DINGIRI APPU, Appellant, and PUNCHI APPUHAMY et al., Respondents

119-NLR-NLR-V-48-DINGIRI-APPU-Appellant-and-PUNCHI-APPUHAMY-et-al.-Respondents.pdf


KKUNEMAN A.C.J.—Dingiri Appu v. Punchi Appuhamy.
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1947Present: Keaneman A.CJ. and Jayetileke J.DENGERI APPU, Appellant, and PUNCHI APPUHAMY et al,
Respondents.
C. 260—D. C. Avissawella, 4,061.
Actio negotiorum gestorum—Payment of debt by stranger—Negotiorumgestor—Cession of action—Contribution—Pro rata liability—Joint andseveral liability—Misjoinder of parties and causes of action.
The defendant and two others who were co-owners of a land executeda usufructuary mortgage bond for 600 rupees. The two others sold their1/3 share to the plaintiff who paid off the bond. Plaintiff sued thedefendants for the sum of 400 rupees which he alleged was their shareof the debt less a sum of 100 rupees paid to him by the fourth defendant.
Held, that plaintiff must in the circumstances be regarded as anegotiorum gestor and was entitled-to recover the money paid on behalfof the defendant
Held, further, that the liability of each defendant was a separate,liability for a pro rata share and that there was a misjoinder of defendants.
PPEAL from a judgment of the District Judge, Avissawella.
H. W. Jayewardene, for plaintiff, appellant.
A. P. Wijeratne (with him H. Wanigatunga), for first and seconddefendants, respondents.
Cur. adv. vult.
July 25,1947. Keuneman A.C.J.—
The first, second, third, and fourth defendants together with Williamand Marthelis were the owners of the land referred to in this case. Theyexecuted a usufructuary mortgage bond for Rs. 600 on June 7, 1919,in favour of Podiappuhamy, who by P 1 of 1927 assigned his rights to
M. J. Perera now dead, whose estate was administered by his son
N. W. Perera as administrator. William and Marthelis by P 2 of 1931and P 3 of 1943 transferred a 1/3 share of the land to the plaintiff, whohas paid off the sum of Rs. 600 due on the mortgage bond. Plaintiffalleged that out of the Rs. 400 due to him, a sum of Rs. 100 was paidto him by the fourth defendant. Plaintiff sued the first, second, third,and fourth defendants for the balance sum of Rs. 300.
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KEUNEMAN A.C.J.—Dingiri Appu v. Punchi Appuhamy.
The evidence led for the plaintiff was accepted in its entirety and twomatters of law were raised by the defendants, contained in the followingissues : —
“ 3. Is there a misjoinder of parties and causes of action ?
Can the plaintiff not being a co-debtor and not having obtaineda cession of action maintain this action ? ”,
The facts underlying issue 4 were not in dispute, viz., that plaintiff wasnot a co-debtor with the defendants, and that he had not obtained acession of the mortgage.
The District Judge decided both these issues against the plaintiff, anddismissed his action with costs. The appeal is from that judgment.
In respect of issue 4, the District Judge conceded to a co-debtor theright to claim a ratable contribution from his co-debtors, even thoughhe had not obtained cession of action. But he held that the plaintiffnot being a co-debtor could not maintain an action for contribution againstthe defendants, unless he obtained cession cf action. The District Judgedepended on a passage in Voet 20.4.5.
In this section Voet begins with the case of co-heirs : —
“ If one of a number dt heirs has in consequence of the indivisiblenature of the pledge held by him, alone satisfied in full a creditor suingby the hypothecary action, there is no doubt but that a right of actionpro rata, against the other heirs, should be ceded to him just as cessionof action against other co-sureties for the same debt is made to one ofthem who is prepared to pay the whole of it. Besides which, he canwithout cession obtain indemnity from the others by the ' actionegctiorum gestorum ’ or ' famiilia-z erciscundae (Berwick's Voetp. 382).
Now, in this passage Voet is dealing with the rights of the co-heir, andhas mentioned two remedies which he possesses, viz., (1) the right ofdemanding cession of action, and (2) without cession, the right of claimingcontribution from the co-heirs by an action such as actio negotiorumgestorum.
In the rest of the section Voet deals with the right to demand cession. of action, in certain special cases. In the course of this discussion appearsthe passage on which the District Judge relies, viz.:—
“It cannot indeed be denied that a stranger who spontaneously(sponte sua) offers to pay another’s debts to the creditor on behalf of adebtor has no legal right to have the obligation (i.e., the mortgage)transferred to him (by the creditor whose claim he thus satisfies).”
Voet however draws a distinction where the payment is made in pursu-ance of a contract, as in the cases of guaranty and suretyship, or underthe apprehension of losing possession of any kind. (Berwick’s Voetp. 384.)
In this passage Voet appears to be discussing the right of a “ stranger ”who has paid the debt to claim cession of action. I cannot read into the
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KEUNEMAN A.C.J.—Dingiri Appu v. Punchi Appuhamy.
passage a denial ;o the “ stranger ” of the right to bring an action such asthe actio negotiorum gestorum, and I think the District Judge was in errorin so thinking.
Wessels in the Law of Contract in South Africa sets out the position asfollows : —
“2142. Can a third party, who makes a payment in his own namebut on behalf of the debtor, recover from the latter the amount sopaid ?
“According to Vinnius and Voet the third party can recover fromthe debtor what he has paid for his benefit if he acted either as anagent, or as a negotiorum gestor, but if he did not act in either of thesecapacities but paid the creditor against the debtor’s wish, he mustbe held to have intended to donate the amount to the debtor.”
In Nathan’s Common Law of South Africa the position of a negotiorumgestor is dealt with (2nd Edition Vol. 2. p. 1151, para. 1080) : —
“Voet more briefly defines negotiorum gestor as a person who trans-acts the business of a person who is absent or unaware of it withoutmandate to that effect. In other words it is an unauthorised agency.”
He adds : —
“ The following are the requisites for a negotiorum gestio : (1) theact must be done for the benefit of the principal (dominus negotiorum) ;
it must be undertaken, without his request; (3) it must be gratuitouson the part of the gestor; (4) the gestor must have performed theservice ammo obligandi, for if the act be done animo donandi withrespect to expenses or the like, it becomes an act of benevolence or gift ;
the gestor must have reasonable cause, from the nature of theservices rendered, to presume ratification on the part of the principal,for it is this presumption on the part of the gestor which is necessaryto bind the principal. Under such circumstances the principal is boundby the acts of the gestor.”
In my opinion the conditions are satisfied according to which theplaintiff must be regarded as negotiorum gestor in respect of these defend-ants who have not authorised the payment of the debt. There is evidencein the case, that one defendant, the second defendant, was actually presentat the time of the payment, and approved, of the payment. As regardsthe second defendant the plaintiff can be regarded as having acted inthe capacity of agent. (See Wessel’s Vol. 1, p. 659) : —
“ 2137. If the payment is not made by the third party mero motu,he must act either as the debtor’s agent or as a negotiorum gestor. Ifhe makes the payment with the knowledge of the debtor, he acts as hisimplied agent, if without his knowledge as a negotiorum gestor (Vinnius).”
In my opinion the District Judge has wrongly decided issue 4, and Ihold that the plaintiff is entitled to claim contribution against the first,second, and thirdlefendants.According to the plaint, the fourth defend-
ant has already paid his share of Rs. 100, and the action against him ismisconceived and, must be dismissed.
48/30
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KEXJNEMAN A.C.J.—Dingiri Appu v. Punchi Appuhamy.
Issue 3 has now to be considered. Voet says (20.4.6) “ It is lessopen to doubt that one who pays the entire debt does not recover itin solidum from other possessors of other things mortgaged, but onlypro rata."
In Silva v. Punchirala1 Shaw J. held that where one judgment debtorwho was jointly and severally liable with others paid the whole claim,and subsequently sued his co-debtors for contribution in one action, hiscause of action against each defendant was separate and that there was amisjoinder of parties and causes of action.
“Although the original liability to the Basnayake Nilame was a jointand several one, the liability of the defendants to repay the plaintiff whathe has paid cn their account is not.
He is only entitled to recover from such of his co-defendants in theprevious suit the amount he has paid on behalf of each of themrespectively. His cause of action against each of the defendants is fortheir proportion of the debt only ”.
In Dias v. Silva ° Garvin S.P.J. deals with the case of one of a numberof debtors who has paid without demanding cession of action. “Such aperson is not debarred from claiming in his own right from each of hisco-debtors a share of the debt for which each is liable. (See Sande’sCession of Action pp. 123, 124) ’.
I agree with these findings, and on principle I do not see why this ruleshould be restricted to the case of co-debtors, nor has any authority beencited to us to that effect. The. passage in Voet 20.4.6 has I thinkby implication a wider significance. Also the Roman Dutch Law appearsto have extended this to the claim of one surety who has paid the wholedebt to recover from each of his co-sureties a proportionate share. Seethe comments in Sande’s Cession of Action (translation by P.’ C. Anders,p. 129).
I hold that the plaintiff could enforce his claim only against each of thedefendants separately for a pro rata share, and that there has been amisjoinder of parties and causes of action in this case.
It was, however, argued that the District Judge should not havedismissed the plaintiff’s action, -but that he should have permitted theplaintiff to elect to go against one of the defendants, and to strike out theothers. Kuthdoos v. Joonoos * was referred to in this connection. Ithink the argument fails for two reasons. No application was made to theDistrict Judge or to us, to strike out any pa*'*«>s wrongly joined, and torestrict the claim to a share pro rata againsv one particular defendant.I do not think an opportunity should now be given t * the plaintiff to makesuch an election. Further it seems clear that an action against a singledefendant should have been brought in the Court of Requests and notin the District Court, where the scale of fees is materially different.
The appeal is dismissed with costs. As I have already pointed out theaction as against the fourth defendant could never have been maintained.As regards the first, second, and third defendants, the plaintiff will be atliberty to bring separate actions against each of them for the pro rataamounts for which they, are liable.
Appeal dismissed.
> (1! 21) 3 C. L. Bee. 67.• (1932) 34 N. L. R. 108.* (1939) 41 N. L. B. 251.