Muttupillai V. Chinnapillai Et Al.,

May 27,1910

Present : The Hon. Sir Joseph T. Hutchinson, Chief Justice, and Mr. Justice van Langenberg

MUTTUPILLAI v. CHINNAPILLAI et al.

D.C., Jaffna, 6.119.

Action on a bond by a person not entitled to sue on the bond-Money paid under sanction of Court-Second action on the bond by person lawfully entitled to sue.

The law will never compel a person to pay a sum of money a second time which he has paid already under the sanction of a Court of competent jurisdiction, provided that the person has done all that was incumbent on him to resist the payment.

A granted a bond in favour of B. After B's death, C, who was B's illegitimate child, alleging that she was the sole heiress of B, sued A on the bond and obtained judgment. And thereupon A paid the sum due on the bond to C. Subsequently D, who was the legitimate child of B, as administratrix of B's estate, sued A on a copy of the bond. Under the circumstances of this case, it was held that D could not maintain the action against A.

THE facts are set out in the judgments.

Kanagasabai (with him Balasingham), for the appellant.-The first defendant was aware that there were two persons claiming the money due on the bond. She should have brought to the notice of

the Court, when she was sued by Sivakamipillai, that the present May 27,1919 plaintiff had also claimed the money due on the bond. If she Muttupillai allowed judgment to go against her without bringing these facts to v. the notice of the Court, she could not be said to have done all in her power to resist the payment. Sections 466 and 467 of Pothier relied on by the District Judge do not apply. The principle enunciated there must be read in the light of the illustrations given by Pothier.

Tisseverasinghe, for the respondents (first to eight).-The first defendant paid the money under legal compulsion (Mohamado v. Ibrahim [1 (1895) 2 N. L. R. 36.] ). He had just grounds for considering that Sivakamipillai was the real creditor after the mortgagee's death. He cited Pothier, sections 466,467; 2 Nathan 795.

Tambyah, for the ninth respondent.

Balasingham, in reply.

Cur.adv. vult.

May 27, 1910. HUTCHINSON C.J.-

The plaintiff sues on a mortgage bond made by Chinnapillai (first defendant) and Ponnachi dated December 28. 1901, in favour of Saravanamuttu for Rs. 250 and interest. Saravanamuttu died in November, 1903, and the plaintiff sues as his administratrix. Ponnachi died in April,' 1903, intestate; the second to the eighth defendants are her heirs; they are minors, appearing by their guardian ad litem the first defendant.

After Saravanamuttu's death an action was brought on the bond in July, 1904, by Sivakamipillai against Chinnapillai, both personally and as administratrix of the estate of Ponnachi. In that action Sivakamipillai alleged that the mortgagee, Saravanamuttu, had died intestate, leaving property worth less than Rs. 1,000, and leaving her his sole heiress; that the mortgagor, Ponnachi, had died intestate, and that the first defendants Chinnapillai had obtained letters of administration to Ponnachi's estate; and she filed an affidavit in proof of these allegations. Chinnapillai filed no answer, and a decree was made on August 18,1901, for payment of the amount due on the bond by her to Sivakamipillai, and on August 25, 1904, she paid it in pursuance of the decree.

On July 6, 1906, the present plaintiff, Muttupillai, applied to the District Court for letters of administration to the estate of the deceased morgagee, Saravanamuttu, alleging that she (being his only daughter by his first wife) and Natchipiilai (his widow) and Saravanamuttu (his grandson, the only son of his daughter, the said Sivakamipillai, by his second wife, the said Natchipillai) were his sole heirs, and tha

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