Sital Prasad Sukul vs Ramsaran Missir and Others

Dhavle, J.—This is an appeal by the plaintiff. Ramyad Gosain had a milkiat share in mauza Sawsara which he gave in zarpeshgi to defendants 6 and 7 for Rs. 1,600. He afterwards sold it to defendants 1 to 3 and one Parmanand, a predecessor of defendants 4, 5 and 8, for Rs. 2,750, out of which Rs. 1,600 was kept with the vendees for paying off the zarpeshgidars. In 1922 the plaintiff brought a pre-emption suit against the vendees, and this suit was decreed in his favour in September 1923. Six weeks afterwards he moved the Court for being permitted to deposit Rs. 1,150 only, so as to have Rs. 1,600 in hand for paying off the zarpeshgidars. This prayer was not allowed, and the plaintiff thereupon deposited the entire amount, viz. Rs. 2,750, in accordance with his pre-emption decree. About two months afterwards, the zarpesbgidars moved the Court for permission to withdraw their Rs. 1,600 out of the deposit made by the pre-emptor, and stated that they had already given up possession. This application of the zarpeshgidars was disallowed. A year afterwards, in February 1925, the vendee defendants withdrew the entire amount deposited by the plaintiff. As the zarpeshgidars had given up possession, plaintiff had come into possession of the property and his possession continued for three years when it came to an end because the zarpeshgidars, who had not been paid off in fact, brought suits for rent against the tenants in actual possession of the lands, and the tenants'' defence that they had attorned to the plaintiff was overruled. Plaintiff therefore brought the present suit in March 1930 for recovery of possession with mesne profits. He also made alternative prayers that he may be given a decree for Rs. 1,600 against the vendees, or that they may be ordered to pay off the zarpeshgidars and the zarpeshgidars ordered (upon such payment) to give up possession in favour of the plaintiff. The trial Court gave the plaintiff a decree for Rs. 1,600 against defendants 1 to 3, holding that defendants 4, 5 and 8 were not liable for the act of their relative who had joined defendants 1 to 3 in withdrawing the deposit made by the plaintiff. Defendants 1 to 3 appealed, and the Additional District Judge, who heard the appeal, came to the conclusion that as against defendants 1 to 3, or defendants 1 to 5 and, 8, the plaintiff was not entitled to succeed unless the judgment in the pre-emption suit was vacated, but that as against defendants 6 and 7 he was entitled to a decree for redemption on payment of Rs. 1,600. I may say at once that such redemption was no part of the relief specifically sought by the plaintiff, and it is easy to see why he does not altogether appreciate the privilege of redeeming the zarpeshgidars by paying Rs. 1,600; for he has already deposited the entire sale-price in pursuance of the pre-emption decree.

Mr. Mukharji, who has strenuously argued this appeal on behalf of the plaintiff, has urged that the lower Court erred in holding on the authority in Ram Richcha Prasad Tewari and Others Vs. Raghunath Prasad Tewari and Others, that the plaintiff was not entitled to recover the Rs. 1,600 from those defendants who had withdrawn his entire deposit under the pre-emption decree. His argument is that though the plaintiff was not a party to the arrangement between Ramyad Gosain and his vendees, under which the latter kept Rs. 1,600 out of the consideration money in hand to pay off the zarpeshgidars, he is entitled, by reason of their withdrawal of the deposit made by him in their favour in accordance with the pre-emption decree, to hold them to their obligation of paying off the zarpeshgidars. In support of this contention Mr. Mukharji relied on Debnarayan Dutt v. Chunilal Ghose AIR 1914 Cal 129 and Dwarkanath Ash v. Priyanath Malki AIR 1918 Cal 941, in the latter of which oases, following the decision of their Lord, ships of the Judicial Committee in Khwaja Muhammad Khan v. Husaini Begam (1910) 32 All 410, the contention was accepted:

That the rule enunciated in Tweddle v. Atkinson (1861) 1 B & S 893 is not applicable in this country and that an agreement may in certain circumstances be enforced by a stranger thereto, that is, in what may be briefly described as oases of trust, quasicontract, or near relationship.

That principle is well established, but; it does not, in my opinion, help the plaintiff in this case, nor could it have been overlooked by Richards, C.J. and Banerji, J. in the Allahabad case of Ram Richcha Prasad Tewari and Others Vs. Raghunath Prasad Tewari and Others, already referred to. In the two Calcutta oases cited by Mr. Mukharji, there was no decree affecting the rights inter se of the parties and nothing to prevent them from being dealt with according to the rule of justice, equity and good conscience. In the present case, however, as in the Allahabad case, there is the decree which declared the plaintiff to be entitled to pre-emption, for which he was required to deposit in Court the Rs. 2,750 in favour of defendants 1 to 3 and Parmanand. The decree further entitled these defendants to withdraw the entire amount without any reference to the Rs. 1,600 that they had agreed with the original owner to pay (out of the sale-price) in redemption of the zarpeshgi of defendants 6 and 7. Nor can it be said that the plaintiff was not aware, before he obtained such a pre-emption decree, that the zarpeshgi had not been paid off; the trial Court refers to the evidence given by defendant 1 in the pre-emption suit that he had not yet paid off the zarpeshgidars. Notwithstanding this, the plaintiff took no steps to amend the frame of his suit and the relief claimed in it, but obtained a decree, which (as I have already said) required him to deposit Rs. 2,750 and entitled the defendants to withdraw that amount without any reference to the zarpeshgi. In this respect, the case very much resembles the Allahabad case, where the learned Judges reluctantly came to the conclusion that after a decree of this kind, it was not open to them to enforce repayment of the money so held by the vendee to the pre-emptor. It is true that in that case the pre-emptor had after the preemption decree had to pay off the mortgagee and thereupon brought a suit to recover the amount from the vendee who had withdrawn the entire deposit made by the pre-emptor in accordance with the pre-emption decree; but this obviously does not affect the principle to be applied to oases where a plaintiff has deposited the entire sale-price in favour of the vendee in accordance with his pre-emption decree, without troubling to secure his own rights in respect of an outstanding mortgage which the vendee was to pay off out of the sale-price. The learned Judges said that they would have been very glad to have seen their way to uphold the decree for the money passed by the lower Appellate Court against the vendee, but they could not discover any basis upon which the plaintiff could succeed. After referring to the circumstances that the vendee had never entered into any contract with the pre-emptor to pay the money to the mortgagee and that the obligation of the vendee was one based on his contract with, the original vendor, they pointed out that the whole trouble arose from the plaintiff not taking care to see that the pre-emption decree was drawn up in proper form directing that they should only pay the amount which the vendee had paid to his vendor.

This being so, Mr. Mukharji has raised two other points. In the first place, he has referred to the application which the plaintiff made after the pre-emption decree to be allowed to deposit that part of the sale-price only which was to go to the owner and not also the part that was intended for the zarpeshgidars. He has also referred to the application of the zarpeshgidars asking to be allowed to withdraw the zarpeshgi money and stating that they had already given up possession. Both the applications were dismissed by the Court, and Mr. Mukharji has contended that the orders of the Court on those occasions were wrong and that the plaintiff is entitled to protection from injury from the failure of the Court to pass the right orders. There are two answers to this. It is by no means certain that the orders of the Court on that occasion were wrong. On the contrary, they certainly seem to have been in strict accordance with the pre-emption decree that had been obtained by the plaintiff himself. Secondly, assuming that the orders were wrong, the plaintiff (if aggrieved by them) could and should have appealed against them, and got them corrected. They have now become final, and it is no longer open to the plaintiff to ask the Court to correct them as in an appeal against them. Nor can he ask the Court to ignore them, unless the bar of res judicata is shown on some ground or other to be inapplicable.

Mr. Mukharji''s second point was that it was not open to the plaintiff in his pre-emption suit to raise any question as regards the zarpeshgi; and in support of this contention he relied on Sheikh Golam Ayhya v. Joy Mungul Singh (1870) 13 WR 435. That however was a case in which it seems to have been argued in special appeal that the plaintiff was entitled to a pre-emption decree on depositing not the entire sale-price but that price minus the amount of a certain mortgage debt, This contention was rejected by Couch, C.J. in the following words:

That was an arrangement which the parties might well come to, but we think that it does not at all follow that the plaintiff who has a right of pre-emption is entitled to have the same thing done for him. And here it may well be that in reality the mortgage has been already discharged, and there is no ground for the plaintiff having this sum of money deducted from the price of the property that he may himself pay it off. Had this question been raised at an earlier period, a proper issue would have been framed and it might have been shown whether there was or not any necessity for such an arrangement as the plaintiff now contends for. If it had appeared that the mortgage was still existing, it would have been necessary for the defendant to come to some arrangement for its discharge....

These observations clearly show how before he obtained the pre-emption decree as it stands and after he became aware of the fact that the zarpesbgidars had not yet been paid off, the plaintiff could and should have obtained suitable relief in respect of the zarpeshgi by amending his plaint and raising an additional issue about the money required for the redemption. It has also been contended that the effect of a pre-emption decree is to substitute the pre-emptor for the private purchaser as a vendee from the original owner and this, in respect of the rights and obligations arising from the sale under which the private purchaser had derived his title. This contention is perfectly correct so far as the right to redeem the mortgagees is concerned. But if it is meant to imply that as the private purchasers were to have the property clear of all encumbrances on payment of Rs. 1,150 to the original owner and of Rs. 1,600 to the zarpeshgidars, the pre-emptor is entitled to do the same, it is plain that the plaintiff is placed in a different position by his own pre-emption decree which entitled the private purchasers to the entire sum of Rs. 2,750 without any reference to the zarpeshgi.

Mr. Mukharji has also referred to Raghubir Singh v. Jodha Singh AIR 1923 All 507 in support of the contention that where the vendee defendant in the preemption suit has withdrawn the entire consideration money deposited by the plaintiff in that suit in his favour, the former becomes a trustee of the latter. No such broad proposition however was laid down in that case, which was decided on its, own peculiar facts. In that case, as in the present, the property was actually in the possession of a mortgagee, and it would therefore have been useless for the holder of the pre-emption decree to take out delivery of possession against the vendee. More than 13 years after the pre-emption decree, the vendee redeemed the mortgagee. The contention on his behalf was that as the pre-emptor (or his successor-in- title) had failed to put his pre-emption decree into execution by taking out delivery of possession, his right in the property absolutely ceased at the conclusion of 12 years from the date of the pre-emption decree. This contention was negatived by the learned Judges acting among other things on the analogy of Section 82, Trusts Act. The question was one of the competing titles of the pre-emptor and the vendee who had actually redeemed the mortgagee years after the pre-emption decree. The learned Judges held that as at the time of the pre-emption decree the property was not in the possession of the vendee defendant, the failure of the decree-holder pre-emptor to take out a formal delivery of possession against him did not) affect the pre-emptor''s title and that when he complied with the terms of the decree, that is to say in the matter of depositing the sale-price, his title was complete. They were of opinion that that title could not in equity be resisted by such title as the private purchaser had been able to acquire with the use of the pre-emptor''s money. The decision of the question of the two competing titles in that case did not directly clash with the terms of the pre-emption decree and, as I have already said, there was also the analogy of Section 82, Trusts Act, which however has no application to the facts of the present case.

Mr. Mukharji has also urged that the plaintiff is entitled to relief on the principle of Section 69, Contract Act, and he has cited Somashastri Vishwanathshastri Kashikar Vs. Swamirao Kashinath Nadgir, in support. The terms of the section obviously do not help the appellant, and the case cited by Mr. Mukharji was not complicated, as is the present case, by a pre-emption decree which has to be taken to govern the monetary relations between the plaintiff and the vendees.

The first relief prayed for in the plaint was that the plaintiff may be declared to be entitled to khas possession without the zarpeshgi encumbrance, because defendants 6 and 7 had given up their claim to the peshgi money and their possession of the lands. This relief cannot be given to the plaintiff because it is clear that they never gave up their claim to the peshgi money. It is true that when they applied to the Court for being allowed to withdraw the zarpeshgi money, they stated that they had given up possession. But they obviously did so, because they expected to get the money from the deposit made by the plaintiff in accordance with the pre-emption decree. It is nobody''s case that they actually got the money from that deposit, nor is it anybody''s case that they have since received payment from the vendees or the preemptor or anybody else. Under the terms of the zarpeshgi deed, they are entitled to retain possession until they are paid off, and as they were admittedly in possession at the date of the present suit, the appellant cannot recover possession from them without paying them off, for his title is subject to the zarpeshgi encumbrance. The first prayer of the appellant there, fore, fails. The second prayer, which was made as an alternative to the first prayer, was that a decree may be passed in favour of the plaintiff for Rs. 1,600 against defendants 1 to 5, and this prayer must be disallowed for the reasons indicated in Ram Richcha Prasad Tewari and Others Vs. Raghunath Prasad Tewari and Others, . The third prayer was that defendants 1 to 5 be ordered to redeem defendants 6 and 7 and that the latter be ordered to give up possession. This prayer must also fail because in view of the terms of his pre-emption decree the plaintiff has no right to call upon the defendants to pay any money to the zarpeshgidars. All the prayers made by them therefore fail, and the appeal to this Court must be dismissed with costs.

This however is not an end of the matter. The judgment of the lower Appellate Court as originally delivered entitled the plaintiff to recover possession on depositing Rs. 1,600 in Court within two months for redeeming defendants 6 and 7; and it gave him this relief with "costs proportionate to his success with future interest at 6 per cent. per annum and pleader''s fee at 5 per cent." This last portion has been naturally objected to by defendants 6 and 7 before us. They have never disputed the plaintiff''s right to redeem them, and their action in going to the pre-emption Court and seeking to be allowed to withdraw Rs. 1,600 from plaintiff''s deposit is no reason for saddling them with any costs merely because on that occasion they gave up possession in anticipation of and as a preliminary to the Court allowing them to withdraw the sum that was admittedly due to them. That sum is still due to them and, as I have already stated, the plaint did not seek their redemption by the plaintiff at all.

While this part of the judgment was being delivered this morning, it was brought to our notice by the learned advocate who appears for defendants 1 to 3 that the lower Appellate Court had amended its judgment and decree and omitted the portion about redemption with costs. It appears that the amendments were made after hearing the parties including the plaintiff, and it is surprising that the plaintiff who appealed to this Court against the original unamended decree and judgment refrained from bringing the amendments to notice at once. In the result I would dismiss this appeal and the suit with costs in all the Courts to be paid by the plaintiff to defendants 6 and 7. As regards defendants 1 to 3, who also appeared in this Court, I would make no order of costs.

Varma, J.

I agree.