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Janki Dagdu Vs. Mahadu Devji - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case NumberSecond Appeal No. 459 of 1905
Judge
Reported in(1907)9BOMLR710
AppellantJanki Dagdu
RespondentMahadu Devji
Excerpt:
.....repay rs. 400 the amount of the purchase money received from the widow as a condition precedent to recovering possession from the defendant (purchaser from the widow) the sale being invalid for want of necessity beyond the life time of the widow.;there was no equity in favour of the defendant and as against plaintiff entitling that defendant to the amount of the purchase money.;an action will not lie at the suit of a for the breach by b of a duty which b owed to c, because in order to support an action there must be either a contract with the person sued or some relation establishing a duty on his part towards the plaintiff.;barker v. the midland ry. co. (1856) 18 b.c. 59 followed.;where a party receives from another goods or their value in money as belonging to a third party, with..........him the amount, the question still remains whether in the present suit brought by the appellant to recover possession of property as hers, held wrongfully by the respondent, it is open to the latter to plead that she cannot recover possession until she pays to him the sum of rs. 400, which has no connection with the appellant's right to recover the property in dispute. there are cases no doubt in which a plaintiff seeking to recover possession of property is not allowed to recover it unless he pays a sum to the defendant as directed by the court. but those are cases in which, as observed by the privy council in ram tuhul singh v. biseswar lall sahoo , a plaintiff comes to be relieved from his own. act, or the act of one whom he represents, on equitable grounds and the court holds that.....
Judgment:

Chandavarkar, J.

1. It is found by the lower appellate Court that the sale to the respondent by Gangabai was not justified by any necessity or purpose recognised by the Hindu Law and that, therefore, the title acquired by the respondent from Gangabai under the sale could not enure after her death. The appellant, as the next reversionary heir, became entitled to the property. The respondent, in answer to the appellant's claim for possession, alleged that immediately after the sale of the property by Gangabai, the appellant had contracted to sell the property to him. But the lower appellate Court has found upon the evidence that there was no such contract. Upon these findings the appellant has been rightly held entitled to recover the property.

2. But the lower appellate Court has also directed by its decree that the appellant should pay to the respondent Rs. 400, which formed the purchase-money for the sale by Gangabai. That liability has been cast by the lower appellate Court on the appellant upon these facts, viz., that Gangabai had made over Rs. 400 to the appellant with a direction that that amount ought to be paid by her to the respondent; but that the appellant failed to pay it to the latter. But the mere fact that Gangabai gave the money to the appellant with the direction is not sufficient to entitle the respondent to claim the money from her. That was a transaction between Gangabai and the appellant. The latter was constituted by Gangabai her agent for payment to the respondent. If the appellant failed to make the payment in accordance with the direction, she became in law liable to Gangabai for breach of duty, not to the respondent. As was said by Willes J. in Barker v. The Midland Ry. Co (1856) 18 C.B. 59, 'an action will not lie at the suit of A for the breach by B of a duty which B owed to C,' because, 'in order to support an action there must be either a contract with the person sued or some relation establishing a duty on his part towards the plaintiff ' (Broom's Legal Maxims, page 161, 11th Edition). Here there was neither. Had Gangabai, after handing over the sum to the appellant, communicated that fact to the respondent and desired him to receive the amount from the appellant, such notice to the respondent might have constituted the appellant a trustee for, or debtor of the respondent in respact of, the amount. Johns v. James (1878) L.R. 8 C.D. 744. But as was said in that case in the absence of such notice, 'the right to the direction of the money is the right of the person who has put the money in the hands of his agent or steward or whoever he may be.' No notice is pleaded in the present case.

3. And, even assuming that at the suit of the respondent the appellant could be held liable to pay him the amount, the question still remains whether in the present suit brought by the appellant to recover possession of property as hers, held wrongfully by the respondent, it is open to the latter to plead that she cannot recover possession until she pays to him the sum of Rs. 400, which has no connection with the appellant's right to recover the property in dispute. There are cases no doubt in which a plaintiff seeking to recover possession of property is not allowed to recover it unless he pays a sum to the defendant as directed by the Court. But those are cases in which, as observed by the Privy Council in Ram Tuhul Singh v. Biseswar Lall Sahoo , a plaintiff comes to be relieved from his own. act, or the act of one whom he represents, on equitable grounds and the Court holds that such a plaintiff seeking equity must do equity and 'submit to those equitable conditions which the Court may see fit to impose on its grant of relief.' Accordingly, in the case cited, the Privy Council declined to apply the equitable principle to the appellant before them, because they said the money sought to be recovered 'from him has not been paid under any contract of his or in any transaction to which he was a consenting party.' It must be a contract or transaction relating to the property of which the plaintiff seeks possession. Here even if the appellant could be sued for the amount by the respondent for Rs. 400, the liability would be one having no relation to the appellant's title to recover the land in suit. In the present case Gangabai sold the land as her absolute property without any right to do so and without the plaintiff's consent, although she had only a widow's estate and on her death the plaintiff was entitled to the property. The plaintiff recovers the property in her own right, unfettered by Gangabai's sale. The defendant's right, if any, to recover Rs. 400 from the plaintiff' is independent of and has no connection with, the plaintiff's right to recover the property. There are no doubt also cases (of which Mildred v. Maspons (1883) 8 App. Cas. 874 is au illustration) in which it has been held that where a party receives from another goods or their value in moneys as belonging to a third party, with notice of that party's ownership, that third party can sue the receiver therefor, but that is because the right to recover the goods or their money-value depends 'not on agency or privity or contract but upon property.' That is, the goods belonging to the third party, the latter, as owner, has the right to them or their money-value as against any person holding them wrongfully with notice of the real owner's right. But that principle is inapplicable here. The money, which Gangabai gave to the plaintiff', was not money which belonged to the defendant but was money belonging to Gangabai which she intended to be paid to the defendant in satisfaction of her liability to the defendant, the sale to him by her having gone off in consequence of the plaintiff's title.

4. We think that there is no equity arising in favour of the defendant and as against the plaintiff, entitling that defendant to the sum of Rs. 400 awarded by the lower appellate Court's decree as a condition precedent to the recovery of possession.

5. We reverse the decree of the lower appellate Court and restore that of the Subordinate Judge with costs of both the appeals on the respondents. Cross-objections dismissed.


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