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Baswantapa Shidapa Vs. Ranu and Malkhana - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtMumbai
Decided On
Judge
Reported in(1885)ILR9Bom86
AppellantBaswantapa Shidapa
RespondentRanu and Malkhana
Excerpt:
.....circumstances of case would depend upon exercise of discretion by supreme court under article 142 of the constitution. said powers under article 142 of constitution is not available to the high court. hence no protection can be granted by high court even in cases relating to admissions. - an attempt was made to get the sale set aside by another shidapa, who resided with baslingawa, but this failed. if it could be so attributed, then the alleged quiescence and its consequences would fail; the illustration to section 115 of the indian evidence act sets forth that one is bound who intentionally and falsely leads a purchaser to suppose he is taking a perfect title......to the death of her husband, and there was not any intermediate obstruction to the attachment or sale on tayawa's part by which baswantapa could be bound. had shidapa acted for her in trying to get the sale set aside, the present suit would have been in time under the law of limitation, but she merely remained quiescent. it is urged, however, that this quiescence was in itself enough to bind tayawa and binding her bound her adopted son also, so that now the latter is estopped from disputing the regularity of the proceedings leading to the sale and the validity of the title acquired by the defendant ranu as purchaser at the sale in execution. the case of natha hari v. jamni 8 bom. h.c. r a.c.j. 37 is referred to in support of this contention; and if tayawa had wilfully put forward.....
Judgment:

West, J.

1. In this case one Shidapa owed a sum, it is said, to Malkhana. Shidapa died, leaving a widow Tayawa and no son. Tayawa, therefore, was Shidapa's heir, he not having, so far as appears, any brother. The creditor Malkhana, desiring to enforce payment of the debt due by the deceased, ought obviously to have sued Tayawa, but instead of that he brought a suit against Shidapa's mother Baslingawa, and in execution of ex-parte decree against her as representative of Shidapa sold, or affected to sell, the house in which she dwelt, which was, in fact part of the estate then vested in Tayawa. An attempt was made to get the sale set aside by another Shidapa, who resided with Baslingawa, but this failed. It does not appear that Shidapa acted as agent for Tayawa, and we agree with the District Judge that she could not be indentified with Shidapa in his opposition to the attachment so as to be entitled to have limitation computed for her suit from the time of the decision against Mm, An unauthorized act cannot afterwards be ratified so as to prejudice a third person who could not be legally affected in the first in- stance owing to the want of authority (Indian Contract Act, IX of 1872, Section 200). '

2. It has, however, been many times ruled that the person who after a summary decision against him in a complaint arising on his obstruction is limited to one year, as the time within which he must bring a suit to establish his right, yet has twelve years if 'Without any obstruction to the attachment or sale he first claims in a suit as having been wrongfully dispossessed of the property sold in execution. This is the position now taken by the plaintiff Baswantapa. He was adopted by Tayawa between the decree and the sale of the house in question. His right dates back to the death of her husband, and there was not any intermediate obstruction to the attachment or sale on Tayawa's part by which Baswantapa could be bound. Had Shidapa acted for her in trying to get the sale set aside, the present suit would have been in time under the Law of Limitation, but she merely remained quiescent. It is urged, however, that this quiescence was in itself enough to bind Tayawa and binding her bound her adopted son also, so that now the latter is estopped from disputing the regularity of the proceedings leading to the sale and the validity of the title acquired by the defendant Ranu as purchaser at the sale in execution. The case of Natha Hari v. Jamni 8 Bom. H.C. R A.C.J. 37 is referred to in support of this contention; and if Tayawa had wilfully put forward Baslingdwa as the representative of Shidapa so as to deceive and mislead Malkhana, then, no doubt, she might be held bound by the decree obtained by the latter against Baslingawa. But the District Judge finds that Malkhana was not ignorant of Tayawa's position; there is nothing to indicate that she took any step to deceive him; and her mere quiescence, while he wilfully sued the wrong person, could not deprive her of her legal rights-see Balvantrav Ganesh alias Tatya Saheb v. Anpurnabai Second Appeal No. 621 of 1883, decided 17th June 1834. Much less could it deprive her adopted son Baswantapa of his rights West & Buhler 1176 (3rd ed.), He could not be bound by a suit and sale, to which he was not a party, either in person or by representative-Fatu v. Dhondi Printed Judgments for 1884, p. 182. The case of Prosunno Chunder Bhhuttacharji v. Kristo Chytunno Pal I.L.R. 4 Cal 342 rest on a supposed deceitful withholding of a will and a suit against the wrong person induced by the deceit. The case of Jetha Naik v. Venktapa I.L.R. 5 Bom. 19 shows that a suit, however just in itself, brought against the wrong party, 'cannot be sustained against the right one, though it shows also that a mortgage erroneously sued on against A is not so extinguished by the decree and consequent execution that it will not avail against B, the person really liable, but not represented in the previous suit. In the present case there was not a mortgage giving to Malkhana an interest in Shidapa's property; there was but a debt due to him; and when the suit against Baslingawa is pronounced ineffectual as against Baswantapa, there is nothing left to fall back upon except the personal obligation so far as this may have descended to Baswantapa and may still be an available cause of action to the creditor.

3. Tayawa, however, it is urged, was bound to come forward when, the property was attached and sold: on Malkhana's decree. But the present Code of Civil Procedure, in giving to persons an opportunity to come forward and set up claims to property proposed to be sold in execution, does not say, nor do the rules made under Section 287 of the Code say, that by not coming forward a true owner of the property submits to an extinction of his legal rights. It still behaves an intending purchaser as when the case of Natha Sari v. Jamni 8 Bom. H.C. R A.C.J. p. 37 was decided, to see that the person sued as a representative was really the representative of the debtor deceased, since by sale of the derived interest which is no interest) of A, the real interest of B, the true representative, cannot in general be affected. In the case we have just referred to, Story (Equity Jurisprudence) is quoted (page 43) Sec Sugd. V. & P., Ch. XXIII. Section 2 Wh. & T.L.C. 25, 27 (3rd ed.) to the effect that one who knowing his own title stands by and encourages a purchase of property as another's, will not be allowed to dispute the validity of the sale; but this implies a wilful mis-leading of the purchaser by some breach of duty on the owner's part. The principle broadly stated by Story must, in practice, be taken with the qualifications stated in Russel v. Watts L.R. 25 Ch. D.571 and in Wilmot v. Barber L.R. 15 Ch. D. 96. From these it appears that 'a man is not to be deprived of his legal rights, unless he has acted in such a way as would make it fraudulent for him to set up these rights.' There must be ignorance on the one side deluded by a misrepresentation in act or word on the other-Rajcoomar V. McQueen L.R. 15 Ch. D. 96. Now in the present case there does not appear to have been anything more than quiescence on the part of Tayawa, unless Shidapa's application can be attributed to her. If it could be so attributed, then the alleged quiescence and its consequences would fail; but, excluding this, there was no deceit practised; no one was asked to buy by Tayawa; she did not represent that she had no interest in the property. She merely left Malkhana to sell Basjingawa's so called representative interest for what it might be worth, and did not volunteer any advice or assistance to intending purchasers, who could themselves have ascertained the truth by reasonable inquiry Mangles v. Dixon 3 H.L. 739; Harrison v. Guset, 8 H.L. 481. Supposing Tayawa was aware of what was going on, she was not, as we have seen, bound to take any step Second Appeal 621 of 1882, decided on 17th June 1884; she might lawfully leave the persons concerned to their own counsels and devices. The illustration to Section 115 of the Indian Evidence Act sets forth that one is bound who intentionally and falsely leads a purchaser to suppose he is taking a perfect title. There is an obligation to truth in speech and act, but no obligation to speak or act where no confidence is given or accepted, merely for the purpose of guarding or furthering the interests of strangers proceeding wholly in invitum, and with an omission to inquire, which is equivalent to knowledge See per Lord Selborne in Agra Bank v. Barry L.R. 7 Eng. & Ir Ap.157.

4. The sale must therefore, be pronounced void as against Baswantapa, and the decrees of the Courts below being reversed, the house is awarded to him as sought in his plaint, with costs throughout.


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