied to those facts. All that it was necessary to notice might be briefly set out as follows On October 1, 19,26, a limited company called The Currimbhoy Mills Co., Ld., 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 (hereinafter referred 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 Maharaja; (hereinafter referred to as the Maharaja"), 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 seemed, 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 personal representatives were 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 Maharaja 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. 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 Maharaja 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 Maharajas 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 Maharaja 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 th 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 was 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 that point. In those circumstances their Lordships of the Board were 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 April 1, 1933, and covering not only the general tax but water-charge as well. Statements enclosed with the letter showed unpaid taxes to the amount stated going back to April 1, 1933, and covering not only the general tax but water-charge as well. From that date until February 23, 1939, 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 Maharaja and the trustees, the Assessor and Collector of the Bombay Municipality and, at a late stage, Messrs. Crawford Bayley & Co., his solicitors. Out of that correspondence certain facts appealed clearly enough. Firstly, no one disputed that there were unpaid municipal taxes Law Rep. 77 Ind. App. 156( 1949- 1950) Govindram Gordhandas Seksaria v. State of Gondal 263 due in respect of the mills, but Messrs. Craigie, Blunt & Caroe raised the point that the assesments 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 vendors not the purchasers account, and asked for it to be discharged accordingly. Mr. Seksaria himself addressed a long and reasoned letter to the Maharaja 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." That 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 was quite clear from some of the letters that they did in fact, no doubt rightly, regard them as so liable. Fourthly, neither the Maharaja 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. Fourthly, neither the Maharaja 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 connexion 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 on the property. Eventually, on February 23, 1939, after further requests for payment by the Maharaja or the trustees had proved unavailing, the appellant company paid the Municipality the sum of Rs. 78,466.12 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 that deed as a confirming party. The recitals to the deed—inaccurately, but no doubt immaterially —stated that Mr. Seksaria had contracted with the trustees for the purchase of the mills for Rs. 12,50,000 and had paid that sum to them. The recitals also mentioned the sub-sale by Mr. Seksaria to the (appellant company. 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 sum of Rs. 77,522.6 (being so much of the sum of Rs. 78,466.12 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 Maharaja 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 Maharaja. The basis of the learned judges view was that the Maharaja had made a contract with Mr. 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 Maharaja. The basis of the learned judges view was that the Maharaja had made a contract with Mr. Seksaria into which were imported by law the pro visions of s. 55 of the Transfer of Property Act. The result of that was to impose on 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 those taxes, the learned judge interpreted the sub-sale to the appellant company as being an actual sale of Mr. Seksarias contractual rights against the Maharaja 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 Maharajas 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 Maharaja. 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 that 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 Maharajas appeal Law Rep. 77 Ind. App. 156( 1949- 1950) Govindram Gordhandas Seksaria v. State of Gondal 264 was allowed. By two decrees dated November 8, 1943 (the decrees that were now under appeal), 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, Stone C.J. and Kania, J., came to substantially the same conclusion. They held that Mr. Seksaria had no right of action against the Maharaja on the contract of sale because Mr. Seksaria had suffered no damage from the Maharajas breach of contract in not paying off the taxes. He, Mr. Seksaria, had not found the money to make the payment. They held that Mr. Seksaria had no right of action against the Maharaja on the contract of sale because Mr. Seksaria had suffered no damage from the Maharajas 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 Maharaja, 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 recognized in the mill property prevented any right arising under s. 69 of the Contract Act. For some reason which was not clear to their Lordships of the Board, the learned judges appeared 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 regarded any ,claim against the trustees, the learned judges considered that no relevant obligation was imposed on 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 Kania J. seemed 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. By s. 86 of the Code of Civil Procedure, 1908 "(1.) Any such Prime or Chief....may....with the consent of the Crown Representative, certified by the signature of "the Political Secretary....but not without such consent, be sued in any competent Court. "(2.) Such consent may be given with respect to a specified suit or to several specified suits, or with respect to all suits of a specified class or classes, and may specify, in the ease of any suit or class of suits, the Court in which the Prince, Chief, ....may be sued; but it shall not be given unless it appears to the consenting authority that the Prince, Chief.... "(a) has instituted a suit in Court against the person desiring to sue him, or "(b) by himself or another trades within the local limits of the jurisdiction of the Court, or "(c) is in possession of immovable property situate within those limits and is to be sued with reference to such property or for money charged thereon." By s. 55 of the Transfer of Property Act, 1882 In the absence of a contract to the contrary, the buyer and the seller of immovable property respectively are subject to the liabilities, and have the rights, mentioned in the rules next following, or such of them as are applicable to the property sold. "(1) The seller is bound .... “(g) to pay all public charges and rent accrued due in respect of the property up to the date of sale, the interest on all incumbrances on such property due on such date, and, except where the property is sold subject to incumbrances, to discharge all incumbrances on the property then existing." By s. 69 of the Indian Contract Act, 1872; 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." Law Rep. 77 Ind. App. 156( 1949- 1950) Govindram Gordhandas Seksaria v. State of Gondal “By s. 146 of the City of Bombay Municipal Act, 1888 (1.) Property taxes shall be leviable primarily from the actual occupier of the premises upon which the said taxes are assessed, if such occupier holds the said premises immediately from Government or from the corporation or from a fazendar. "(2.) Otherwise the said taxes shall be primarily leviable as follows, namely— "(a) if the premises are let, from the lessor; "(b) if the premises are sub-let, from the superior lessor; "(c) if the premises are unlet, from the person in whom the right to let the same vests." 1949. Dec. 1, 5, 6 and 7. Pritt K.C., Sir Thomas Strongman K.C. and R. J. T. Gibson for the appellants. Pritt K.C outlined the history of the case and dealt with the facts, the pleadings, the documentary evidence and the judgments of the courts below. The debenture debt was Rs. 20, 00,000 and the property was worth, presumably, Rs. Dec. 1, 5, 6 and 7. Pritt K.C., Sir Thomas Strongman K.C. and R. J. T. Gibson for the appellants. Pritt K.C outlined the history of the case and dealt with the facts, the pleadings, the documentary evidence and the judgments of the courts below. The debenture debt was Rs. 20, 00,000 and the property was worth, presumably, Rs. 12,50,000 so that the respondent trustees, it is submitted, were bare trustees for the Maharaja of the State of Gondal, and it is impossible in substance or in equity to distinguish between them for the present purposes. The main questions arising are first, whether so far as the Maharaja is concerned, this suit was competent in view of the provisions of s. 86 of the Code of Civil Procedure, the contentions of the Maharaja being (i.) that he Crown Representative was not in the circumstances entitled to give the consent contemplated by the section, and (ii.) that, even if he were, the consent in fact given did not cover this suit. Secondly, whether by the law applicable to this case, and in particular that contained in s. 55 of the Transfer of Property Act, either the purchaser or the sub-purchaser of the mills under the contract of sale is entitled to recover from the vendor (the Maharaja) or the persons actually conveying the property (the trustees) the amount of the arrears of municipal taxes due in respect of periods before the sale and still unpaid when the purchaser went into possession of the property, which arrears being by law charged on the property, were paid by the sub-purchaser to the Municipality under pressure from that body. Thirdly, whether by virtue of s. 69 of the Contract Act the sub-purchaser, having paid the taxes, is entitled to recover the amount thereof from the Maharaja or from the trustees as being persons who were bound by law to pay those arrears. Sir Thomas Strangman K.C. There is no doubt that the trustees were bare trustees and were bound to do as the Maharaja told them with regard to the sale, so from the practical point of view they were really one. There is no doubt that as between Seksaria and the Maharaja the latter was bound to pay the taxes up to September 9, 1937. There is no doubt that as between Seksaria and the Maharaja the latter was bound to pay the taxes up to September 9, 1937. That argument is based in the first place on the Transfer of Property Act, s. 55, sub-s.1 (g), of which says that the seller is bound to pay all public charges accrued due; it does not say that he is to pay any particular person, but he has to put down that-particular amount of money to discharge the dues. As between Seksaria and the Maharaja the latter was bound to pay, and it does not make any difference that the Maharaja agreed to transfer to the second appellant—the company. It does not complicate the situation in any way, except as affording an answer to the argument that the first appellant had suffered no damage. The respondent trustees are also liable. They would be liable if they were treated as the sellers. The argument has proceeded on the footing that the Maharaja was the seller, and on that view the trustees would not be liable to Seksaria, but it is submitted that in view of the term of the letter of the trustees solicitors before the sale by the Maharaja, which had treated the trustees as liable to pay, and having regard to their position as bare trustees for the Maharaja, it would have been unsafe for the appellants not to have joined them as parties, and in those circumstances they were right in doing so. Furthermore, the trial judge was right in the order that he made with regard to the costs— that the appellants should be at liberty to add the costs payable by them to the trustees to those awarded to them against the Law Rep. 77 Ind. App. 156( 1949- 1950) Govindram Gordhandas Seksaria v. State of Gondal 266 Maharaja. The question whether the appellant company is entitled to succeed against the trustees depends on two questions arising under s. 69 of the Contract Act the first being, were the trustees bound to pay the taxes up to September 9, 1937 and the second, was the appellant company" interested in the payment of those taxes? Whether the trustees were bound to pay depends on s. 146 of the City of Bombay Municipal Act, 1888. Whether the trustees were bound to pay depends on s. 146 of the City of Bombay Municipal Act, 1888. There is nothing in that section which would exculpate the trustees from liability for taxes up to September 9, 1937, and accordingly they continued to be liable. That section deals only with the position as between the Municipality and the person primarily liable to pay; it does not deal with the rights and liabilities inter se of persons who may be affected. On the second question, whether the appellant company was interested in the payment of these taxes, the company agreed to buy from Seksaria presumably because it wanted the mills; and it had a right to enforce; specific performance of that contract against him. Section 60 of the Contract Act is a perfectly general section, and is not limited to the type of cases set out in the illustration to the section. It is not necessary for a person to be interested in the payment that he should have a proprietary interest in the property; it is sufficient if he believes that he has an interest in the payment Munni Bibi v. Tirloki Nath (( 1931) I. L. R. 54 A. 140,142); Dakshina Mohan Roy Chowdhry v. Saroda Mohan Roy Chowdhry (( 1893) L. R. 20 I. A. 160, 163.). What the appellant company did was to pay the money to preserve its rights under a contract of which it could obtain specific performance. Reading s. 69 in its natural sense there can be little doubt that it directly covers this case. Lastly, there is nothing in the contract which would exclude s. 55, sub-s. (1) (g), of the Transfer of Property Act, which must be deemed to be included in the contract. Khambatta K.C., Jopling and Jayakar for the State of Gondal by the Maharaja. The first answer to the argument that s.55, sub-s.1 (g), of the Transfer of Property Act applies is that that submission is based on a misconception of the rights and liabilities of the first appellant and the Maharaja under the contract for sale. There has been here a confusion in not keeping the four parties separate and distinct. The first answer to the argument that s.55, sub-s.1 (g), of the Transfer of Property Act applies is that that submission is based on a misconception of the rights and liabilities of the first appellant and the Maharaja under the contract for sale. There has been here a confusion in not keeping the four parties separate and distinct. The only right and liability under this contract is the right that is fixed by the Specific Relief Act, s. 18 (6), where the vendor with the imperfect title is bound at the suit of the purchaser to compel the person who is competent to transfer to make that transfer. It is submitted that s. 55 of the Transfer of Property Act does not apply. Alternatively, assuming that s. 55 does apply to the contract of sale, then on the proper construction of the relevant correspondence in which the terms of the contract are to be found there is an implied term that the price to be paid was a net price, and that there should be no appartionment of rents, rates, taxes and outgoings between the first appellant and the Maharaja, and therefore there was a contract to the contrary within the meaning of s. 55 of the Act. If the contract of sale is to be found only in the letter of September 1, 1937, then the proper course for the purchaser was to have made his requisitions before completing to satisfy himself of the title. Before completion he discovered the incumbrance, and he disputed his1 liability for it, but he did not rescind his contract and claim damages, as he could have done. He discharged the incumbrance and then completed, and said nothing about it in the conveyance; he cannot now on that conveyance fall back on his rights under s. 55, sub-s. 1 ({/) Bidhubhwshan Pal Chaudhuri v. Umeschandra Banerji (( 1929) I.L.R. 57 C. 683, 688-90.). Then, assuming both those points against the Maharaja—that s. 55 does apply, and that there is no contract to the contrary—the question of damages remains. It is submitted that the damage must be damage actually suffered, not likely to be, or which might be, suffered. Under s. G9 of the Contract Act it is the actual payment. Here the money was not paid by the first appellant, and he cannot come within s. 69. It is submitted that the damage must be damage actually suffered, not likely to be, or which might be, suffered. Under s. G9 of the Contract Act it is the actual payment. Here the money was not paid by the first appellant, and he cannot come within s. 69. The only person to whom loss or damage has been caused would be the second appellant, but that is another matter. The first appellant is not entitled to relief under s. 69. On the facts of this case the only consistent explanation of his taking the conveyance in this form is that it was the clear intention of the parties that there was, on the question of the payment of these taxes, a contract to the contrary. With regard to the jurisdiction point—whether the suit was competent as against the Maharaja—the Law Rep. 77 Ind. App. 156( 1949- 1950) Govindram Gordhandas Seksaria v. State of Gondal 267 question is as to the validity of the consent that was given. The Maharaja was never "in possession of immovable property" within sub-s. 2 (c) of s. 86—he was never at any material time in actual or constructive possession of the property; it was the trustees who were. There is nothing in the consent to indicate whether it was granted under {a), (b) or (c) of sub-s.2 of s. 86. The objection to jurisdiction is on one or both of the following grounds (i.) That the consent does1 not set out on its face the requirements necessary for its validity; (ii.) alternatively, because it is clear on the record that none of the conditions precedent in (a), (b) or (c) could apply in this case. The Indian authorities are consistent to the effect that the court can inquire into the sanction. On the first ground reliance is placed on Gokulchand Dwarkadas Morarka v. The King (( 1948) L. R. 75 I. A. 30.) and Rex v. Halliday ([ 1917] A. C. 260, 273.). The court can go behind the sanction to see if the conditions precedent in a case of this nature have been fulfilled. On the first ground reliance is placed on Gokulchand Dwarkadas Morarka v. The King (( 1948) L. R. 75 I. A. 30.) and Rex v. Halliday ([ 1917] A. C. 260, 273.). The court can go behind the sanction to see if the conditions precedent in a case of this nature have been fulfilled. The initial burden of proof under s. 86, assuming that the court can go behind the sanction, must be on the first appellant to show that these facts did exist, and it if then open to the Maharaja to show that they could not have existed; [On this, jurisdiction point reference was made to Beer Chunder Manikkya v. Raj Coomar Nobodeep Chunder Deb Burmono (( 1883) I. L. R. 9 C. 535, 554, 556.), Maharaja of Jaipur v. Lalji Shai (( 1907) I. L. R. 29 A. 379.) Narayanan Moothad v. The Cochin Sircar (( 1913) I. L. R. 38 M. 635.), Mohammad Raza v. Kapurthala Estate (( 1935) A.I.R. (Oudh) 164.), Official Liquidators, Dehra Dun-Mussoorie Electric Tramway Co. v. Nabha State (( 1936) I.L.R. 58 A. 742, 747—8.), Gaekwar Baroda State Railway v. Hafiz Habib-ul-Haq (( 1938) L.R. 65 I.A. 182, 189.), and Eshughayi Eleko v. Government of Nigeria (Officer Administrating) ([ 1931] A. C. 662, 670-1.)] If the consent is not open to challenge in the courts, then the immunity enjoyed by the Chiefs and Princes may be lost. The court, if so satisfied, can say that the conditions which the first appellant alleges exist, do not exist. The courts below had no jurisdiction to entertain the suit against the Maharaja. Jopling followed. The position before the contract was made was that in 1926 the Maharaja had taken a debenture for Rs. 20 lacs, issued by a company. In 1933 the company had gone into dissolution and the trustees went into possession. In 1937 the question of the present contract negotiations began. If one looks at the first two letters, what the Maharaja was saying was that he wanted Rs. 12,50,000 clear, and that the purchaser could have immediate possession if he paid it.. It should be assumed that everybody was acting in good faith until there is some strong evidence to the contrary. With, regard to damages, they were not pleaded. If one looks at the first two letters, what the Maharaja was saying was that he wanted Rs. 12,50,000 clear, and that the purchaser could have immediate possession if he paid it.. It should be assumed that everybody was acting in good faith until there is some strong evidence to the contrary. With, regard to damages, they were not pleaded. Whether or not the Maharaja was bound by law to pay the first appellant, he was not bound by law to pay the money which was paid by the second appellant to the municipality. As to jurisdiction, s. 86 of the Code confers an absolute privilege on ruling princes unless they do one of the three things set out in (a), (b) and (c) of sub-s. 2. It is only by doing one of those things that they can possibly bring themselves within the liability of being sued in the courts. That being so, it is submitted that the courts, in the interests of justice, will inquire very closely whether they have got themselves within one of the provisions. The burden is on the plaintiff. There is no question of discretion; this is a question of fact which has to be judged. It must be wrong to say that the Maharaja was an possession when it is alleged in the plaint tha the trustees had gone into possession. The object of the section is to protect the Princes unless they do one of these three things, and they are matters easily determinable by the court. There, can be no objection to the court looking into them, and it ought to do so in the way in which it has treated similar executive acts in other cases Liversidge v. Sir John Anderson ([ 1942] A.C. 206, 210-19.). Exactly the same principles apply to the words in s. 86; the court could inquire whether it was reasonable to say that it appeared to the consenting authority, etc. There is no difficulty in the court determining a matter of this kind, even if it has to determine the appearance. In this case it is quite plain that the certificate has been given by mistake. Sir Herbert Cunliffe K.C. and Ralph Parikh for the trustees for the debenture holder. There are two judgments below to the effect that the trustees were not the contracting parties, and they should stand. Law Rep. 77 Ind. App. In this case it is quite plain that the certificate has been given by mistake. Sir Herbert Cunliffe K.C. and Ralph Parikh for the trustees for the debenture holder. There are two judgments below to the effect that the trustees were not the contracting parties, and they should stand. Law Rep. 77 Ind. App. 156( 1949- 1950) Govindram Gordhandas Seksaria v. State of Gondal 268 There has been no misconduct of any kind on their part; they simply did throughout what they were obliged to do, and in those circumstances it would be a great hardship on them to be rendered liable in any respect. The contract was made entirely behind the backs of the trustees—they were not as trustees consulted about it at all. The appellants have been saying all along that the contracting parties were the Maharaja and Seksaria. From the very start it was the Maharaja who was contracting and directing the trustees, and there is no indication that they exercised any volition of their own they should not be subject to any penalty or punishment or damages in this case. The dispute has resolved itself into whether Seksaria was entitled to a conveyance free from all incumbrances as against the Maharaja, or whether he was to pay Rs. 12,50,000 and to take it subject to whatever incumbrances there were. The trustees had no part or lot in that contract, and if the case is to be decided on the ground that the Maharaja contracted to sell the property to Seksaria free from incumbrances the trustees should not be1 held liable to pay damages for his failure to fulfil his contract. If the trustees are not liable on the contract it was suggested that under s. 69 of the Contract Act they are liable because the appellant company, to which Seksaria sold, was a person interested in the payment and has made a payment for which the trustees were liable. It is submitted that the appellant company was not interested in the payment of the taxes, and had no right against the trustees or against the property; the companys only right was to sue Seksaria for damages if he did not get a conveyance to them. The company had no (interest at all in the payment of the taxes, and it has not been established that the trustees were liable for them. The company had no (interest at all in the payment of the taxes, and it has not been established that the trustees were liable for them. Possession is one thing, actual occupation is another, and under s. 146 of the City of Bombay Municipal Act, 1888, it is the occupier, not the person entitled to possession, who has to make the payment. If s. 146 applies to this case the actual occupier was Brady & Co., who were acting as the trustees agents, and not the trustees. Next, with regard to sub-head (c) of sub-s.2 of s. 146, which alone might be applicable here, the trustees cannot be said to be the persons in whom the right to let the property vests1. Assuming that they do come under (c), one has to know what were their powers and duties under the trust deed there is only one clause under which it could be said that they were persons entitled to let but they could only let for the purposes of carrying on the business; they could not let in the ordinary sense; they had no power to let as contemplated by s. 146 sub-s. 2. It is not established that the trustees were liable for these taxes. Pritt K.C., in reply, was not required to deal with the question of jurisdiction. The provisions of s. 55 of the Transfer of Property Act made it a term of the contract that the Maharaja should pay the sum involved. It is plain on the true construction of the contract that the parties were contracting that the Maharaja should pay the taxes, and accepted the task of clearing the title of incumbrances up to September 9, 1937. Up to that point it is a simple case. The question then is whether the first appellant has suffered any damages for which he could sue. It is submitted that the true measure of damages should be dealt with rather on the analogy of the sale of goods—the difference between the property contracted to be sold and the property as in truth delivered. [Reference was made to Smith and Snipes Hall Farm, Ld. v. River Douglas Catchment Board ([ 1949] 2 K. B. 500, 513.), and In re Schebsman, Deed. Ex parte The Official Receiver, The Trustee v. Cargo Superintendents (London), Ld. and Schebsman ([ 1943] Ch. 366 [ 1944] Ch. [Reference was made to Smith and Snipes Hall Farm, Ld. v. River Douglas Catchment Board ([ 1949] 2 K. B. 500, 513.), and In re Schebsman, Deed. Ex parte The Official Receiver, The Trustee v. Cargo Superintendents (London), Ld. and Schebsman ([ 1943] Ch. 366 [ 1944] Ch. 83, 89.).] Seksaria can sue and collect the money as trustee for his nominee, the appellant company Allen v. Waters & Co. ([ 1935] 1 K. B. 200, 205.); Lloyds v. Harper (( 1880) 16 Ch. D. 290.); Prudential Staff Union v. Hall ([ 1947] K. B. 685.). The case for the second appellant against the Maharaja can be put by saying, first, that the Maharaja was bound by law to pay this money, and secondly, that the second appellant having an interest in the payment in order to keep the property, has paid it, and thirdly, that therefore the second appellant has a perfectly good claim against the Maharaja under s. 69 of the Contract Act. (The second appellant can show a perfectly good cause of action against the Maharaja under s. 69 because the Maharaja is bound by law in the sense that he is bound under a contract Law Rep. 77 Ind. App. 156( 1949- 1950) Govindram Gordhandas Seksaria v. State of Gondal 269 which can be enforced against him at law by the first appellant, and that is enough. With regard to the respondent trustees, the essence of the case against them is that the second appellant says, you, the trustees, are bound to pay this money by law because there is a statutory liability on you to pay it to the Bombay Municipality, and I was interested in the payment for the reasons given." The case can really be put under s. 146, sub-s. 1, or sub-s. 2 (c) they were the occupiers, and secondly, they had actually let a small part of the premises. Assuming that they were occupiers, they were primarily liable for the taxes; nothing has occurred to discharge them, (and there is nothing else in the Act which helps them. The true position at that time was that the Bombay Municipality, if it had sought to collect these taxes, would and should have sued the trustees and would and should have sought to get a charge on the land. The true position at that time was that the Bombay Municipality, if it had sought to collect these taxes, would and should have sued the trustees and would and should have sought to get a charge on the land. So all that the second appellant has to do is to show that the trustees were in occupation. The contention that they were not has very little to support it. The question really turns on whether Brady & Co. were acting for the trustees or independently; if they were occupying on the trustees behalf then their occupation was that of the trustees. These is no distinction for the purposes of this case between possession and occupation held by these trustees through their agents. Dec. 19. The judgment of their Lordships was delivered by LORD RADCLIFFE, who stated the facts set out above and continued Their Lordships find themselves unable to agree with the conclusions of the High Court in its appellate jurisdiction. They do not consider that it would be right to treat Mr. Seksaria as having suffered no damages by reason of the Maharajas breach of contract they do not think that s. 60 of the Contract Act has the limited meaning which the High Court have attached to it in this case and they regard the appellant companys payment of the taxes as having been in no relevant sense a "voluntary" one. But before taking up these points in any detail it is convenient to notice a preliminary objection to the jurisdiction of the High Court which was advanced on the Maharajas behalf. This objection was advanced before both the courts in India, although the form of the argument has not always been the same. It did not commend itself to either of those courts and their Lordships entertain no doubt that they were right in overruling it. As the argument was put before their Lordships it can be summarized in this way. The Maharaja, as a sovereign prince, was not liable to be sued in the courts of British India except in accordance with the rules prescribed by s. 86 of the Code of Civil Procedure. As the argument was put before their Lordships it can be summarized in this way. The Maharaja, as a sovereign prince, was not liable to be sued in the courts of British India except in accordance with the rules prescribed by s. 86 of the Code of Civil Procedure. That section lays it down that such a prince may be sued with the consent, but shall not be sued without the consent, of the Crown Representative and enacts in sub-s. 2 that consent may be given with respect to a specified suit or to several specified suits, or with respect to all suits of a specified class or classes, and may specify, in the case of any suit or class of suits, the court in which the prince may be sued, but consent shall not be given unless it appears to the consenting authority that one at least of certain defined conditions exists. The consent of the Crown Representative had been obtained in this case, and had been expressed in the form of an authority under s. 86 for Mr. Seksaria and the director and managing agent of the appellant company to institute a suit against the Maharaja in the High Court at Bombay in respect of the matters specified in the plaint that was attached to the document of consent. This was the same plaint as that which was actually delivered in this suit. Nothing, it would appear, could be more conclusive. But, it was argued, a reading of the plaint would show that none of the conditions which must appear to the Crown Representative to exist before consent was given did in fact exist in this case, and therefore the sanction required has not been validly given. In their Lordships opinion this argument is misconceived. , For the High Court the test whether the Maharaja was rightly impleaded before it was the existence of the consent of the Crown Representative duly certified by the signature of the political secretary. It was no part of its function to try by its process the question of fact whether any of the conditions required for the giving of his consent existed, or even the question whether it had appeared to the Crown Representative that one or Law Rep. 77 Ind. App. 156( 1949- 1950) Govindram Gordhandas Seksaria v. State of Gondal 270 more of them did exist. 77 Ind. App. 156( 1949- 1950) Govindram Gordhandas Seksaria v. State of Gondal 270 more of them did exist. The certified consent is in all ordinary cases conclusive evidence that it did so appear. There might conceivably have been cases, as Kania J. supposed in his judgment, in which a certificate showed on the face of it that the Crown Representative did not consider any of the necessary conditions to exist or possibly, special circumstances might have arisen entitling a court to go behind a certificate and investigate the facts. Their Lordships express no opinion on that point, for in this case there was nothing to suggest that any such special circumstances existed. Indeed, the certificate itself leaves it open as to which of the various conditions the Crown Representative relied on. The objection was no more than an attempt to get the court to try for itself what the Act by s. 86 has left to the Crown Representative to (ascertain. The trial judge decided quite rightly that it was not for him to go behind the certificate or to entertain the objection, and their Lordships are at one with the appellate court in upholding this decision. It remains to consider the merits of the appeals. A somewhat complicated structure of rights and liabilities was set up by the circumstance that, apart from the Maharaja and Mr. Seksaria, who made the original contract for stale of the mills, there were the trustees, the legal owners of the mills, who had actully been in possession of them, and the (appellant company which sub-purchased from Mr. Seksaria and actually found the money to pay off the outstanding municipal taxes. But the basic fact is that the Maharaja contracted to sell the mills to Mr. Seksaria. By making such a contract he imposed on himself the obligation imported by s. 55, sub-s. 1 (g), of the Transfer of Property Act to pay all public charges___ accrued due in respect of the property up to the date of possession and to discharge all incumbrances on the property " then existing." In this case the terms of the contract operate to substitute the date of possession for the date of sale that would otherwise be the determining date. Both the courts in India have held that the Maharaja, not the trustees, was the contracting party, and that s. 55, sub-s. 1 (g), was imported into his contract. Their Lordships agree with them. It was argued that the provisions of s. 55, sub-s. 1 (g), did not form a part of the Maharajas contract for two reasons. One was that, since the trustees, and not he, were to be the conveying parties, he was not a seller within the meaning of s. 55, land that, consequently, his contract was not affected by that section. Their Lordships do not consider that the meaning of the word seller is limited in that way, and they have nothing to add to what was said by Kania J. on that point. The other reason was that in a letter dated August 5, 1937, to Messrs. Kanga & Co. the Dewan of Gondal State had stated that the Maharaja desired to dispose of the mills at a price of Rs. 12,50,000 net," and it was suggested that, in the light of this, the later documents which in fact contained the contractual terms should be interpreted as excluding any obligation on the Maharaja such as s. 55, sub-s. 1 (g), would otherwise have imposed. Their Lordships regard this argument as untenable on two separate grounds. The word "net" does not, expressly or by implication; appear in the sale contract that was actually made. If it had, it would not have been sufficient in the context to exclude the application of s. 55, sub-s.1 (g). Having undertaken by his contract to clear off the outstanding taxes the Maharaja defaulted on this obligation. There is no other way in which to interpret his continued failure to make any provision for meeting them in the face of a series of requests for payment that began with Messrs. Kanga & Co.s letter to Messrs. Craigie, Blunt & Caroe dated October 12, 1937, and were reinforced by Mr. Seksarias letter to the Maharaja himself which was dispatched in December, 1938. By February, 1939, it was obvious that the Municipality were not going to wait any longer, and in their Lordships opinion Mr. Kanga & Co.s letter to Messrs. Craigie, Blunt & Caroe dated October 12, 1937, and were reinforced by Mr. Seksarias letter to the Maharaja himself which was dispatched in December, 1938. By February, 1939, it was obvious that the Municipality were not going to wait any longer, and in their Lordships opinion Mr. Seksaria was quite entitled at that date to treat the Maharaja as having repudiated his obligation and to take what measures were open to him to prevent this breach of contract bringing about a forced sale of the purchased mills in realization of the Municipalitys charge. The moneys required were provided by the appellant company, and it is this circumstance that led the High Court to allow the Maharajas appeal on the ground that Mr. Seksaria had suffered no damage. It is impossible to ascertain from the record the nature or extent of Mr. Seksarias interest in the appellant company, and it is necessary to treat the two of them as independent legal persons for all purposes. The trial judge escaped the difficulty with which the appeal court were faced, because he Law Rep. 77 Ind. App. 156( 1949- 1950) Govindram Gordhandas Seksaria v. State of Gondal 271 held that Mr. Seksarias sub-sale to the appellant company should be read as an actual assignment of his contractual rights against the Maharaja. Their Lordships do not think that this view can be adopted by them. The agreement dated] November 29, 1937, was an ordinary sub-sale it amounted c to a contract to sell the property which Mr. Seksaria had agreed to purchase, but it neither assigned nor contracted to assign his contractual rights under that agreement. On the other hand, their Lordships cannot accept the view of the appeal court that Mr. Seksaria has no claim against the Maharaja because he proved no damage. On the contrary, they think that his damage appears clearly enough from the facts themselves. What was the position on February 23, 1939, when the taxes were paid f If it was the Maharajas obligation, as between himself and Mr. Seksaria, to find the money, just as much was it Mr. Seksarias, as between him and the appellant company. There is nothing in the sub-sale agreement to shift the obligation from the vendor. What was the position on February 23, 1939, when the taxes were paid f If it was the Maharajas obligation, as between himself and Mr. Seksaria, to find the money, just as much was it Mr. Seksarias, as between him and the appellant company. There is nothing in the sub-sale agreement to shift the obligation from the vendor. At that date he had failed in his duty to the company, not the less because the cause of his failure was the Maharajas breach towards him. It is true that before instituting the present suit the appellant company did not go through the formality of notifying to Mr. Seksaria that it would assert its legal rights against him, either for breach of his obligation under s. 55, sub-s. 1 (g), of the Transfer of Property Act or under s. 69 of the Contract Act (a section which will be more fully considered later) But why should it? The facts spoke for themselves, and the immediate purpose both of Mr. Seksaria and the appellant company, once the property had been saved from forced sale, was to join together in a suit to recover from the persons primarily liable the amount of money that had been expended. It seems to their Lordships neither right in law nor just in practice, once it be conceded that the Maharaja had undertaken to Mr. Seksaria that he would clear off these taxes, that the Maharaja should be absolved from liability merely because Mr. Seksaria had not gone through the procedure of paying over to the appellant company, his co-plaintiff in the suit, the sum of money which he would certainly have to make good to it unless it could obtain indemnity from the Maharaja or the trustees direct. It is now necessary to consider what are the rights of the company. In their Lordships view those rights are to be found in s. 69 of the Contract Act. That section runs as follows 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." 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 companys payment was described by the learned judges as a voluntary one. 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 circum stances 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 in 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 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 Law Rep. 77 Ind. App. 156( 1949- 1950) Govindram Gordhandas Seksaria v. State of Gondal 272 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. 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 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. So interpreted, s. 69 appears to their Lordships to apply aptly to the payment made by the appellant company in this case. The Maharaja was bound to pay this money in the sense that he had made a legally enforceable contract with Mr. Seksaria to pay it. Unless the words bound by law to pay where they occur in the section, exclude those obligations of law which arise inter partes, whether by contractor by tort, and embrace no more than those public duties which are imposed by statute or general law, the Maharaja was a person from whom reimbursement could be claimed under the section. But their Lordships think that the words 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 a liability had arisen. Certainly, too, there is authority in the courts of India for the proposition that "bound by law" covers obligations of contract or tort. Accepting this interpretation, as their Lordships do, they hold that the act of payment by the appellant company gave to it a right of action against the Maharaja to obtain reimbursement of the sums so paid. Thus, as against him, both the plaintiffs in this suit ought to have been held to have good, though alternative, rights of action. Nor does this exhaust the plaintiffs rights. Thus, as against him, both the plaintiffs in this suit ought to have been held to have good, though alternative, rights of action. Nor does this exhaust the plaintiffs rights. Not only did the appellant companys payment exonerate the Maharaja from his contractual bond, but it at the same time exonerated the trustees from whatever liability they may have had to the Municipality by virtue of the provisions of s. 146 of the Bombay Municipal Act of 1888. Their Lordships have had placed before them on behalf of the trustees all that can property be said in support of the argument that there is no sufficient ground for holding them to have been under any such liability. The conveyance of March 25, 1939, shows, it was said, that the mills were land held immediately from the Government; in such a case sub-s. 1 of s. 146 applies and it is only the actual occupier from whom the taxes may be levied. The trustees may have been in possession up to September 9, 1937, but that is not to say that they were in occupation the more likely occupiers were a firm, Messrs. Brady & Co., who were acting as the trustees agents in looking after the property. Their Lordships have given careful consideration to the argument, but they are unable to feel any doubt that s. 146 does operate to make the trustees themselves primarily liable for the taxes that accrued during their period of possession. That they were in possession from about October, 1933, until Mr. Seksaria took over is found as a fact by the trial judge, and this fact is accepted by the judges on appeal. There may in certain circumstances be a distinction between actual occupation and legal possession, but their Lordships can see no reason at tall to suppose that any such distinction existed in this case. The position which Messrs. Brady & Co. held is described in the trustees own statement of defence they are stated to have been in charge of the mills on behalf of the trustees, it is impossible that they could have been the occupiers for the purposes of s. 146, sub-s. 1, since such an occupier is described in the section as holding" from Government or certain other persons. But if the occupiers were not Messrs. But if the occupiers were not Messrs. Brady & Co., who else could have been except the trustees who had the possession? It is of some interest co see, although the legal question whether the trustees were liable for the taxes or not does not depend on the attitude of the parties or their advisers, that the trustees solicitors had obviously been treating their clients as liable to the Municipality long before the Maharaja sold the mills to Mr. Seksaria. Indeed, it was on their representation that the Law Rep. 77 Ind. App. 156( 1949- 1950) Govindram Gordhandas Seksaria v. State of Gondal 273 assessment of the mills was reduced. The result is that s. 69 of the Contract Act affords to the appellant company an additional right of recourse against the trustees, since its discharge of the outstanding taxes Exonerated the trustees who were primarily liable by virtue of the Municipal Act. Their Lordships are of opinion, therefore, that both these appeals should succeed. The two decrees of the High Court (in appeal) dated November 8, 1943, should be set aside and the decree of the High Court (in original civil jurisdiction) dated January 15, 1943, should be restored in so far as it gives judgment against the Maharaja in the sum of Rs. 95,630.12 and interest. There should also be judgment for the appellant company in the same sum with interest against the trustees, it being declared that the appellants rights against the respective respondents are alternative and that they are to be at their election which they are to pursue. Having regard to the special relationship between the Maharaja on the one hand and the trustees on the other their Lordships think that justice will be done if the Maharaja is ordered to pay to the appellants the plaintiffs costs of the suit up to and including the trial in the first court without distinguishing between their costs as against the several respondents and if the Maharaja is ordered to pay to the appellants the costs incurred by Mr. Seksaria and the appellant company as respondents to his appeal to the High Court, and the trustees are ordered to pay to the appellant company its costs of its appeal to the-High Court. Their Lordships have humbly advised His Majesty accordingly. The Maharaja must pay the appellants costs of this appeal.