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Cowasji Temulji Vs. Kisandas Tricamdas - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case NumberSecond Appeal No. 518 of 1908
Judge
Reported in(1911)13BOMLR649
AppellantCowasji Temulji
RespondentKisandas Tricamdas
Excerpt:
.....does not enure to the party's assignee-suit for partition-award of joint possession.;by consent decrees obtained in two redemption suits in 1866, it was provided that both parties (i. e. the mortgagors and the mortgagee w.s.) should jointly carry on the management of the land each being entitled to one-half of the produce and the rent, that the land itself should not be partitioned, that w. s. was to be competent to grant a mirasi lease provided the nazrana (present) accepted was not less than rs. 5,00 and that the nazrana should be divided between the mortgagors and w. s. in the proportion of one-fourth and three-fourths respectively. in 189o, the mortgagors conveyed their rights to w. s. for a valuable consideration (ex. 64). then, in april 1891, w. s. deposited ex. 64 by..........to those rights which by exhibit 64 were conveyed to w. spiers: those rights are recited in the consent decrees, exhibits 57 and 58, and have been described by us above. this was the view of the lower appellate court, and we cannot doubt that it was so far right. but then that court refused the plaintiffs' prayer for partition, being of opinion that that claim could only be 'based upon the allegation that the judgment of the high court gave the plaintiffs higher rights than were reserved to shekh sadudin and the two others under the decrees exhibits 57 and 58.' it is here that we are unable to follow the learned subordinate judge. apart from that clause in the consent decrees which affects to prohibit partition, we think it clear that as tenants in common, the plaintiffs would be.....
Judgment:

Batchelor, J.

1. The plaintiffs, who are the appellants here, brought this suit as executors of the will of Hirjibhai Dhanjisha, and the prayer in the plaint was to recover by partition the plaintiffs' one fourth share in the land described. The defendants denied that the plaintiffs had acquired any share or partible interest in the land. The first question which arises is, therefore, what interest the plaintiffs have in the land, and whether that interest entitles them to partition. The plaintiffs stand in the shoes of the original owners Shekh Sadudin and two other persons, who had mortgaged the land to one W. Spiers.

2. The nature of the plaintiffs' interest has to be ascertained from certain prior decrees which have been passed on the subject of the property. These decrees are Exhibits 57 and 58, and were recorded by consent in 1866 in order to terminate a dispute which had arisen in 1864 between the original owners and the mortgagee, W. Spiers. In substance these decrees provide that both parties should jointly carry on the vahivat of the land each being entitled to one-half of the produce; that the rent received should be divided equally between them ; that the land itself should not be partitioned; that W. Spiers was to be competent to grant a mirasi lease provided the nazarana accepted was not less than Rs. 500; and the nazarana should be divided between Shekh Sadudin's party and W. Spiers in the proportion of one-fourth and three-fourths respectively.

3. Such, then, were the rights which Shekh Sadudin and his co-owners were awarded. These rights were, on 25th October 1890, by means of Exhibit 64 in suit, conveyed by Shekh Sadudin and the others to W. Spiers for a consideration of Rs. 4,000: the conveyance particularly recites the right to take half the produce of the land, and the right to one-quarter of the nazrana.

4. Next, on nth April 1891, this deed, Exhibit 64, was deposited by W. Spiers by way of equitable mortgage with two persons Manekji and Mancherji, who thus became equitable mortgagees of the interests conveyed to W. Spiers by Exhibit 64.

5. On 18th October 1891, W. Spiers, being then indebted in various quarters, settled the property on his relatives James and Mary Spiers. The property was then subject to Manekji and Mancherji's equitable mortgage.

6. In 1892 Manekji and Mancherji brought suit No. 143 against W. Spiers to recover their mortgage-money by sale, and they obtained a decree against the property equitably mortgaged and against the defendant W. Spiers personally. In pursuance of that decree the property equitably mortgaged was put to sale, and was purchased by the deceased Hirjibhai for Rs. 5,425, which covered the claim of the equitable mortgagees.

7. James and Mary Spiers obstructed Hirjibhai in his attempts to obtain possession after his purchase, and, as they were unsuccessful in the proceedings taken on their obstruction, they brought against Hirjibhai Suit No. 95 of 1895 in which they prayed that they might be given possession of the entire property or that they should be allowed to redeem, or that it should be declared that Hirjibhai was entitled only to the interests conveyed to W. Spiers by Exhibit 64. In that suit the final decree was made by this Court which gave to James and Mary a declaration that as against Hirjibhai, they were entitled to the properties and to the possession of them subject to Hirjibhai's right to the interest conveyed to W. Spiers by Exhibit 64 and subsequently purchased by Hirjibhai-and the Court added that 'the rights of the parties as thus declared must be worked out by amicable arrangement between them or by means of a separate suit.'the plaintiffs now bring this suit in order, as they claim, to work out the rights accrued to them.

8. The defendant is the purchaser of the interests of James and Mary Spiers under a deed dated 16th December 1896.

9. From what we have already said it follows that the plaintiffs, as executors of Hirjibhai, are entitled only to those rights which by Exhibit 64 were conveyed to W. Spiers: those rights are recited in the consent decrees, Exhibits 57 and 58, and have been described by us above. This was the view of the lower appellate Court, and we cannot doubt that it was so far right. But then that Court refused the plaintiffs' prayer for partition, being of opinion that that claim could only be 'based upon the allegation that the judgment of the High Court gave the plaintiffs higher rights than were reserved to Shekh Sadudin and the two others under the decrees Exhibits 57 and 58.' It is here that we are unable to follow the learned Subordinate Judge. Apart from that clause in the consent decrees which affects to prohibit partition, we think it clear that as tenants in common, the plaintiffs would be entitled to partition.

10. But the question is whether in this suit the plaintiffs are entitled to give the go-by to a particular clause in an existing decree on the ground that that clause, if resting on no higher authority than the agreement between the parties, would be bad in law. We think that this question must be answered in the negative. It may be-though we express no opinion as to this-that in a suit properly framed for that purpose, the plaintiffs might have been able to get the decree set aside. But no such suit has-been brought, and the decree is a subsisting decree; nor does it, we think, make any difference that it was taken by consent of the parties who were all sui juris. The decree stands, and, while it stands, it operates as an estoppel between the then parties and their present representatives. Authority for this view may be found in Huddersfield Banking Company, Limited v. Henry Lister and Son, Limited, [1895] 2 Ch. 273. That was an action brought by the Banking Company for the specific purpose of setting aside a consent order as having been obtained under a mistake as to material facts, and the Court of appeal, affirming Vaughan Williams J. set aside the order. The decision might assist the plaintiffs if they were suing to set 11. aside the consent decree, but, as we have said, that is not their suit, and the consent decree is still outstanding against them. That being so, their case upon this point is opposed to the observations of Lindley L.J. where he says, 'A consent order, I agree, is an order; and so long as it stands, it must be treated as such, and so long as it stands, I think it is as good an estoppel as any other order. I have not the slightest doubt on that.' In our opinion, therefore, it is not competent to the Court in this suit to override one particular clause in a subsisting decree. It follows that the plaintiffs are not entitled to partition.

11. Then it was urged that the decrees did not empower Spiers to grant a Mirasi lease without the plaintiffs' consent, but upon a fair reading of the material passages in the decrees we agree with the lower Court that that is unmistakably their effect and meaning. We do not, however, think that this condition enures for the benefit of the present defendant, who is merely an assignee from Spiers. The agreement embodied in the decrees points, we think, to the view that the individual Spiers was a person in whom the parties had confidence and that for this reason he was entrusted with the special power in question. Such a contract, importing the consideration of personal skill or confidence, would not be assignable ; it would not be open to the contractor to substitute the skill or credit of an assignee. (Leake on Contract, 4th edition, p. 826, and the cases there cited).

12. On the whole, therefore, we think that the plaintiffs are so far right that the defendant I was not entitled, without their consent, to grant the Mirasi lease to the defendant 2, and it must be declared that the lease does not bind the plaintiffs' share in the land nor does it affect the plaintiffs' right to joint possession.

13. The plaintiffs' claim to interest must be disallowed.

14. For these reasons we must reverse the decree under appeal and make a decree awarding joint possession to the plaintiffs. Appellants to have their costs of the appeal; the other costs to be borne by each party.


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