Jado Prasad and Others vs Jamuna Prasad Singh and Others

Meredith, J.—This is an appeal by the defendants 1st party, and arises out of a decision in a suit for damages and compensation for breach of contract. The plaintiff-respondent, Jamuna Prasad, and his four brothers Singhesar Prasad, Benarsi Prasad, Bhagwat Prasad and Lachhmi Prasad were members of a Dayabhag family and separate. The descendants of Singhesar Prasad are defendants 2nd party. Benarsi Prasad died in 1980, leaving only a widow Sukhni, who also died before the suit. Bhagwat Prasad also died, leaving only two widows, Kumode Kumari and Pratima Kumari.

On 15th July 1921, all the branches of the family except Singhesar Prasad''s, mortgaged 23 bighas and odd of land for a sum of Rs. 1200 to the defendant 3rd party Purandar Prasad. Subsequently, on 7th October 1923, all five branches of the family sold about 25 bighas of land for a sum of Rupees 3500 to the appellants. Under the terms of the kebala a sum of Rs. 1560, the amount then due as principal and interest, was left with the vendee to pay off the above mortgage. The mortgage debt, however, was never paid off by vendee--with the result that a suit was brought upon the mortgage which resulted in a decree and sale. Purander bought the mortgaged property, and on 14th September 1937, obtained delivery of possession. Out of the mortgaged property about 11 bighas was included in the property sold to the appellants, but 14 bighas and. odd specified in Schedule IV to the plaint was not so included. The result, therefore, was that as a result of the failure of the defendants 1st party to carry out the terms of the contract the plaintiff''s family was dispossessed of this 14 bighas of land. For this loss compensation was claimed.

The suit was originally filed not only by Jamuna Prasad but also by the sons of Lachhmi Prasad, and by Kumode Kumari one of the widows of Bhagwat Prasad, all as paupers. Jamuna Prasad, however, was alone found to be a pauper, so Kumode Kumari and the sons of Lachhmi Prasad were removed from the category of plaintiff.

Jamuna Prasad claimed compensation, in respect of half the lost property, one-fourth of his own right and one-fourth as reversioner of Benarsi Prasad.

The defence, so far as now material, was, first, that the vendors had not themselves carried out the terms of the contract. Kumode Kumari had executed the sale deed, but nothing was said to the vendees about the existence of Pratima Kumari and she had not joined therein. The vendors purported to transfer the entire share of Bhagwat. In fact, however, at the time one-tenth share of Pratima Kumari was under attachment in execution of a money decree at the instance of one Babu Nand Kishore Lal. As a result the share of Pratima was subsequently sold by auction and passed out of the possession of the appellants. In the written statement it was merely asserted that these properties on being sold on auction were purchased by one Santlal Missir, a farzidar of Bhola Nath Singh, as a result of which several of the properties purchased by defendant 1 under the deed of sale went out of his possession and remained in the possession of the auction purchaser, and subsequently in possession of the purchaser from the auction-purchaser, no further details being given. Defendant 1, who alone gave evidence for the appellants, was little more definite. He started by saying he had not got possession over the share of Pratima. He went on to say that Babuji purchased the share of Pratima in execution of the decree of Nand Kishore, and that Mosahib Lal, father of Medni, purchased Pratima''s share in the said land in that execution. Subsequently, Medni filed a partition suit against him, and took the share of Pratima. In cross-examination he stated that he could not say of which plot Medni dispossessed him. He could not state its boundaries. He was dispossessed of 1 1/4 bighas. He had not seen the dakhaldehani.

In support of this case, however, documents were filed; Ex. B a writ of delivery of pos-session of the year 1926 in favour of Santlal Missir against Mt. Pratima Kumari and Kumode Kumari in respect of one-tenth share of Pratima Kumari out of 17 bighas and odd occupancy nakdi gora jot land lying in mauza Bhawanandpur Tauzi No. 801, covers more of the kewala plots but there is also Ex. G judgment in a Title Suit No. 101 of 1931 whereby Medni Prasad and Baleshwar Prasad were allowed partition against the appellants in the one-tenth share of Mt. Pratima Kumari said to have been purchased by Medni Prasad in the farzi name of Baleshwar Prasad, on 26th April 1927, who had got into possession thereof by virtue of dakhaldehani on 13th December 1928, jointly with the defendants Jado Prasad, etc., (the appellants) who were the purchasers of the remaining share. This judgment is dated 31st August 1932. There is nothing to show if and when a separate patti was carved out in accordance with the direction of the judgment, but there had been a claim for mesne profits and it was ordered that the amount of compensation for mesne profits would be ascertained in a separate proceeding on application being made thereafter. Exhibit H is a decree in Suit No. 101 of 1931, dated 18th January 1986, which shows that the claim related to one-tenth share in Khasra Nos. 128, 78 and 49 comprising in all 11 bighas 13 kathas 17 dhurs which land was transferred under the sale deed (Ex. 2) of 1923, as appears from the schedule thereto. It appears from this decree that the case was compromised for a sum of Rs. 50 presumably on account of the claim for mesne profits, and the decree was merely one awarding that sum to the plaintiff. Thus, what was established was apparently that the transferee of Pratima''s one-tenth share of 11 bighas and odd of the vended property got joint possession thereof with the appellants on 13th December 1928. It is to be seen that the very same land was amongst the properties mortgaged to Purander Prasad in 1921 under the mortgage bond (Ex. 1).

In these circumstances the appellants claimed that they were entitled to refrain from carrying out their part of the bargain, and so did not redeem the mortgaged property. I may here note that what the appellants did do appears from the endorsements upon the mortgage bond (Ex. 1). They paid nothing until 1928 when the sum of Rs. 1000 was paid by defendant 1 Jado Prasad. In 1930 three further payments were made of Rs. 50, Rs. 125 and Rs. 150. In 1934 a final payment of Rs. 80 was made, all these payments being marked towards interest.

The appellants took the further defence that the plaintiff''s family had not been dispossessed from certain portions of the mortgaged property by reason of Purander''s decree, but had previously lost those portions either by sale or mortgage, or in the case of two plots as the landlord stepped in on account of the transfer of non-transferable raiyati holdings.

The learned Subordinate Judge accepted the defendants'' case with regard to the last mentioned plots, Nos. 1036 and 692, as the appellants in their capacity of landlords had got possession over those plots by an ejectment suit on the ground of non-transferability of occupancy holdings. He held, the plaintiff entitled to compensation for his half share of the value of the remainder of the 14 bighas and odd. He observed that with regard to the land sold by the plaintiff or other members of his family there had been stipulations in the kebalas that in the event of the vendees being dispossessed subsequently the vendors would have to refund the purchase money, and with regard to certain properties which had been mortgaged the plaintiff and his family still held the equity of redemption. He assessed the value of the lands at Rs. 200 per bigha, considerably less than the value placed upon them by the plaintiff. He, therefore, decreed the suit in part with proportionate costs, dis-allowing interest for the period prior to the institution of the suit.

There has been no cross-appeal, so we are not concerned with the lands in respect of which the claim has been disallowed or the valuation of the lands. Mr. Sarju Prasad for the appellants has argued upon the two defences which I have set out.

Before I deal with his argument, I wish to emphasise one thing. The reason put forward by the appellants for their failure to pay off the mortgage dues is certainly untrue. By that failure the appellants themselves lost about 11 bighas of the vended property. It is impossible to suppose that they would allow all this property to go out of their hands, merely because their vendors had failed to give them a good title to one bigha and odd. Moreover, the understanding between the parties was plainly that the Rs. 1560 left with the vendees should be paid off at once, because otherwise as interest was mounting up it would be insufficient for the purpose. Yet the appellants paid nothing until 1928, when the sum payable had become very much larger, and also they went on paying small sums, though never sufficient, up to the year 1984, years after December 1928, the date of Medni Prasad''s dakhaldehani. The inference from these circumstances can only be that the real reason for failure to pay was that the appellants could not raise the money, and was independent of any breach of contract on the part of their vendors. It is also clear that any claim by the appellants with respect to the share of Pratima in the vended properties could only be in respect of the years 1929 to 1937, since prior to the former date they were in enjoyment of those properties, and subsequently to the latter date they had independently lost all interest irrespective of any claim by Medni Prasad.

Turning now to Mr. Sarju Prasad''s arguments: upon the first point, he relies upon Section 55(2), T.P. Act, read with Sections 51 and 54, Contract Act. Section 55(2) provides that in the absence of a contract with the buyer the interest which the seller professes to transfer to the buyer subsists, and that he has power to transfer the same. It is unnecessary to consider whether under this provision the plaintiff Jamuna Prasad would be deemed to make any such contract with the buyer in regard to the interest of Pratima, who was separate from him though that may be doubted--because Section 55(2) has no application to the present case, there being a contract to the contrary. In the sale deed (Ex. 2) the vendors in the clearest terms make themselves jointly responsible for any defect of title subsequently discovered. They say:

The vended property is free and clear from all flaws and incumbrances. Save and except the debts mentioned above, there is no other debt against the said vended property. If, on the contrary, any kind of debt is found to exist against the vended property, the responsibility for the repayment thereof shall rest with the persons and other properties of us, the executants, our heirs and representatives.

The sale deed also itself provides in express terms the remedy for anything of the kind:

If by the act of us, the executants, or our heirs and representatives, or on any accounts, the vendee is dispossessed of the vended property, in that case, we the executants, our heirs and representatives shall pay the mesne profits and damages from our other properties respectively.

There is a further stipulation in the sale deed that with regard to the 11 bighas and odd of quaimi jot land the vendee was to enter into possession only in the year 1985 pasli (1928) on account of its being transferred under a sadhua patwa deed, and we find from the evidence of defendant 1 that some land, which he describes as 8 to 9 bighas, was at the time of his purchase under sadhua patwa of the Manjaul factory. The land, he says, was released by the factory 5 or 6 years after his kebala, and he got possession over it. He says that he did not know this fact when he took his kebala which is of course false, as the whole thing is set out in the kebala itself. Thus under the kebala, the appellants were not in any event, to get possession of the occupancy jot lands, including the lands with which we are concerned, as opposed to 11 bighas and odd of kheraji lands in mauza Bhawanandpur until the year 1928.

Section 51, Contract Act, upon which Mr. Sarju Prasad relies, provides that:

When a contract consists of reciprocal promises to be simultaneously performed, no promisor need perform his promise unless the promisee is ready and willing to perform his reciprocal promise.

This Section has obviously no application. We are not dealing with reciprocal promises to be simultaneously performed. The vendee was to pay off the mortgage at once, or in the immediate future. He had also to pay off certain other debts for which part of the consideration was left with him, and to pay the balance in cash. The vendors in return were to place the vendees in immediate possession of portion of the property and in possession of the remainder in 1928. It has not been shown that the vendors failed to carry out these promises in all respects. The first breach of the contract was by the. vendees.

True, the contract went on to provide for the possible future contingency that the vendees might be in whole or in part dispossessed by reason of some undisclosed defect of title; but for any such contingency it also-set out the remedy of the vendees, namely, a claim for damages and compensation against the vendors. These provisions being expressly set out in the contract, the vendees would obviously not be entitled to resort to an entirely different remedy for which the contract did not provide. The contingency did not arise until December 1928, when the share of widow M was lost to the vendees, by which time the vendees themselves were already in default.

The obligation laid upon the vendees under the terms of the contract to pay off the mortgage was upon those terms wholly independent of any subsequent dispossession of the vendees which might eventuate, and for which the remedy was expressly and independently provided. The contract was not at all the sort of contract contemplated in Section 51, Contract Act.

Nor has Section 54 any application. That Section relates to contracts consisting of reciprocal promises, such that one of them cannot be performed, or that its performance cannot be claimed, until the other has been performed. The contract with which we are concerned does not provide that performance of the one portion shall be dependent upon the performance of the other, for there was no promise of the vendors upon the performance of which the payment of the Rs. 1560 to the mortgagee was made to depend. On the contrary, this sum of Rs. 1560 was the money of the vendors. It was entrusted to the vendees for a particular purpose, and clearly upon the terms of the contract the vendees had to apply it to that purpose upon the vendors carrying out their immediate promises, which they did by handing over the property. The vendees withheld payment not because of any breach of the terms of the contract by the vendors but for other reasons. They could not be allowed to say that they withheld payment by reason of any default on the plaintiff''s part. Had, however, they actually done this it would have been something they were not entitled to do under the contract.

I would go further. The mortgage could not be split. It had to be redeemed as a whole, or not at all. If therefore the vendors had failed at the time of the sale to put their vendees in possession of this very small proportion of the vended property, one bigha and odd out of 25 bighas, the vendees would still not have been entitled, either in equity or upon the actual, terms of the contract, to refuse to redeem the mortgage, or to leave an unpaid amount thereof proportionate to the extent of their failure to get possession.

The suit is really one under the provisions of Section 73, Contract Act. This Section provides that

When a contract has been broken, the party who suffers by such breach is entitled to receive, from party who has broken the contract, compensation for any loss or damages caused to him thereby, which naturally arose in the usual course of things from such breach, or which the parties knew, when they made the contract, to be likely to result from the breach of it.

This provision is strictly applicable, and in my judgment, the learned Subordinate Judge was right in holding that the plaintiff was entitled to compensation for any loss or damage caused to him by the defendants'' breach of the contract. It is true that upon the same provision and indeed under the express terms of the contract, the appellants had a claim for damages against the plaintiff. The appellants, however, in this suit have claimed no set off. Nor could they have done so. The suit was filed in 1941, the dispossession of the appellants was in 1928, and any claim, therefore, was in 1941 long barred by limitation.

I turn now to Mr. Sarju Prasad''s second argument. Under the terms of Section 73, the compensation is only for loss actually suffered, and such compensation is not to be given for any remote and indirect loss or, damage sustained by reason of the breach. The learned Subordinate Judge was therefore, in my opinion, wrong in holding that the plaintiff could get any compensation in respect of lands which had been sold by him or Mt. Sukhni before 14th September 1937. In respect of such lands the plaintiff or his predecessor Mt. Sukhni had already received full compensation in the purchase price, and no further loss was caused. It may be that the plaintiff may subsequently be sued by his vendees for return of the purchase money. That, however, may or may not happen. If it is a mere contingent liability, and not as yet at least actual loss. Section 73 would give no cause of action in respect thereof, unless and until the damage is actually suffered. No compensation can, therefore, be allowed in the present suit in respect of any such lands, which are covered by the kebalas Exs. B, C and D.

Certain sudbharna deeds (Exs. 4a to 4d) were also executed in respect of portions of the property. In respect of these, all that is left to the plaintiff is the equity of redemption. That is all he has lost, and consequently the measure of his compensation must be the value of the equity of redemption. This will have to be worked out by the Court below.

In short, I would allow the appeal only to this extent that the plaintiff shall get no compensation in respect of the lands covered by Bxs. B, C and D, in respect of the sudbharna lands he shall get compensation upon the basis of the value of his share of the equity of redemption. This should be worked out by the learned Subordinate Judge after taking evidence if necessary. A fresh decree should be prepared by the learned Subordinate Judge upon these lines, and should carry costs in proportion to success.

As to costs of the appeal, as it has succeeded only to a very minor extent. I consider the appellants should pay the respondents'' costs.

Ray, J.

I agree.