Dhanu Mahton vs Ajodhiya Prasad Singh and Others

Courtney-Terrell, C.J.—This is an appeal from the appellate judgment of the Additional Subordinate Judge of Darbhanga in a suit by the plaintiff to recover 8 bighas of land which had formerly belonged to one Lalchand Mahto who died in September 1925. The plaintiff is admittedly the next reversioner of the deceased Lalchand Mahto. After the death of Lalchand Mahto his widow Mt. Daibati succeeded to his estate.

This lady in January 1927 contracted a second or sagai marriage with one Rupan Mahto and after her second marriage she execute a kabala to the defendant first party for a sum of Rs. 1,455 and sold to him the 8 bighas, of land the subject of contest. The purchase money was applied in discharging certain debts which were supposed to be a burden on the estate of the deceased Lalchand Mahto. The Courts below have found that inasmuch as the lady had already contracted a sagai marriage at the date of the kabala the kabala is void because she had no title to transfer the land in dispute, and this finding is not questioned. But the lower appellate Court has held that before the plaintiff who is the next reversioner and the real owner of the property, which the lady purported to convey can recover possession he must reimburse the defendant first party the sums out of the purchase price of Rs. 1,455 which were expended on the payment of certain of the debts of the estate.

Now the material debts with which I am concerned are a sum of Rs. 350 paid to satisfy a sudhbharna bond executed by the widow Daibati to one Ram Pratap before the date of the second marriage but after the decease of her husband. This is dated September 1925. The consideration expressed in the sudhbharna bond is that it was to pay off a debt of Rs. 150 owing to the deceased Lalchand Mahton on a chithi yaddasht and further a sum of Rs. 200 which was to be utilized by the widow in paying his sradh expenses. The 8 bighas of land or some material portion of it was taken into possession by the sudhbharnadar as security for the loan.

The second sum of Rs. 205 was a debt due on a handnote executed by the lady to one Nirsu Singh and dated 27th September 1926. It has been found as a fact that this sum was due having been taken to perform the annual sradh ceremony of the deceased. It is not possible to contest these findings of fact. With regard to the first debt of Rs. 350 the plaintiff impleaded Ram Pratap as the defendant fourth party.

The plaintiff in his plaint set forth a very distinct allegation that the alleged debts to which Rs. 1,455 was devoted to discharging were debts incurred without legal necessity and invited the Court to

decide on the merits of that contention. The Court acceded to that invitation and has found that in the case of both debts they were in fact incurred for purposes of legal necessity. Some contention arose before me as to whether there was an express finding to this effect, but having read the finding of the lower Court and also that of the lower appellate Court which reversed certain findings of fact of the trial Court I have no doubt that the findings are as I have said and it is not open now for the plaintiff to contend that the said debts were not for matters of legal necessity.

The sum of Rs. 1,455 included certain other debts, namely, a sum of Rs. 140 paid to one Gobind Barai to discharge a sudhbharna bond executed by the deceased himself and as to this sum no dispute is raised by the plaintiff-appellant to the contention that this is binding upon him and he must discharge it. As to a further sum of Rs. 550, that was to discharge a mortgage bond by the widow Daibati to one Kanhai, but that amount has not in fact been parted with and remains in the hands of the defendant and no question arises as to the duty of the plaintiff to reimburse this sum.

The only debts therefore with which I am concerned are the sums as I have said of Rs. 350 on Ram Pratap''s sudhbharna and Rs. 205 on Nirsu Singh''s hand note. An argument was raised before me very clearly and succinctly by Mr. Sarju Prasad on behalf of the plaintiff to the effect that the matter of legal necessity was of no importance in the case and the decision of fact arrived at by the lower Courts should not be held to bind him because the kabala was void ab initio having been executed by a person who had no title. In so far as the question of legal necessity is concerned it is to my mind concluded by the findings of fact which were arrived at on the express invitation of the plaintiff in his plaint and he must abide by the decision.

The case is really governed, in my opinion, by Section 69, Contract Act. The defendant who under the findings of the Courts appears to have been, at any rate to the extent that is contemplated by Section 69, a bona fide purchaser for value as it may be expressed or is at any rate a person interested and he came into possession of the estate. He then paid off these two sums of money with which I have to deal which the plaintiff would ultimately have to pay.

It is perfectly true that as regards the sum of Rs. 350 at the time of the actual payment by means of the purchase money due under the kabala that money was not due, the due date of the sudhbharna to Ram Pratap being April or May 1928 and the payment under the kabala being in March 1928.

Nevertheless by the terms of the sudhbharna the mortgagee was in possession and by payment before the due date the defendant released the estate which was to its benefit and it might quite reasonably have been made by the plaintiff himself. At any rate the plaintiff would ultimately have had under the findings of fact to discharge this debt. Rs. 205 on the hand-note was payable on demand and therefore the defendant was justified in discharging the liability at the earliest possible date. Therefore the plaintiff is in the position of seeking to recover an estate, the defendant is in the position of admitting, and he must admit on the findings, that he is not entitled to the estate and must deliver it up, but, on the other hand, while he was in possession of the estate being a person interested, he has paid off debts which would ultimately have to be discharged by the plaintiff and the plaintiff must therefore reimburse any sums so paid.

There is a cross-objection by the defendant with regard to a sum of Rs. 200, the balance of Rs. 1,455 which was paid in cash to the lady. It can scarcely be argued seriously on behalf of the defendant that this was a payment which the plaintiff was in any circumstances liable to pay and the defendant has therefore no right to recover that sum as one of the conditions for delivering, up the property.

The result is that the appeal and the cross-appeal are dismissed. In my opinion the costs have not been materially increased by the cross-appeal and the plaintiff-appellant must pay the costs of his appeal.