Raghubir Prasad vs Misri Kahar

The appellants in this case are the heirs of one Kali Prasad. The defendants-respondents are the sons of one Musammat Jitni who, as has been found concurrently by the Courts below, was Kali Prasad''s mistress. In 1884, Kali Prasad bought a house in Patna. It is found as a fact that he paid the purchase money-out of his own pocket. It is admitted by both sides that the title deeds were made out in the name of Jitni and it is found as a fact that the title deeds remained in the possession of Jitni and her heirs up to the time of the institution of the present suit. On the death of Jitni in 1898, Kali Prasad appears to have continued to use this house as a resting plane whenever be visited Patna. On his death in 1905 his heirs took possession. In 1915 the defendants instituted a suit in the Small Cause Court claiming three years'' rent from the plaintiffs at Rs. 10 a month. The learned Small Cause Court Judge decided the issue of the relationship of landlord and tenant in favour of the defendants and gave them a decree. The plaintiffs, therefore, instituted the present suit for a declaration, firstly, that the house in dispute was not the house of the defendants; secondly, for a declaration that the decree passed in the Small Cause Court suit is ineffective and inoperative; thirdly, that it be declared that defendants have no right to execute this decree and in the alternative that if it be held that the rent-decree resulted in a legal dispossession of the plaintiffs, the plaintiffs should be restored to possession. The suit was dismissed by the learned Subordinate Judge and on appeal to the District Court the learned Judge stated that the only issue involved was that of the intention of Kali Prasad in making out the title-deeds in the name of Jitni. He accepted it as good law that the consideration money having come from Kali Prasad''s pocket, the presumption was that Kali Prasad made the purchase himself. But in view of the fact, firstly, that the house was one such as a man of Kali Prasad''s position would not buy for himself, and in view of the fact that the title-deeds remained in the possession of Jitni, and in view of the fact that when Jitni died, Kali Prasad entered not his own name in the Municipal Register but those of Jitni''s sons, he held that the presumption arising from the payment of the purchase money by Kali Prasad had been rebutted, and that it must be decided that the intention when making the purchase was that the purchase should be for the benefit of Jitni.

In appeal to this Court the first proposition advanced by Mr. Pugh is that he is not limited by the finding of fact, for the reason that all questions of intention must be regarded as mixed questions of fact and law. In support of this contention reliance is placed on a series of decisions which deal mainly with the existence of a custom. He might perhaps have also relied upon Criminal Bench rulings of the Calcutta Court, in which it has been decided that where the question of intention is in issue, a Court in revision is entitled to scrutinize the evidence and to decide for itself whether the facts proved establish the intention. The existence of a custom is undoubtedly to some extent a question of law for custom is in many instances itself law; where the existence of a law is in issue the question upon that issue must be to that extent a question of law, but the question with what intention a person did a certain act can hardly be said to be anything but a question of fact. Inasmuch as the question has been argued fully before us we propose to deal briefly with it, and say that in the circumstances of the case there was ample reason for holding that the purchase was in the first instance made for Jitni''s benefit. If Kali Prasad had wished to buy a house for himself, it is tolerably certain that he would have bought a house more suitable to his position than the house in question. If he intended it to be his own property he would, as the learned Judge suggests, have kept the title deed in his own possession and not made it over to Jitni, and in all probability would not have allowed the title deed and the receipts for Municipal taxes which he had himself paid to pass into the possession of Jitni''s sons on her death. The question of intention must be examined with reference to subsequent acts of the person alleged to have that intention. Kali Prasad''s acts during his life were all consistent with a desire that the house should be considered to be the property of Jitni, and inconsistent with a desire that it should be considered his own property. What happened subsequent to Kali Prasad''s death cannot affect the question of Kali Prasad''s intention. It may be that his heirs were able to oust the heirs of Jitni from this property, but that would merely give rise to a period of limitation. It cannot affect the main issue before us.

As further points of law Mr. Pugh suggests, firstly, that from the moment Kali Prasad paid the purchase-money himself the house was his, and that he could not transfer it to the lady merely by making out the title-deed in her name, it would require a registered document to complete any such transfer. With this contention we are not in agreement. It would be immaterial whether Kali Prasad went through the form of handing the money to Jitni. So that Jitni''s hands might be used for the payment of the money. If he intended to buy the house for the lady and throughout his negotiations represented that he was buying the house for the lady, the house as soon as the contract with the vendor was completed became the property of the lady. As a last resort Mr. Pugh suggests that the alternative prayers asked for in the plaint should be granted. There is no suggestion whatever that the rent decree was obtained by fraud. We have, therefore, no jurisdiction to say that the rent decree was inoperative or void or incapable of execution. And if indeed we are asked to make a declaration that the plaintiffs are in possession not as tenants of the defendants but by virtue of some right not specified, it is sufficient to say that the Specific Relief Act does not contemplate an action by a person not having a title. A trespasser cannot sue for a declaration that he is a trespasser.

The appeal is dismissed with costs.