Prasanno Kumar Panja v. Ashutosh Ray — 1913 DIGILAW 278 (CAL)

JUDGMENT 1. This Appeal arises out of an application by the Respondent, Ashutosh Ray, for ascertainment of mesne profits after being substituted in the place of the original Plaintiff in a suit for possession and mesne profits. The facts are these :--The Appellants who are the descendants of one Raghunath Panja are the putnidars of Mehal Lot Arjunbari. It appears that the durputni interest in the said Lot was purchased by three brothers, Dhon Krista, Pran Kaista and Ram Kalpa, in the name of Defendant No. 1. Raghunath sued the Defendant No. 1 for rent of the durputni and in execution purchased it himself. Dhon Krista alone thereupon brought a suit on the 25th October 1895, for recovery of possession of the durputni and for mesne profits. It was decreed by the Court of first instance on the 23rd November 1896. On appeal the District Judge dismissed the suit. But on second appeal the High Court remanded the case and on remand the District Judge affirmed the decree of the lower Court on the 3rd January 1902. The Appellants thereupon preferred an appeal to the High Court which was dismissed on the 25th May 1904. Then the Appellants preferred an appeal to the Privy Council which was also dismissed on the 15th May 1907. Shortly after the decree made by the District Judge after remand, Dhon Krista having died, his widow Prosanno Moyee got herself substituted in his place and in execution of the decree took possession of the property on the 12th February 1902. After the decree was passed by the High Court a deed (mimansa-patra) was executed between Dhon Krista's widow Prasanno Moyee and his two brothers Pran Krista and Ram Kalpa in which it was stated that the property belonged to the three brothers, but that Dhon Krista being the eldest she was entitled to get two annas to which her husband was entitled as the jesthansa (eldest brother's share) and the remaining 14 annas were divided between her and the two brothers in equal shares as also the mesne profits. In the meantime the durputni was sold in execution of a money-decree. One Mrigendra Nath Mandal purchased 10 as. as being the shares of Pran Krista and Ram Kalpa on the 4th March 1907, and one Haradhan Chatterjee, on the 25th April 1907, purchased 6 annas as Prasanno Moyee's interest. In the meantime the durputni was sold in execution of a money-decree. One Mrigendra Nath Mandal purchased 10 as. as being the shares of Pran Krista and Ram Kalpa on the 4th March 1907, and one Haradhan Chatterjee, on the 25th April 1907, purchased 6 annas as Prasanno Moyee's interest. Mrigendra Mandal sold the interest purchased by him to Haradhan, who in his turn executed a conveyance in favour of Ashutosh in respect of the entire property for a sum of Rs. 14,999, so that Ashutosh claims to be entitled to the entire property. On the 21st May 1907, Pran Krista and Ram Kalpa by a conveyance assigned 10 as. share of the costs and mesne profits under the decree obtained by Dhon Krista to Mrigendra Mandal, a benamdar of Ashutosh Ray, for Rs. 4,400, and Prasanno Moyee by another conveyance, dated the 10th June 1907, assigned her share of the mesne profits and costs to Ashutosh Ray for Rs. 4,486. On the 12th February 1909, Pran Krista and Ram Kalpa executed another deed by which the 10 annas share mentioned in the conveyance of the 21st May 1907, was corrected into 10 as. 13 gundas and odd. 2. On the 22nd February 1909, Ashutosh applied for execution of the decree. The application was admitted by the Subordinate Judge on the 23rd June 1910, but on appeal the Judge sent back the case for a finding whether the application was according to law. On the 28th January 1911, the Subordinate Judge found that the application was not in accordance with law, and accordingly returned his finding to the Appellate Court. On the 22nd February 1911, the Appellate Court sent back the record to the first Court directing the application to be returned to the applicant for amendment. On the 4th March 1911, it was returned for amendment and it was amended on the same date. 3. On appeal to the High Court it was held that the application was not an application for execution of a decree but was one in a pending suit in order that the final decree for mesne profits may be made therein, and that in fact the application was one under r. 12, Or. XX of the Code. 3. On appeal to the High Court it was held that the application was not an application for execution of a decree but was one in a pending suit in order that the final decree for mesne profits may be made therein, and that in fact the application was one under r. 12, Or. XX of the Code. Consequently what the assignee of the Plaintiff ought to have done was to get himself substituted in the suit itself and he ought to have invited the Court to assess mesne profits as directed in the preliminary decree of the 3rd January 1902. It was brought to the notice of the High Court that: the decree-holder had carried out the order of the Court and amended the petition which he had originally presented. The High Court then said as follows :--"In order to validate the proceedings it is necessary that the matter should go back to the Court of the first instance, that the application presented by the Respondent should be treated as an application under r. 12, Or. XX of the Code, and that on the basis thereof mesne profits should be assessed by the Court as directed in the original decree of the 3rd January 1902. As the application has been made by an alleged assignee of the original Plaintiff, it would be open to the Court to consider whether the application can be entertained at his instance." On the 15th July 1911, the Subordinate Judge made the following order :--"In accordance with the order of the High Court, dated the 2nd June 1911, the amended application for ascertainment of mesne profits in execution case No. 45 of 1909, is placed on the record of this case to be dealt with under Or. XX, r. order xx rule 12." Notice was issued to the Defendants to show cause why the applicant should not be substituted on the record in the place of the original Plaintiff and why further proceedings in the case should not go on at his instance. Objections were taken by the Appellants but they were overruled by the Subordinate Judge and they have appealed to this Court, and the following contentions have been raised on their behalf. 4. Objections were taken by the Appellants but they were overruled by the Subordinate Judge and they have appealed to this Court, and the following contentions have been raised on their behalf. 4. First, that the application for substitution by Ashutosh Ray not having been made within three years from the dates of the conveyances, namely, the 21st May and 19th June 1907, it was barred by Art. 181 of the Limitation Act: secondly, that Pran Krista and Ram Kalpa, two of the assignors, not having got themselves substituted in the suit, Ashutosh cannot be substituted in the suit : thirdly, that a claim for mesne profits cannot be transferred : and, fourthly, that Ashutosh Ray was not the real purchaser and having regard to all the circumstances of the case, leave ought not to be granted to him to carry on the proceedings for ascertainment of mesne profits. 5. As regards the first contention it appears that the Court below treated the original application for execution which was filed on the 22nd February 1909 (which was subsequently amended on the 4th March 1911) as the date of the application made in the suit and that date being within 3 years of the date of the conveyances, namely, 21st May 1907 and 19th June 1907, the Court below held that the application was not barred even if Art. 181 was applicable to the case. The order of the High Court does not expressly state, whether the date on which the application was originally presented or the date on which it was amended, should be treated as the date of an application under Or. XX, r. 12 of the Code. But if the application for execution of the decree was to be treated as an application for ascertainment of mesne profits under the order of the High Court, we do not see any reason why it should not be treated as an application for such purpose when it was originally presented on the 22nd February 1909. The original application also contained the prayers for substitution and for assessment of mesne profits. The original application also contained the prayers for substitution and for assessment of mesne profits. Under the circumstances we think that application should be treated as having been made on the date it was originally presented, i.e., on the 22nd February 1909, and that date being within 3 years of the dates of the conveyances, the application is not barred even if Art. 181 of the Limitation Act is applicable. But even if the application in the suit be considered as having been made on the 4th March 1911, on which date the application was amended, we think that the right of the assignee to apply for substitution in a pending suit is a right which accrues from day to day, and is therefore not barred by limitation. So far as an application in a pending suit for ascertainment of mesne profits is concerned, it is not barred by three years' limitation contained in Art. 181, corresponding to Art. 178 of the old Limitation Act (XV of 1877). The Full Bench decision in the case of Puran Chand v. Rai Radha Kishen I. L. R. 19 Cal. 182 (1891) is conclusive upon the point, and we do not think that the law has been changed by the new Limitation Act or the new Code of Civil Procedure. 6. The next contention on behalf of the Appellant is that assuming that an application by the assignee for substitution can be made more than 3 years after the date of assignment, such an application cannot be male when the assignor is not himself a party to the suit. In the present case, two of the assignors, namely, Pran Krista and Ram Kalpa were never parties to the suit. Their elder brother Dhon Krista alone was the Plaintiff and on his death his widow Prasanno Moyee was substituted in his place. It is contended, therefore, that the Respondent Ashutosh Ray cannot be substituted when his assignors Pran Krista and Ram Kalpa were not parties to the suit. It appears however that Lot Arjunbari was a joint property of the three brothers, Dhone Krista, Pran Krista and Ram Kalpa : and Dhone Krista being the eldest member of the family brought the suit, and he therefore may be taken to have represented the other two brothers also. It appears however that Lot Arjunbari was a joint property of the three brothers, Dhone Krista, Pran Krista and Ram Kalpa : and Dhone Krista being the eldest member of the family brought the suit, and he therefore may be taken to have represented the other two brothers also. The mimansa-paira executed by Prasanno Moyee, Pran Krista and Ram Kalpa shows that the property belonged to the three brothers and it appears that the Defendants also admitted the fact in their plaint in Rent Suit No. 7 of 1907. Even if Pran Krista and Ram Kalpa are considered as assignees from Prasanno Moyee, the position is that Ashutosh is an assignee from Prasanno Moyee who is a party to the suit with respect to one-third and an assignee from Pran Krista and Ram Kalpa who, in their turn, are assignees from Prasanno Moyee with respect to two-thirds. We do not think that Or. XXII, r. 10 is inapplicable to an application made by a person who has not obtained an assignment directly from a party to the suit but who has obtained an assignment derivatively from a party to the suit. 7. The third question is whether a claim for mesne profits can be transferred. A right to sue for, damages cannot be transferred : but in the present case the claim for mesne profits had already merged in a judgment before the assignment. The right under the judgment was, therefore, assignable, although the original cause of action was not. The amount of mesne profits had not been ascertained but the judgment declared the Plaintiff entitled to mesne profits, and it only remained to be completed by ascertaining the amount of the mesne profits. We are, therefore, of opinion that the right to the mesne profits under the decree was assignable. 8. The last question is whether Ashutosh Roy is a real purchaser or merely benamdar for the assignors, and whether the assignment was a bond fide one and for consideration. 9. The kobala executed by Pran Krista and Ram Kalpa purported to be for a consideration of Rs. 4,400 and that by Prasanno Moyee for Rs. 4,486 ; Rs. 900 is said to have been paid in cash to Pran Krista and Ram Kalpa and Rs. 9. The kobala executed by Pran Krista and Ram Kalpa purported to be for a consideration of Rs. 4,400 and that by Prasanno Moyee for Rs. 4,486 ; Rs. 900 is said to have been paid in cash to Pran Krista and Ram Kalpa and Rs. 1,303 to Prasanno Moyee and the balance was to be paid to certain creditors mentioned in the kobalas after accurate information of success of the case in the Privy Council was received. 10. As regards the payment of Rs. 1,303 to Prasanno Moyee there is an endorsement in the kobala by the Registrar that the said sum was paid in his presence to her and the receipt thereof was acknowledged by her. Then there is a registered Ekrar by Prasanno Moyee in which it is stated that a portion of the debts assigned over had been paid by the assignee, but that the other creditors having claimed more than the amount assigned for the payment of their debts, the balance in the hand of the assignee, namely, Rs. 1,373-9 was received by her. As for the consideration of the kobala by Pran Krista and Ram Kalpa, they admit in their deposition that they received Rs. 900 in cash on the date of the kobala and Rs. 1,166 subsequently, and the balance is said to have been paid to their creditors. The learned Subordinate Judge in his judgment has pointed out that the money said to have been paid by Ashutosh to the creditors exceeds the amount which he undertook to pay. That certainly is suspicious: Ashutosh admittedly has account books and they have not been produced. The assignors were indebted at the time. Ashutosh was the son-in-law of Ram Kalpa. Some only of the debts were mentioned in the kobala and a few of them are said to have been paid and the balance of the consideration money is said to have been returned to the assignors on the ground that the creditors refused to accept payment. This story of return of a large portion of the consideration money has not been believed by the lower Court. 11. It was stated in the kobala by Prasanno Moyee that the assignee was to pay the creditors after accurate information of the success in the Privy Council was received. This story of return of a large portion of the consideration money has not been believed by the lower Court. 11. It was stated in the kobala by Prasanno Moyee that the assignee was to pay the creditors after accurate information of the success in the Privy Council was received. The amount of mesne profits claimed by Ashutosh is about 2 lacs of rupees and a portion of Lot Arjunbari together with the claim for mesne profits and costs of the case up to the High Court and the costs which might be awarded by the Privy Council together with the arrears of rents due from the tenants of Lot Arjunbari and share of crops were purchased by Ashutosh for Rs. 8,800 odd. But the mesne profits have not yet been assessed. The assignors appear to have been in straitened circumstances and the amount claimed by Ashutosh (viz. 2 lacs of rupees) probably is a grossly exaggerated one, having regard to the fact that the property itself of which the mesne profits are claimed was valued at Rs. 1,436 only. It is true Pran Krista states that at the time of the sale they estimated the wasilal at a lac or a lac and a half rupees. But it appears to have been a mere guess and not an estimate upon any basis, the difference between the two figures being fifty thousand rupees. However that may be, we have to see whether we can refuse to give effect to the assignment. 12. If the transaction is considered as benami, there is nothing in law to prevent a benamdar from applying to the Court for ascertainment of mesne profits. 13. As there are not sufficient materials on the record to show the extent of the entire debts of the assignors, and how far they are secured, we are unable to say whether the assignments were in fraud of creditors. Having regard to the fact that at least a part of the consideration is proved to have been paid and that the assignors admit receipt at any rate of a part of the consideration we do not think that the Appellants can challenge the assignment on the ground that the whole of the consideration was not paid to the assignors by Ashutosh. That is a matter between the assignors and the assignee, and so far as the inadequacy of the consideration goes, that is also a question between the assignors and the assignee (see Bhagwat Dayal v. Debi Dayal I. L. R. 35 Cal. 420 : s. c. 12 C. W. N. 393 (1908), and the assignors have put in a petition to give effect to the assignment. 14. Under these circumstances we are unable to hold that effect should not be given to the assignment or that his application for substitution should be refused. 15. The Appeal is accordingly dismissed We make no order as to costs. Let the records be sent down to the lower Court without delay, if there is no objection.