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Bhogilal Tarachand Javeri Vs. Jethalal Motilal Kumbhar - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case NumberSecond Appeal No. 437 of 1926
Judge
Reported in(1928)30BOMLR1588; 114Ind.Cas.262
AppellantBhogilal Tarachand Javeri
RespondentJethalal Motilal Kumbhar
Excerpt:
.....of the moiety and received its profits. on january 11, 1921, the plaintiffs sued and asked for a decree in favour of plaintiff no, 1 for injunction and insane profits. on january 21, 1921, the plaintiffs obtained a temporary injunction restraining the defendant from interfering with their possession of the moiety. on november 11, 1925, the plaintiffs applied that they be allowed to amend the plaint, and that plaintiff no. 2 also be allowed relief in the case:-;(1) that plaintiff no. 1 was entitled to recover the mesne profits of the moiety only from september 3, 1920, to january 21, 1921, and not to those accruing due before the date of the transfer in his favour;;(2) that no decree could be passed, under order i, rule 4, of the civil procedure code, in favour of plaintiff no. 2,..........share after september 3,1920, and he is not entitled so the rents accruing due before the date of transfer. in the plaint a decree was sought for in favour of plaintiff no. 1 alone, und, therefore, the lower courts were right in disallowing the claim with regard to the rent before the date of the transfer in favour of plaintiff no. 1. we are, however, of opinion that under the circumstances no decree can be passed under order i, rule 4, in favour of plaintiff no. 2 without an amendment, for a decree was not asked for in favour of plaintiff no. 2. if both the plaintiffs had asked for the amount of the rent in respect of pitambar's share from the date of the purchase till the date of the temporary injunction, a decree could have been passed in favour of plaintiff no, 2 in respect.....
Judgment:

Patkar, J.

1. This suit was brought by the plaintiffs for an injunction to restrain the defendant from interfering with the plaintiffs' possession and from collecting rent from the tenants in occupation of the property, and for recovering the rent due in respect of the half share of the property. It is not necessary to go into the detailed facts of the case. It is sufficient for the purpose of this appeal to state the necessary facts.

2. Plaintiff No. 2 was entitled as a purchaser to a moiety of the property belonging to one Pitambar and was entitled as a mortgagee with respect to the other moiety belonging to Pitambar's nephew, the defendant Jetha. The defendant sought to disturb the possession of the plaintiff as a purchaser of the moiety and as a mortgagee of the remaining moiety. Plaintiff No, 2 acquired the rights as purchaser with respect to Pitambar's moiety on July 30,1918, and as a mortgagee with regard to the other moiety on January 24, 1916. Plaintiff No. 2 established his right to possession on the strength of his purchase with regard to a moiety and on the strength of the mortgage with regard to the other moiety On September 3, 1920, plaintiff No. 2 sold to plaintiff No. 1 both his rights as a purchaser and as a mortgagee. The defendant disturbed the possession of the plaintiffs and took the profits to which plaintiff No. 2 was entitled by virtue of his purchase with regard to Pitambar's moiety. The suit was brought by both the plaintiffs and a decree was asked for in favour of plaintiff No. 1. The learned Subordinate Judge held that the defendant was accountable for Pitambar's share of the rent received by him, to plaintiff No. 1, but only from September 3 1920, that is, the date of the sale-deed of plaintiff No. 2 in favour of plaintiff No. 1,to January 21,1921, when the plaintiffs obtained a temporary injunction. The claim with regard to Pitambar's share of the pro6ts received by the defendant from July 30, 1918, to September 3, 1920, was dismissed on the ground that plaintiff No. 1 was entitled to the rent of Pitambar's share from the date of the sale-deed and the decree was asked in favour of plaintiff No. 1 and not in favour of plaintiff No. 2, who alone was entitled to the rent received by the defendant Jetha. The plaintiff No. 1 was allowed the rent of Pitambar's share from September 3, 1920, to January 21, 1921, and the Subordinate Judge passed a decree in favour of plaintiff No. 1 to the extent of Rs. 306-10-8. On appeal, the lower appellate Court held that the net rent was Rs. 1,500 instead of Rs. 1,600 and awarded the claim in favour of plaintiff No. 1 to the extent of Rs. 220. Both the plaintiffs have appealed.

3. It is urged on behalf of the appellants that the lower appellate Court erred in reducing the amount from Rs. 306-10-8 to Rs. 230, We are of opinion that the finding of the lower appellate Court is on a question of fact, and is binding on us in second appeal, and plaintiff No. 1 is not entitled to anything more than Rs. 230 as found by the lower appellate Court.

4. It is urged on behalf of plaintiff No. 2 that the defendant has admittedly received the rent of Pitambar's share to which he was not entitled from July 30, 1918, to September 3, 1920, and a decree ought to have been passed in favour of plaintiff No. 2 under Order I, Rule 4, of the Civil Procedure Code. It is urged on behalf of plaintiff No. 2 that a decree can be passed in favour of plaintiff No. 2 without an amendment under Order I, Rule 4, and if a decree cannot be passed in favour of plaintiff No. 2 without art amendment, it is urged that plaintiff No. 2 should be allowed to amend the plaint. An application was made to the lower Court to allow amendment of the plaint. It is urged on behalf of the respondent that the defendant clearly raised an objection in the written statement that plaintiff' No. 2 had not transferred his rights to plaintiff' No. 1 to collect the rent which accrued due for the half share of Pitambar sold by plaintiff No. 2 to plaintiff No. 1 before the date of the transfer, and, therefore, plaintiff No. 1 is not entitled to the share of the rent which accrued due before the date of the transfer; that the decree was asked for in favour of plaintiff No. 1 and plaintiff No. 2 was made merely a formal party; that Order I, Rule 4, could not apply to the present case, and that the amendment (should not be allowed as it would offend against the provisions of Order I, Rule 1, and Order II, Rule 3, and further that the amendment should be disallowed on the ground that the claim was barred by limitation at the time when the application was made to the lower Court on November 11, 1925, and reliance is placed on the decision in the case of Kisandas Rupchand v. Rachappa Vithoba I.L.R (1909) Bom. 644,: 11 Bom. L.R. 1042.

5. Under Section 8 of the Transfer of Property Act, a transfer of property passes forthwith to the transferee all the interest which the transferor is then capable of passing in the property and in the legal incidents thereof, and such legal incidents include the rents and profits thereof accruing after the transfer. Plaintiff No. 1 is, therefore, entitled only to the rents and profits of Pitambar's share after September 3,1920, and he is not entitled so the rents accruing due before the date of transfer. In the plaint a decree was sought for in favour of plaintiff No. 1 alone, und, therefore, the lower Courts were right in disallowing the claim with regard to the rent before the date of the transfer in favour of plaintiff No. 1. We are, however, of opinion that under the circumstances no decree can be passed under Order I, Rule 4, in favour of plaintiff No. 2 without an amendment, for a decree was not asked for in favour of plaintiff No. 2. If both the plaintiffs had asked for the amount of the rent in respect of Pitambar's share from the date of the purchase till the date of the temporary injunction, a decree could have been passed in favour of plaintiff No, 2 in respect of the rent from the date of the purchase till the date of the transfer, and in favour of plaintiff No. 1 in respect of the rents due from the date of the transfer to the date of the temporary injunction. The plaint in this case asked for a decree in favour of. plaintiff No. 1 and plaintiff No. 2 was merely made a formal party. We think, therefore, that Order I, Rule 4, does not apply and a decree cannot be passed in favour of plaintiff No. 2 without an amendment.

6. The question is whether an amendment of the plaint should be allowed. There is no doubt that the defendant has received the amount of the rent in respect of Pitambar's moiety to which he was not entitled. It is urged on behalf of the respondent that the amendment, if allowed, would offend against the provisions of Order I, Rule 1. We do not think that the amendment, if allowed, would offend against the provisions of Order I, Rule 1, for there was one cause of action against the defendant in respect of the wrongful recovery of Pitambar's share from the date of the purchase till the date of the temporary injunction, and the right of relief in respect of that cause of action can be alleged to exist severally in favour of plaintiff No. 1 and plaintiff No, 2. It is clear that if plaintiff No. 1 and plaintiff No. 2 brought separate suit8; common questions of law and fact would arise. In our opinion, therefore, the amendment, if allowed, would not offend against the provisions of Order I, Rule 1. Similarly, the amendment, if allowed, would not offend against the provisions of Order II, Rule 3, for, in our opinion, the cause of action is one as against the defendant in that he recovered the share of the rent from the date of the purchase till the date of the temporary injunction, and there would not, therefore, be several causes of action within the meaning of Order II, Rule 3. There is one cause of action, and the reliefs in regard to that cause of action are alleged to exist severally or in the alternative in plaintiff No. 1 and plaintiff No, 2. There is, therefore, no legal objection to allow the amendment. The suit was brought within time and plaintiffs Nos. 1 and 2 are parties to the suit from the beginning. It is not the case of a joinder of a new plaintiff seeking a relief in respect of which the claim is barred. No doubt, the application for amendment was made in the lower Court on November 11, 1925, but in the present case the suit was brought in the name of both the plaintiffs and relief was claimed in regard to the whole amount from the date of the purchase till the date of the temporary injunction, and though the defendant contended in the written statement that plaintiff No. 1 was not entitled to the rent accruing due before the date of his purchase, it cannot be said that the suit was beyond time. Instead of claiming the reliefs severally in favour of plaintiff' No. 1 and plaintiff No. 2, relief was wrongly claimed in favour of plaintiff No. 1. There is no ground for suspecting that the plaintiffs had not acted in good faith, and amendment can be allowed where through some blundering or inexpertness of pleading plaintiffs did not assert the rights to which they were entitled in the proper form in the plaint. See Charan Das v. Amir Khan (1920) L.R. 47 IndAp 255: 22 Bom. L.R. 1370,; Kisandas Rupchand v. Rachappa Vithoba I.L.R (1909) Bom. 644: 11 Bom. L.R. 1042.; and Sevugan Chetty v. Krishna Aiyangar I.L.R (1911) Mad. 378. We think that under the circumstances of the present case, the amendment should be allowed, but the plaintiff No. 2 should be disallowed the costs in respect of the claim.

7. We would, therefore, allow the plaintiff to amend the plaint as prayed for in the application made in the lower Court. The amount of the rents due to Pitambar's share from July 30, 1918, to September 3, lb20, comes to Rs. 1,562-8-0 at the rate of Rs. 1,500, the amount of net rent for the entire property. Payment of Rs. 376-8-0 is admitted and, therefore, the amount due is Rs. 1,186.

8. We would, therefore, vary the decree of the lower appellate Court and pass a decree in favour of plaintiff No. 2 in respect of Rs. 1,186. The appeal of plaintiff No. 1 is dismissed with costs, but the appeal of plaintiff No. 2 is allowed, no order as to costs. The cross-objections of the defendant will be dismissed with costs.

Baker, J

9. The point raised in this appeal is peculiar. It is unnecessary to go into the facts which are given at length in the judgments of the lower Courts. It is now found, and it is not disputed, that by reason of the transactions detailed in the judgments, plaintiff No. 2 was entitled to the rent of the buildings in suit and that the defendant had wrongfully received the rents. Plaintiff No. 2, however, transferred his rights to plaintiff No. 1 in September 1820, there being no stipulation as to past rents. Under Section 8 of the Transfer of Property Act the right to recover the rents prior to the date of the transfer did not pass to plaintiff No. 1, but remained with plaintiff No. 2. Plaintiff No. 1, however, sued for the rents, and plaintiff No. 2 was added only as a pro forma party to avoid any objections as to non-joinder, no relief being claimed by him. The somewhat curious result is that while the plaintiffs severally are undoubtedly entitled to the rents, plaintiff' No. 2 for the period prior to the transfer to plaintiff No. 1, and plaintiff' No. 1 for the period subsequent to the transfer, no relief can be granted with respect to the rents prior to the transfer, because plaintiff No 1 cannot get them, and plaintiff No. 2 has not claimed them in the suit. These rents were admittedly wrongfully received by defendant No. 1, and he now contests the right to recover these rents on technical as opposed to equitable grounds. No question of misjoinder of parties or causes of action arises, because the plaintiffs are both proper parties to the suit, and the cause of action in the case of both plaintiffs is the same, the cause of action in the case of plaintiff No. 2 being the series of transactions by which he became the owner of the property, and the cause of action in the case of plaintiff No. 3, the same series of transactions plus the transfer of the rights of plaintiff No. 2 to plaintiff No. 1. In other words, the title of plaintiff No. 1 is the same as that of plaintiff No. 2 or depends on it, the only difference between them being that the plaintiffs were entitled not jointly, but severally, to the rents for the period prior to, and subsequent to, the transfer. There is, therefore, no bar under Order I, Rule 1, of the Code of Civil Procedure, since both plaintiffs have a right to relief in respect of the same series of acts or transactions severally, and it' they had brought separate suits a common question of law or fact would arise. Nor is there any bar of Order II, Rule 3, since plaintiffs have causes of action in which they are jointly interested against the same defendant, for both plaintiffs are interested in proving the series of transactions by which the plaintiff No. 2 became entitled to recover the rents from the defendants. The difficulty is that the plaintiff No. 2 did not ask for the relief to which he is undoubtedly entitled. In these circumstances, though the Court has wide powers in granting relief, there may be some objection in granting relief when none is sought, and the learned pleader for the appellant has, therefore, asked for leave to amend his plaint so as to recover rents prior to the date of the transfer. It has of course frequently been laid down by all the High Courts that a party should b8 awarded such relief as he is found to be entitled to, though it may differ from the relief which he claims, the commonest case of that character being when a plaintiff claims exclusive possession and fails to prove his case as regards that but proves a right to joint possession, and in such a case he can be awarded joint possession. The present suit is not a case of that character, and I think there is a technical difficulty in the way of granting plaintiff No, 2 relief without an amendment. The amendment is opposed on the ground that it will deprive the defendant of the right he has acquired by limitation, the claim to the rents prior to September 1920 being now time-barred. It is argued that leave to amend should be refused, where the effect of the proposed amendment is to take away from the defendant a legal right which has accrued to him by lapse of time. There is, however, no absolute prohibition to the granting of an amendment in such circumstances, and in several cases where equity required it, the High Courts have allowed amendments to be made which have deprived the defendant of the right he bad acquired by the statute of limitation, I may refer to the cases of Kisandas Rupchand v. Rachappa Vithoba I.L.R (1909) Bom. 644: 11 Bom. L.R. 1042 and Sevugan Chetty v. Krishna Aiyangar I.L.R (1911) Mad. 378. These cases will be found collected at pp. 459 and 463 of Mulla's Code of Civil Procedure. 8th Edition, under Order VI, Rule 17. The Privy Council, in the case of Charan Das v. Amir Khan (1920) L.R. 47 I.A 255, : 22 Bom. L.R. 1370 said that there was no ground for suspecting that the plaintiffs had not acted in good faith: 'all that happened was that the plaintiffs, through some clumsy blundering, attempted to assert rights that they undoubtedly possessed under the statute in a form which the statute did not permit.' These observations will, in my opinion, apply to the facts of the present case, and I am, therefore, of opinion that the present is a case in which it is equitable that the amendment should be allowed for the reason that the defendant has no right to retain the rents, and that the plaintiffs appear to have made a mistake of law in not splitting the rents into two parts and making their respective claims to the portion of rents to which they are separately entitled. I am, therefore, of opinion that the amendment should be allowed, and the decree of the lower appellate Court modified by awarding plaintiff No 2 rents prior to the date of transfer to plaintiff No. 1.


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