Babu Jagdish Narayan Pershad Singh vs Babu Manmatha Nath Dey

Reginald Roe, J.—Of the plaintiffs in this case four are the eons of Lachman Prasad Singh, two of whom have recently came of age and two are still minors. Lachman Prasad Singh is still alive. He is a pro forma defendant, so joined on the allegation that he was unwilling to be a plaintiff. Joined with these Youngman as plaintiffs are the real litigants, purchasers of ten annas of one part of the property and twelve and a half annas of another part. The narrative set forth in the plaint is that Bishen Dyal Singh was the father of Lachmi Prasad and Lachman Prasad Singh. In 1866 he found himself in difficulties and adopted the usual course of executing a benami mokurrari in favour of his son Lachmi Prasad''s father-in law, Parsidh Narayan Singh, in respect of the most valuable part of the family property, the village Powara, on a rent reserved of Rs. 5 per annum. On his death the property passed to Lachmi Prasad and Lachman Prasad. They in 1891 and 1892 mortgaged the whole of the family property except Powara to the defendant No. 1, Manmatha Nath Dey, who in 1896 foreclosed the mortgage and after bringing to sale the mortgaged property obtained a decree u/s 90 of the Transfer of Property Act, and under that decree bought on the 16th of August 1902 Powara said to be worth Rs. 80,000 for Rs. 500. On the 23rd August 1986 Manmatha Nath Dey sold both Powara and the mortgaged properties to one Eknath Sahai, in the benami name of his daughter in-law, and on the 21st May 1908 and the 7th January 1909 Eknath Sahai sold these properties to defendant No. 2 Jaimurat Koer.

The plaint then sets forth the history of an ijara lease granted to Hari Prasad Lal and others in 1893 and the subsequent history of the mokurrari lease above mentioned. These histories are immaterial to the decision, save that they indicate that any stranger attempting to obtain khas possession would find himself at once in a sea of difficulties.

In the coarse of the argument mention has been made of another mortgage (and of execution proceedings in relation to a decree made thereon) in favour of one Harbans Narayan Singh. No mention is made of this mortgage in the plaint. I refer to it here as relevant only as still further diminishing the chances of Manmatha Nath Dey''s entry into possession of the property.

It was stated incidentally in the plaint that Lachmi Prasad Singh was a man of dissolute habits, that the money raised by him on the mortgages was not utilized for the purpose of the joint family, that the whole of the proceedings in execution of Manmatha Nath Dey''s mortgage decree was fraudulent, and that Manmatha, having notice of the existence of the plaintiffs Nos. 1 and 2 who were alive at the time of the proceedings, deliberately omitted to join them as defendants in his mortgage suit.

On the suit as framed the following reliefs were sought:--

That it may be held that the mokurrari deed, dated the 31st December 1866, executed by Babu Bishen Dayal Singh in favour of Babu Parsidh Narain Singh, paternal grandfather of the defendants Nos. 5 and 6, is collusive and fictitious and is without the passing of consideration, that under that deed the said Babu Parsidh Narayan Sing, and Babu Jagarnath Pershad Singh, father of the defendants Nos. 5 and 6, never got possession, nor did Babu Jagarnath Singh, father of the defendants Nos. 5 and 6. and the defendants Nos. 5 to 7 possess any right in the property shown in Schedule No. 1, nor did the defendant No. 2 or the defendant No. 4 also acquire any right therein by virtue of the deed of sale, dated the 31st December 1998, and that possession by the defendant No. 2 is unlawful.

That upon decision of the above points, and upon passing a decree and by eviction of the defendants Nos. 1 and 2, the plaintiffs may be awarded possession of the properties in suit, shown in Schedules Nos. 1 and 2, and the properties Nos. 2 and 4 to 13 entered in Schedule No. 3 and that possession of the plaintiffs Nos. 1 to 4 in respect of the properties Nos. 1 and 3 entered in Schedule No. 3 may be confirmed.

That if in consequence of the sale proceedings, etc., above mentioned or on any ground the plaintiffs Nos. 1 to 4 be considered to be dispossessed of the properties Nos. 1 and 3 in any way, in that case the plaintiffs Nos. 1 to 4 may be awarded the passing of decree for possession of the properties Nos. 1 and 3 out of the properties entered in Schedule No. 3.

That if on any ground relief No. 1 be not granted, and if the plaintiffs be held to be entitled only to redemption in respect of the decrees, dated the 24th July 1896 and the 28th November 1899 and the sales held on 16 August 1897 and the 15th July 1902 and the 16th November 1908, the plaintiffs may be granted opportunity for redemption, and an account of the principal and interest on account of the bonds, dated respectively the 27th September 1891 and the 28th March 1892, may be prepared and upon fixing the amount of the income from the property in suit received by the defendants Nos. 1 and 2 with interest thereon, and what may be received by them from the date of suit to that of decree, may be set off against the amount due under the said bonds, that thereafter whatever surplus amount may be found by the account to be justly due to the defendant No. 1, or to any defendant to date of the decree or to any time the Court may think proper, may be caused to be paid by the plaintiff''s and then order may be passed for them to take possession of the property in suit or that the Court may be pleased to pass a decree for redemption in the manner or subject to any conditions the Court may deem fit and proper that the plaintiffs may be awarded right of possession by redemption, that if by the account any surplus amount be found due to the plaintiffs besides possession of the property, upon taking Court-fees, may be awarded against the defendant or defendants from whom it may be found due, that the sales held on the 16th August 1897 and the 35th July 1902 and the 16th November 1908 may be set aside.

That costs of suit with interest may be awarded to the plaintiffs against the liable defendants. That any other relief that may in justice be required may be granted to the plaintiffs.

The learned Subordinate Judge found on the facts that the debts were not contracted for immoral purposes, that the sale proceedings were in order, that the mortgagees at the time of their suits upon the mortgages of 1891 and 1892 had no notice of the existence of the plaintiffs, and that, therefore, the proceedings against Lachman Prasad Singh were good proceedings and passed the whole property to the auction-purchasers, Finding, therefore, that the plaintiffs Nos. 1 to 4 had no title to the property he dismissed the suit. Against the decree made the plaintiffs now appeal.

In appeal it is contended, firstly, that though the decision in the case of 18 CWN 968 (Privy Council) by their Lordships of the Judicial Committee precludes the argument that where a debt is contracted for family purposes it is necessary to make the minor sons of the family parties to the case, it may still be said that inasmuch as the village Powara round which the whole contest in this Court centres was not a part of the mortgaged property, it is necessary to examine carefully the proceedings u/s 90 of the Transfer of Property Act, to ascertain whether in fact it was intended to bring to sale the property of the whole family or only the share in that property of the judgment-debtor on the record, Lachman Prasad Singh. Failing success on this ground it is suggested that there is upon the record a considerable body of evidence which will show that Eknath Sahay was in a position of confidence as an employee of Lachman Prasad Singh, and in that position had obtained a special knowledge of his affairs and that on well-known rules of English equity any purchase made by one in his position must enure to the benefit of his employer. The transaction assailed is the purchase from Manmatha Nath Dey on the 23rd August 1906 of Powara, of which the real value is asserted to be Rs. 80,000, by Eknath for Rs. 500. For a stranger the mokurrari, the ijara and Harbans Singh''s mortgage would create a hopeless camouflage. To Eknath by virtue of knowledge acquired as Lachman Prasad''s employee it would be apparent that the decree-holder-auction-purchaser had a clear title to direct posses-ion of the property. Eknath took advantage of this knowledge to make a bargain. His bargain must enure to the benefit of the sons of his employer, and though he has transferred his bargain to Jaimurat Koer, this lady is the wife of Ram Hari Lal and Ram Hari Lal was well aware of Eknath''s relationship to Lachman Prasad Singh and through Ram Hari Lal, Jaimurat Koer mast be held to have constructive notice of Eknath''s fraud.

Mr. Push''s argument on the first point is that though the decision in 18 CWN 968 (Privy Council) completely cuts away the ground from under his feet with regard to any property cohered by the mortgage, nevertheless a decree u/s SO for the sale of properties not covered by the mortgaged properties is in the nature of a personal decree and under that personal decree nothing but the personal property of Lachman Prasad Singh passed by the sale. The decision of the Judicial Committee in the case of 964616--> is a complete answer to this argument. In order to ascertain what passes upon an execution sale upon a decree made against the karta of a Mitakshara joint family it is necessary to look, firstly, at the circumstances in which the debt was contracted, secondly, at the form in which the plaintiff''s claim was pressed, thirdly, at the decree made, fourthly, at the attachment, fifthly, at the sale proclamation and lastly, at the certificate of sale. The money borrowed from Manmatha Nath Day was taken for the purpose of paying Government revenue. I can conceive no family interest higher than an avoidance of a revenue sale. The plaint (page 33 of respondent''s portion) attacks Lachmi Prasad as the head and managing member of the family. The decree made was against the whole interest of the family in the mortgaged property. In the proceedings u/s 90 the entire Powara village was attached, proclaimed and sold. All that the minor members of the family can now do is to show that the story that the money borrowed was taken for the payment of revenue is a myth. It is not even suggested in argument that this was so. Mr. Pugb''s argument is based upon the fact that the gale proclamation describes the property to be sold an sixteen annas of village Powara, the right, title and interest of the judgment-debtor. He suggests that the latter phrase limits the former, Obviously sixteen annas and the right, title and interest of the judgment-debtors were intended to be synonymous terms.

It is argued by Mr. Pugh that this obvious interpretation is negatived by the value set upon the property, I am unable to appreciate this argument. At the date of the sale Lachman Prasad had at the time two sons. Mr. Pugh says Powara was worth Rs. 80,000. If it was intended to put an accurate value on the individual share of Lachman Prasad that value would be Rs. 26,666. The value Rs. 500 was estimated not on a consideration of the interests to be sold but upon the hideous clouds upon a title to possession. If the mokurrari was genuine the property was worth only Rs. 5 per annum. If it was not genuine the ijaradar had to be considered. No one but a lathial would have dared set foot in the village. Manmatha Nath Dey was not a lathial. Rs. 500 was a fair value for the privilege of holding a certificate of sale of this hornets'' nest. There is no substance in the argument based upon this valuation. The whole interest of the joint family was liable for the debt and was sold.

On the second part of the case Mr. Pugh realizes that he is arguing a case that was not made in the lower Court, but urges that on the long series of English decisions and Indian decisions on the point, an Appellate Court has the widest jurisdiction to give leave to amend the pleadings. This is a case, be fays, in which poor minors have been ill-advised by incompetent practitioners in the Courts below. This appeal to one''s pity is somewhat discredited by the fact that these poor minors will, if the suit is successful, receive 3� annas of one and six annas of the other property and the remainder go to persons who have been deliberately brought into this litigation. A further reason for viewing this petition for amendment of the pleadings with some lack of sympathy is that the person who in English Law would be required to contest the proceedings of Eknath Sahay would have been Lachman Prasad Singh himself. He has preferred to stand in the background as a defendant. The suggestion that Jaimurat Kuer had notice of Eknath''s character and relationship with Lachman Prasad Singh is based on such flimsy ground that, so far as I can see, the only possible result, if the pleas now suggested by Mr. Pugh could be proved, would be a decree against Eknath Sahay for a refund, to Lachman Prasad as karta of the family, of the profits made by him on the purchase of Powara from Manmatha Nath Day. Eknath is not a party to the suit, and Lachman Prasad is not a plaintiff. For that reason we declined to allow the pleadings to be amended.

There is nothing on the record on which Jaimurat Koer can be asked to surrender the property to the plaintiffs. Eknath Sahay is said to have been a Mukhtar and employee in the plaintiffs family. He is a notorious character and well known as a practicing Mukhtar. In what capacity he was employed by Lachman Prasad is nowhere apparent upon the record.

In order to succeed as against Jaimurat Koer on the line taken by Mr. Pugh it was necessary to prove:

(1) that Eknath Sahay was employed in a confidential capacity by Lachman Prasad Singh;

(2) that in the course of that employment he obtained special knowledge of Lachman Prasad Singh''s affairs;

(3) that taking advantage of that special knowledge he made a purchase from Manmatha Nath Dey of his employer''s property at a price below its value, and

(4) that Jaimurat Koer was cognizant of all these facts.

From stray passages in the evidence Mr. Pugh has built up an ingenious structure which, when examined, is found to rest on nothing at all. Eknath Sahay paid Lachman Prasad''s revenue in 1898. So might any Mukhtar. Eknath Sahay instructed Pleaders to get Lachman Prasad released when arrested for debt in 1905. So might any Mukhtar. Eknath was a co accused with Lachman Prasad in a criminal case with regard to an affray or riot in connection with Mauza Powara. Both were acquitted. How Ram Hari Lal could have had knowledge of these three facts is nowhere apparent, and how, if he had knowledge of them, it could have amounted to notice of a fraud by Eknath Sahay as a confidential agent is even less apparent.

On case law the plaintiffs have no cause of action against defendant No. 1, Manmatha Nath Dey. On the facts proved they have no cause of action against defendant No. 2, Jaimurat Koer. No relief is claimed against defendants Nos. 3, 7 and 8. No title is in the plaintiffs for the maintenance of a suit against defendants Nos. 4, 5 and 6. The suit was rightly dismissed. I would dismiss this appeal with costs.

Ali Imam, J.

I agree.