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ishwar Lingo Desai Vs. Dattu Gopal Desai - Court Judgment

LegalCrystal Citation
Decided On
Case NumberAppeal No. 14 of 1912
Reported in(1913)15BOMLR366
Appellantishwar Lingo Desai
RespondentDattu Gopal Desai
.....(iv of 1882), section 52 - list pendons-partition between defendants inter se during pendency of suit-partition void against plaintiff as having been pendente life-plaintiff's negligence in omitting to bring the partition to the notice of the court-plaintiff not to be damnified for omission-practice-pleading-array of parties-change in composition of parties by act of parties.;the plaintiff obtained a redemption decree against his four mortgagees (defendants); and paid the redemption money into court, but after the time fixed in the decree for payment. the subordinate judge treated this payment -as valid and ordered the defendants to deliver up possession of the mortgaged property to the plaintiff. on the 7th january 1902, the district judge reversed the order. the defendants next difference in law, whether he had or had not known of this pendente lite trafficking in the suit property. the sole question is whether in fact it has affected the plaintiff's right as a party to that redemption suit. we think there can be no doubt, and indeed no room for any argument to the contrary, but that it has.4. the ground of the district court's decision is extraordinary. the learned district judge holds that the plaintiff's failure to communicate the fact of the partition to the high court in second appeal is fatal to his present claim. the question of the array, after the death of gopal, was, as has been said, raised before their lordships, argued, and decided in favour of the plaintiff. even had the plaintiff known of the partition it is hard to say why any obligation.....

Beaman, J.

1. Plaintiff owned a one-third share of an equity of redemption. He brought a suit to redeem one-third of the mortgaged property from the four surviving joint mortgagees. The litigation has, up to the hearing of this appeal, passed through the hands of one or more Subordinate Judges, three District Judges and three Judges of the High Court. But at no time did the form of the suit excite any comment or give rise to any objection. I must therefore take it that this is a normal feature of the law of mortgage in the mofussil.

2. Omitting mention of the earlier stages through which the redemption suit passed, it is sufficient to say that on the 7th January 1902 the District Judge dismissed the suit. Plaintiff appealed to the High Court. On the 10th January 1902 the four joint mortgagees effected a partition inter se, and the property, the subject-matter of the suit, fell to the share of the defendant 1, Gopal. On the 15th January 1902 Gopal died, leaving him surviving a widow, the defendant in the present suit. On appeal to the High Court against the decree of the 7th January 1902, Gopal's death was brought to their Lordships' notice. It is clear from the judgment that the question, whether any fresh representation of Gopal was needed, was argued and decided. Their Lordships held that the right to sue survived against the three other defendants, joint tenants of the mortgaged property. No mention whatever was made of the partition of the 10th January 1902. Their Lordships in second appeal reversed the decree of the District Judge and remanded the suit. Finally in 1903, the plaintiff's claim was decreed. The amount of redemption money was paid and it appears that the plaintiff was put in possession. The widow of Gopal here intervened, claiming that the property had fallen to her husband's share, that she was his sole heir, and had never been a party to the suit for redemption. This plea found favour with the executing Court. The plaintiff was therefore after six or seven years' litigation relegated to a suit, to have , that order set aside and to obtain the fruits of his decree. This suit was brought in 1907. The Subordinate Judge decided in favour of the plaintiff. On appeal to the District Court, the learned District Judge reversed the decree of the Subordinate Judge and dismissed the plaintiff's suit. The plaintiff preferred a second appeal to the High Court, which was heard by Batchelor J. sitting alone. That learned Judge, though for slightly different reason, confirmed the decree of the lower appellate Court. Against his decision, an appeal has been admitted under the Letters Patent.

3. The only point to be considered is whether the partition of 10th January 1902 was a transfer of or other dealing with the property in suit, within the meaning of Section 52 of the Transfer of Property Act. It is not disputed that if it was, it occurred pendente lite, and would therefore be void against the present plaintiff-appellant. It is not disputed that the partition was a transfer, or at any rate a dealing with the property in suit. But it was urged on behalf of the defendant-respondent, and both appeal Courts accepted the contention, that it was not a transfer or dealing with the ' property which in any way affected the right of the plaintiff as a party to that suit. It might have been thought that the question answered itself on a first view of what has actually happened. The simple fact is that as a result of that partition, whether direct or indirect we will consider presently, the plaintiffs redemption suit has been defeated, and he has been deprived of the fruits of his decree. It is nowhere shown, and it is not even contended before us, that the plaintiff was aware of the partition. Speaking for myself, it would have made no difference in law, whether he had or had not known of this pendente lite trafficking in the suit property. The sole question is whether in fact it has affected the plaintiff's right as a party to that redemption suit. We think there can be no doubt, and indeed no room for any argument to the contrary, but that it has.

4. The ground of the District Court's decision is extraordinary. The learned District Judge holds that the plaintiff's failure to communicate the fact of the partition to the High Court in second appeal is fatal to his present claim. The question of the array, after the death of Gopal, was, as has been said, raised before their Lordships, argued, and decided in favour of the plaintiff. Even had the plaintiff known of the partition it is hard to say why any obligation lay on him to mention the fact. Presumably it was on the part of the defendants that objection was taken to the array, as it stood after the death of Gopal. The partition was a fact within their special knowledge. It certainly seems to us that if it was any one's duty to inform the High Court of the partition, it was the defendants' and not the plaintiff's duty. But it is a much harder saying that a party is to be defeated for no other reason than that in another proceeding he did not communicate to the Court of appeal, that which he did not know.

5. The conclusion of the learned Judge of second appeal appears to us to rest upon a, process of reasoning too refined to be admissible in the-practical administration of the law. To say that the cause of the plaintiff's defeat in this suit was not the partition at all, but the plaintiff's own negligence in not having noted, and taken precautions against the legal consequences of it, seems to us drawing a distinction without a difference. One reason out of many, and that in our Opinion a conclusive reason against the correctness of any such view,-is that the plaintiff did not know of the partition. A. covert dealing with property in suit pendente lite, by any party to the suit, cannot possibly in our opinion cost any duty or obligation upon the opposite party. And again speaking for myself, I say that in ray opinion that proposition is entirely unaffected by the affected | party's knowledge or ignorance of the dealing. For the purpose of mere argument, however, it is clear that where the party affected is in fact ignorant of the dealing, it is impossible to make him answerable for neglecting to meet all its legal consequences, assuming that it were a valid, and not a void, transfer or dealing. Another consideration which was evidently not present to the minds of either of the learned Judges in the two Courts of appeal, and indeed is only of secondary importance, is that for all the purposes of the suit terminating with the learned District Judge Mr. Crump's decree, the question of the array was rest judicata by the decision of the High Court in appeal. In consequence of that decision Gopal's name was struck off, and in my opinion quite rightly struck off, the record.

6. Reverting to the ground of decision in the Court of second appeal now before us, and adopting for a moment the learned Judge's statement that the plaintiff has not been in any way affected by the partition, but if affected at all, then only by his own negligence in having omitted to bring Gopal's . ' widow on the record, we would observe, that this reasoning ' appears to us to ignore altogether the plain facts that whatever right the widow of Gopal may have for the purpose of this suit is directly traceable to and rooted in the partition. If there had been no partition, it cannot be argued, and it never has been argued, that the widow of Gopal would have had any locus standi at all in the redemption suit. And the materiality of this is in no way altered or diminished by shifting the point of view a little, and saying that because of this right there arose by operation of law a duty to introduce an entirely new party into the litigation, failure to discharge which duty must now entail the dismissal of a claim in all other respects, admittedly just and certain of success. A moment's reflection ought, we think, to show that once more the difficulty is directly traceable to the partition and to nothing else. The suit was against four joint mortgagees.

7. Once rightly launched, the array was virtually stereotyped and could not be changed pendente lite by mere act of patties. The plaintiff had a perfect right to assume that his suit would end, as it had begun, upon that footing. It is true that although these four defendants have been called joint-tenants r of the property in suit, they are only joint tenants as members of a joint Hindu family, and subject to the legal incidents of that status. Thus had Gopal left a son, it might have been the plaintiff's duty to bring that son upon the record after Gopal's death. But as Gopal had no son, it is convenient to look at the position as though the four defendants were joint tenants. Thus on the death of one of them, his right passed by survivorship to the other three, and the plaintiff was under no obligation whatever, as far as we can see, to make any further change in or addition to the record. All that required to be done, after the decision of the High Court in appeal, was to strike off the name of the deceased Gopal, and this was done.

8. Thus regarded, it is at once clear that if indeed the plaintiff was under any obligation to bring Gopal's widow on the record, that could only have been because of the partition. And as ex hypothesi, that partition, being effected during the active prosecution of a contentious suit, was void against the plaintiff, it could not have cast any such obligation upon him. In using those words we do not lose sight of the learned Judge's view, that although a transfer or dealing with the property in suit pendente lite, it was not a dealing which in any way affected the plaintiff's right. We are rather indicating why in our opinion that view is incorrect. For anything which imposes a new obligation upon a party to a suit must plainly, pro Thank, affect his right. The learned Judge of second appeal appears to have taken a very restricted view of a party's right. We gather that in his opinion, so long as the property was left in the possession of any one of the defendants, who would in ordinary course be amenable to the decree, no dealing with it inter se could possibly affect the plaintiff's right. But we think that this can easily be shown to be fallacious. It is surely part of any litigant's right, so far as the subject-matter and conduct of the suit are concerned, to know precisely where he stands. He is entitled to know who his opponents are, and when that has been definitely and finally ascertained to insist that no dealing on their parts, with the property in suit, shall compel him to go further afield, and bring in new parties, who, but for such dealing, could have had no locus standi at all. How can it be said that a plaintiff's right is not affected by that which necessitates his abandoning his claim against all the remaining defendants on the record and bringing a virtually new claim against some one who, at the time the suit was launched, had no interest whatever in the property, and who, but for the pendente lite dealing with it never could, as against the plaintiff have had any right to be litigated between them A complete right needs a person of incidence as well as a person of inherence. No party during the conduct of a suit has any power, by dealing with the property, to change the person of incidence or inherence to the detriment of the other. Here the true result of the dealing, which in the opinion of the learned Judge of second appeal did not affect the plaintiff's right, was not, as he supposes, to necessitate adding Gopal's widow to the record, but abandoning the claim as brought altogether and bringing an entirely new suit against an entirely new person. How, we ask again, can it be said that such a result does not affect and most seriously affect the plaintiff? It is obvious that if the partition was a legal and valid transfer, upon the severance of the joint tenancy by three of four joint tenants, to the fourth, then, inasmuch as the whole property which the plaintiff thus sought to recover had so passed to the transferee, he had no cause of action at all against the other three former joint tenants. His suit against them would have had to be dismissed. True, provided he could have been sure of finding the property in the hands of the fourth original joint tenant and defendant, it might not have mattered much. But that, in our opinion, has nothing whatever to do with the principle we are discussing, or a correct interpretation of the law. For there is always in such cases a possibility, a possibility which here has happened, that the transferee may die during the pendency of the suit. Should that happen, the manner in which the pendente lite transfer has affected a party to the suit at once becomes plain. For now, instead of being able to proceed with his suit as originally constituted, he would have to find out the heirs and representatives of the transferee. The joint tenancy being severed, nothing passes on the death of the transferee to his former joint tenants, and they might as well not be on the record at all.

9. It is only out of respect for the considered decisions of two learned Judges of appeal that we set forth at some length considerations which might be thought as obvious as conclusive.

10. Perhaps the simplest and most effective test is to ask whether, if the partition had not been made pendente lite, the plaintiffs suit could possibly have ended as it has. The answer to this must be-No. If there-had been no partition, the widow would have had no locus standi, when she intervened in execution. This suit would never have needed to be brought. All his troubles during the last seven years in prosecuting his redemption suit have been brought on the plaintiff by this partition and by nothing else. Or to put it in another way either the partition has affected the plaintiff's rights as a party, or it has not. If it has, it is admittedly void as against him under Section 52. If it has not, it ought; to be ignored and no considerations drawn from it ought to have any place in the decision of the suit. Taking the latter course what is the result 1 This, that no Court should have treated the defendant in this suit as having any right whatever against the plaintiff, so far as his suit for redemption went. For it is only on the strength of the partition that she can pretend to any such right and, ex hypothesi, the partition does not affect the plaintiff for all the purposes of that suit. Thus the same result is easily and immediately reached either way. It would be easy to add further illustrative considerations. But we think that what we have said warrants us in believing that we have indicated the correct lines of reasoning to be followed in cases of the kind. Applied to the facts of this case, those lines of reasoning yield a very safe conclusion. We have no doubt at all but that the partition of January 10th 1902 falls within the mischief of Section 52, Transfer of Property Act, and cannot be allowed in any way to affect the plaintiff's right, either under his redemption decree or in execution. That being so, and the partition with all its legal consequences, out of the way, it necessarily follows that the defendant in this suit has no right, nor any ground of defence at all. We must therefore reverse the decree under appeal and restore the decree of the Court of first instance with costs throughout.

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