Deblal Jha vs Kuman Das and Others

Adami, J.—This second appeal arises out of a suit for contribution. One Musammat Madanwati Ojhain held an istemrari mokarrari tenure of an eight-annas share of village Dhusarpatti Tikapatti under the Maharajadhiraj of Darbhanga. Her son. defendant No. 1, and her grandson obtained-from her what is described as a patni, but is really a sub-tenure of the eight-annas share, and the plaintiff had a darpatni, or really an under-tenure, under defendants Nos. 1 and 2. The landlord instituted a suit for arrears of rent against Musammat Madanwati Ojhain and obtained a decree, for Rs. 660-6-8. He took out execution, but before issue of attachment and sale proclamation Musammat Madanwati Ojhain died, and before notice issued on defendants Nos. 1 and 2, as her heirs, the plaintiff, to save his sub-tenure, deposited, on 3rd February 1920, Rs. 660-6-8 in Court and thus avoided the sale. The plaintiff in the suit has claimed payment to him by the defendants of this sum together with Rs. 38-4-7 for interest and costs for making the deposit.

The defendant No. 1 contested the case. He pleaded that his mother had sold her istemrari mokarrari interest to one, Jayprakash Narayan on the 8th January 1913, so that the decree against her was of no force, that the Musammat had died before attachment and sale proclamation, so that those processes were invalid and no sale could have been held in those execution proceedings, that the defendants Nos. 1 and 2 had not been served with notice and substituted in the proceedings and, therefore, they could not have been bound by the sale, if held; and lastly, that the deposit made by the plaintiff was voluntary, and that the sale would not have caused loss to the plaintiff nor has the deposit conferred benefit on the defendants.

In the Trial Court it was held that the sale in 1913 to Jayprakash Narayan was a benami transaction, and that Musammat Madanwati Ojhain was in possession of the istemrari right and the defendants Nos. 1 and 2 are now in possession. The learned Munsif declined to find that the decree was invalid. He held that the deposit was made by the plaintiff, but that it was made unnecessarily since his interest was a "protected" interest, and the property would have passed to the purchaser subject to that protected interest u/s 153, Bengal Tenancy-Act. He depended on Section 160 (b) for his finding that the sub-tenure was a "protected interest." As, therefore, the plaintiff was not interested in the avoidance of the sale Section 69 of the Indian Contract Act could not help him. The learned Munsif decided also that Section 70 of the Indian Contract Act would not apply, since the plaintiff did not intend to do'' anything in the interests of the defendants, and in fact the defendants opposed his making of the deposit. It was decided, therefore, that the plaintiff was not entitled to any contribution and the suit was dismissed.

On appeal the learned Subordinate Judge has decided that the sub-tenure of the plaintiff was not a protected interest within the meaning of Section 160 (b) of the Bengal Tenancy Act, and thus the plaintiff was interested. Also it was held that the defendants were benefited by the deposit, as, since they were the heirs of Musammat Madanwati Ojhain, they were bound to pay the decretal amount or lose the property. He declined to consider what would have been the effect of the sale, if held, since that question was not within the scope of the suit. As the sub-tenure was not a registered and notified encumbrance it was liable to be annulled by the sale, and, therefore, the plaintiff was interested and the deposit was not voluntary or gratuitous or officious. The result of the appeal was that the suit was decreed.

Mr. Sambhu Saran on behalf of the defendant-appellant argues, firstly, that the plaintiff was not interested to make the payment because his interest was a "protected interest" and would not be threatened by the sale. The learned Subordinate Judge has met this argument by pointing out that Section 160 (b) refers to a temporary revenue settlement; and there is nothing to show that the rent for the sub-tenure was fixed only for the period of any temporary settlement. Section 160 (b) will not help the appellants; on the annulment of the tenure by sale for arrears the sub-tenure would cease with it. The plaintiff was interested in avoiding the sale.

The next point taken is that the defendants were not bound to pay the decretal amount, since Musammat Madanwati Ojhain had sold the tenure in 1913 and was no longer in possession, and since in the execution proceedings the lady died before attachment and issue of sale proclamation, so that any sale held would have been invalid, the defendants not having been brought on to the record. No notice had been served on them under Order XXI, Rule 22.

Now, if the decree was bad because of the sale in 1913 which, as a matter of fact, the Munsif found to be a benami transaction, the proper course for the defendants to follow was to appeal against the decree; they cannot plead ignorance of it, for they were informed about the deposit. They were the heirs of the Musammat and as such would be bound to pay the decretal debt. Until set aside the decree was good. Whether execution was taken out or not, and whether, if taken out, the execution was bad, the defendants, as heirs, were bound to pay the decretal debt out of the assets of the Musammat in their hands, and as heirs they held the istemrari mokarrari tenure from the Musammat.

I cannot find the defendants have shown that they were not bound to pay the debt by reason of any defect in the decree or in execution proceedings.

It is next contended that the conditions necessary for the application of Section 70 of the Indian Contract Act do not exist in this case, since the deposit was made in the interest of the plaintiff and not in that of the defendants. It is urged that the deposit was an officious act of the plaintiff which did not bind the defendants. There can be no doubt that the deposit benefited the defendants, for it enabled them to remain in possession of the tenure, but it is true that the deposit was made altogether in the interest of the plaintiff. However, it is unnecessary to consider Section 70 further, for clearly Section 69 applies.

The simple facts of the case are that, a decree, which has not been appealed against, was passed against Musammat Madanwati and on her death her heirs were bound to pay the decretal debt or lose the property. The property was about to be sold and the plaintiff being interested to save his sub-tenure, paid the debt and saved the istemrari mokarrari-tenure for the defend-anta and his own sub-tenure. Under these circumstances the plaintiff was entitled to contribution from the defendants.

The last contention of Mr. Sambhu Saran is that the plaintiff was not entitled to repayment of anything more than the sum deposited, and that the claim to interest cannot stand. There was no contract or agreement to pay interest, and I think the contention as to this must succeed. With regard to incidental expenses incurred in making the deposit, I think the plaintiff is entitled to them; they are quite paltry.

Accordingly the appeal will be dismissed except with regard to payment by the defendants of interest'' on the sum of Rs. 660-6-8, and the decree of the lower Appellate Court will be modified by a deduction of the sum entered in the schedule to the plaint as payable for interest.

The respondents will get proportionate costs throughout.

Sen, J.

I agree.