Mahanth Ram Charan Das vs Gossain Ramlakhan Das

Ross, J.—The question in this appeal is whether in the circumstances of the case the learned Subordinate Judge was wrong in reversing the decision of the Munsif and in giving the plaintiff-respondent a decree for maintenance at the rate of Rs. 40 a year and charging the same upon the properties of a certain muth, on the basis of an ekrarnama executed on the 23rd of April, 1905.

The appellant and the respondent were both chelas of the late mohunt of the muth. The ekrarnama recites that according to the custom and practice of the muth there is one mohunt only and two chelas cannot become mohunts at the same time. After the death of the late mohunt both the chelas had become mohunts with the result that disputes had arisen between them. They therefore agreed that the appellant should be declared to be the mohunt and the respondent adhikari of the said muth; and they declared that they should, to the end of their lives, be bound to act according to the terms sets forth in the ekrarnama. The material terms were set forth in the ekrarnama. The material terms were that the appellant should remain mohunt and malik of all the properties of the muth during his life-time; and the respondent adhikari during his life-time; and that in the event of difference between the parties the appellant would give to the respondent Rs. 40 a year for maintenance out of the income of the properties of the muth and this should remain a charge on the muth properties. Notwithstanding the terms of this agreement the respondent, on the 27th of April, 1909, brought a suits against the appellant in the Court of the District Judge claiming the mohuntship. That suit was dismissed both by the trial Court and on appeal by the High Court.

On these facts the learned Counsel for the appellant contends that the respondent has been guilty of acts tending to the subversion of the relationship created by the ekrarnama, and consequently cannot claim any relief under it; and that the consideration for the ekrarnama has failed by reason of the conduct of the respondent. In support of his argument he referred to the judgment of Lord Cranworth in Blackett v. Bates (1865) 1 Ch. App. 117 and to the decision of the Privy Council in Srish Chandra Roy v. Banamali Roy (1904) 31 Cal. 584. The learned Vakil for the respondent contended that these decisions have no application to the present case, because they were decisions in suits for specific performance, whereas the present is a case of an executed agreement. It is true that in considering the present claim, which is a claim for money, the Court will not be influenced by the equitable considerations which arise in a suit for specific performance; but the decision of the Judicial Committee is not without effect in the present case. That was a suit for specific performance of an agreement for a lease which was part of a general agreement entered into by the predecessors of the parties to the suit in settlement of a suit then pending between them. One of the documents constituting the settlement was an ekrar by which the defendant in that suit agreed to acknowledge the validity of the adoption of the then plaintiff. Notwithstanding that ekrar he subsequently contested the adoption in various litigations. The decision proceeded on the grounds that there had been a failure of consideration for the agreement and also that the conduct of the plaintiff''s predecessor was at variance with and amounted to a subversion of the relation intended to be established by the compromise. Specific performance of the agreement was therefore refused. The observations of their Lordships on the nature of the compromise are relevant to the present question. In the course of his judgment Lord Davey said: "The second and principal point of the appellants was characterized by more boldness than plausibility. It was that Banwari Lal (that is, the original plaintiff) had received the full benefit of the compromise by being armed with the ekrar as a shield against the attacks of Krishna (that is, the original defendant) and therefore the agreement in suit was for an executed consideration.... The security of his title to the zemindari was of immeasurably greater importance to Banwari Lal than the mere question of the patni. And their Lordships have already expressed their opinion that the principal consideration to Banwari Lal for the agreement was to obtain such security and immunity from future attacks. In short they do not give the ekrar the restricted effect suggested by the learned Counsel, but they think that its language necessarily imports an agreement by Krishna to abstain from questioning the validity of the adoption for the future. Their Lordships are of opinion that there has been a failure of the consideration for the agreement in suit." Now this language applies with even greater force to the present ekrarnama, because there is an express stipulation that the appellant should remain mohunt during his lifetime and that the parties to the end of their lives would be bound to act according to the terms of the ekrarnama. The ekrarnama consists of mutual promises each of which is the consideration for the other. The respondent promised to recognize the appellant as mohunt throughout their lives and the appellant promised to recognize the respondent as adhikari throughout their lives. The object of the ekrarnama was expressed to save the property of the muth from the rain and loss likely to arise from the dispute between the two parties who had both been installed as mohunts. By his action in bringing a suit for the mohuntship the respondent broke his promise and defeated the whole intention of the agreement; and he can therefore no longer hold the appellant to his part of the contract.

The learned Vakil for the respondent contended that the clause about maintenance was an isolated agreement for compensation to the respondent in the event of his losing the post of adhikari. In my opinion, it is impossible to construe the document in this way. The recognition of the respondent as of adhikari was subject to this that in the event of differences arising between the parties which should involve his ceasing to be adhikari, he would be entitled to maintenance. This is not an independent agreement, but an integral part of the whole agreement; and the terms of the agreement as a wholes having been broken by the respondent he is not entitled to any benefit under this subsidiary clause.

I therefore hold that the respondent is not entitled to the benefit of this agreement and that this claim for maintenance must fail. The result is that the appeal is decreed with costs and the suit is dismissed with costs throughout.

Mullick, J.

I agree. I only wish to add that the defendant is not estopped from denying that the ekrarnama is enforceable against him. It is true that in the former suit he raised an issue as to the validity and genuineness of the ekrarnama. The plaintiff denied execution but the Court found that he had executed the document and that he had therein admitted the title of the defendant. Whether the document was enforceable against the defendant was neither litigated nor decided and therefore no question of res judicata or estoppel against the defendant arises.