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1951 DIGILAW 119 (PAT)

Bhagwati Charan v. Hirday Singh

1951-11-08

S.K.DAS, SARJOO PRASAD

body1951
Judgment Das, J. 1. This is a second appeal by defendant No. 1. The suit out of which this appeal has arisen was for a declaration that two sale-deeds executed by one Mt. Radhika Kuer in favour of the defendants were not binding on the plaintiffs. The suit was decreed in respect of one of the sale-deeds only, namely, the sale-deed in favour of defendant No. 1, executed on the 17th of January 1944. The suit was dismissed in respect of the claim relating to the other sale-deed in favour of defendant No. 2. Hence, this appeal by defendant No. 1 alone. The sale-deed in favour of the appellant purported to be for a consideration for Rs. 2,000.00 only. The consideration consisted of the following items; (1) a sum of Rs. 800.00 stated to be due to the appellant on the foot of a sudbharna bond executed by Naga Singh, husband of Mt. Radhika Kuer, the sudhbharna bond being of the date, 27th of August 1940; (2) another sum of Rs. 800.00 said to be due to the appellant from Mt. Radhika Kuer on the basis of a handnote executed by her dated the 18th of June 1943; (3) a sum of Rs. 57/8/-being the interest on the aforesaid handnote; (4) a sum of Rs. 320.00 said to be due to one Sudkhnan-dan on a handnote stated to have been executed by Mt. Radhika Kuer on the 24th of June 1943; and (5) a sum of Rs. 22/8/- stated to be the interest on the handnote of Sukhnandan. 2. Several questions arose for decision in the Courts below. One of the questions was whether Mt. Radhika Kuer was a concubine of Naga Singh or his wife. Another question was whether the plaintiffs were the reversioners of Naga Singh. On these two questions, the Courts below found: (1) that Radhika Kuer was the married wife of Naga Singh, and (2) that the plaintiffs were the reversioners of Naga Singh. These findings have not been challenged before us. The appeal must, therefore, be considered and decided on the basis of the two findings mentioned above. 3. The Courts below also concurrently found that, except for the sum of Rs. 800.00 which was due to the appellant from Naga Singh on the foot of the sudbharna bond, no consideration had passed for the sale-deed. The appeal must, therefore, be considered and decided on the basis of the two findings mentioned above. 3. The Courts below also concurrently found that, except for the sum of Rs. 800.00 which was due to the appellant from Naga Singh on the foot of the sudbharna bond, no consideration had passed for the sale-deed. They hold that the appellant had failed to prove passing of consideration for the handnote stated to be in his favour; they also held that Mt. Radhika Kuer did not borrow any money from Sukhnandan, nor was sukhnandan paid by the appellant. The Courts below also held that the appellant made no bona fide enquiry, and, therefore, he was not an honest purchaser; in other words, they held that the sale as a whole was not justified by legal necessity. On these findings, the Courts below gave a decree in favour of the plaintiffs with regard to the sale-deed in favour of the appellant dated the 17th January 1944. 4. Mr. U. N. Sinha, appearing for the appellant, has urged the following points before us. He has, firstly, contended that the principle laid down by the Privy Council in SRI KRISHNA DAS V/s. NATHU RAM, 54 Ind App 79. should be applied in the present case, and it should be held that the sale was justified, inasmuch as the sum of Rs. 800.00 which was due to the appellant from Naga Singh by reason of the Sudbharna bond was paid. As was observed by their Lordships of the Judicial Committee in the decision referred to above, the real question to be considered is whether the sale itself is justified by necessity, if the purchaser has acted honestly and made the enquiry as to the existence of necessity for the sale, he is not bound to account for the application of the price. Learned Counsel for the appellant has taken us through both the judgments on this point and having perused those judgments, I am satisfied that the Courts below clearly round that the sale itself was not justified by any necessity. Firstly, they round that no part of the consideration had been paid except the sum of Rs. 800.00 which was due to the appellant on the foot of the sudbharna bond. They held that the so-called handnote in favour of the Sukhnandan was fictitious. Firstly, they round that no part of the consideration had been paid except the sum of Rs. 800.00 which was due to the appellant on the foot of the sudbharna bond. They held that the so-called handnote in favour of the Sukhnandan was fictitious. They further held that no consideration had been proved for the so-called handnote in favour of the appellant not had the appellant acted as an honest purchaser. In view of these findings, it seems clear to me that the principle laid down in KRISHAN DASs case, 54 Ind App 79 (PC), cannot be applied. It is true that the question whether the sale is justified by necessity or not is not one of the arithmetical calculation only, but in a, case where it has not been shown that it was necessary for the widow to sell the property to discharge the sudbharna debt, and particularly when the finding is that the purchaser made no bona fide enquiry and was not acting as an honest purchaser, there is no room for the application of the principle laid down in Krishan Dass case, 54 Ind App 79 (PC). The first point urged on behalf of the appellant must, there-lore, be overruled. 5. Secondly, it is contended that the suit was barred by reason of the pro visions of Sec. 42 of the Specific Relief Act. Here, again, I think that the contention is not worthy of acceptance. The plaintiffs-respondents, who are the reversionary of Naga Singh, have no right to immediate possession. It is not in dispute that Mt. Radhika Kuer, widow of Naga Singh, is still alive. Naga Singh had a sister Mt. Rajballi who is also alive. It is true that in the plaint, the plaintiffs had stated that they got possession of the land sometime previously because Mt. Rajballi did not care for possession. They brought the suit on the allegation that they had been dispossessed subsequently. In spite of that allegation of possession and dispossession, it is clear that the plaintiffs respondents have no immediate right to possession. Therefore, it was not open to them to ask for a relief for recovery of possession. In that view of the matter, it is impossible to hold that the suit was barred by reason of the provisions of Section 42 of the Specific Relief Act. 6. Therefore, it was not open to them to ask for a relief for recovery of possession. In that view of the matter, it is impossible to hold that the suit was barred by reason of the provisions of Section 42 of the Specific Relief Act. 6. These were the two main contentions urged on behalf of the appellant, and both these contentions fail. Learned Counsel for the appellant has then pointed out to us that the declaratory decree which had been made in favour of the plaintiffs-respondents does not make it clear that the appellant is entitled to be paid back the sum of Rs. 800.00 which was paid to Mt. Radhika Kuer. Though the sale as a whole is not justified by necessity, there is, I think, an equity in favour of the appellant, and the declaration should make it clear that when the succession opens after the death of Mt. Radhika Kuer and Mt. Rajballi, the appellant will be entitled to be paid back the sum of Rs. 800.00 which was paid for redeeming the Sudbharna bond in favour of the appellant As a matter of fact, the decree prepared in the Courts below does not make this clear, though in the body of the judgment it is made clear that a sum of Rs. 800.00 was paid in satisfaction of the dues of the Sudbharna bond of the 27th August 1940. This should now be made clear in the decree prepared here. 7. Subject to the direction given above with regard to the preparation of the decree, this appeal is dismissed with costs in favour of the plaintiffs-respondents. Sarjoo Prosad, J. 8 I agree.