Jackson, J.@mdashThe ground on which the defendant now, on appeal before us, seeks to resist the claim of the plaintiff''s, is, that by the application of a portion of the purchase-money paid in respect of the entire turruff, which afforded satisfaction in part of the plaintiff''s mortgage debt, he has conferred a benefit upon the plaintiff''s, and, consequently, the plaintiffs, before they can recover possession of the chahar-patni, ought to be on terms and compelled to repay him certain portion of the purchase-money.
2. It appears to us that the defendant is not in that position. That which he purchased was not the chahar-patni, nor did the Land Mortgage Bank proceed against the chahar-patni, which had been mortgaged to it. The Bank availed itself of its right to execute its decree generally, and sold the dar-patni, and by name the dar-patni granted by Tarachand Biswas. The defendant, in purchasing that along with other parts of Turruff Ramgourpore, took his chance. He has not in fact conferred any benefit upon the plaintiffs in respect of saving this particular property from sale; on the contrary, there is nothing, as far as we can see, to prevent the Land Mortgage Bank from taking this chahar-patni in execution at any time; and even if he had, it appears to us that this was merely a voluntary payment. It was not a payment such as the plaintiff''s were under any obligation, express or implied, to recognize. That being so, the case comes within the observation of the Judicial Committee in the case of Ram Tuhul Singh v. Bisesvar Lall Sahoo (L.R. 2 In. Ap. 131). The observations arc in page 143. Their Lordships say: "But even if this were true, it is not in every case in which a man has benefited by the money of another, that an obligation to repay that money arises." It was a voluntary payment. In fact, the greatest difficulty would arise in apportioning, out of the whole sum, the proper amounts which had been set against this particular property. He bought an entire turruff, and by causes, no doubt beyond his control, part has gone out of his hands. The appeal must be dismissed with costs.
