1. This is an appeal from a judgment and decree dated February 22, 1924, of the High Court of Judicature at Patna, which reversed a judgment and decree, dated March 9, 1921, of the District Judge of Durbhanga and made in Suit No. 835 of 1919.
2. That suit was instituted by the plaintiff, Mahabir Sahu, against six defendants. all members of a joint Hindu family, constituted as shown in the pedigree below :-
Ramsaran Mandar Ranglal MandarDefendant 1 a deceased brother| of Defendant 1Narain |Defendant 2 -----------------------------| | |--------------------- Thakur Persad Lachminarain| | Defendant 3 Defendant 4Raj Kumar Ram KumarDefendant 5 Defendant 8
3. Defendants Nos. 4, 5 and 6 were all minors at the time the suit was filed, but defendant No. 4 attained majority before judgment. Defendant No. 3 died before filing any written statement.
4. The plaint alleged that Ramsaran (defendant No. 1), as head and karta of the above joint family, entered into an agreement with the plaintiff to sell certain houses and lands belonging to the said family for Rs. 11,000, and on August 20, 1919, executed an agreement for such sale (Ex. 5 in the case) on receipt of Rs. 9,000 as earnest money, 'affixing a stamp with his signature and thumb impression thereon,' and stipulating to execute and register a regular conveyance within three weeks on receipt of the balance of the consideration. Ramsaran failed to execute the conveyance though called upon to do so, and the plaintiff prayed for specific performance of that agreement on payment of Rs. 2,000, or 'if for any reason a decree for specific performance be not possible in the opinion of the Court, Rs. 9,000, the prinicipal amount of the earnest money, with interest thereon, at Rs. 2 per month by way of damages may be awarded to the plaintiff against the defendants.'
5. By his written statement Ramsaran denied that he entered into any such agreement, or that he executed the document (Ex. 5) as alleged or 'received a single farthing as earnest money.' He asserted that it was a false case altogether, put forward by one Kisorilal, in the name of his father-in-law, the nominal plaintiff, with a view wrongfully to obtain the properties in suit which he had unsuccessfully claimed in previous litigation; that the value of the properties was at least Rs. 21,000, and the story of an agreement to sell them for Rs. 11,000, was false and fraudulent.
6. Written statements were put in, on behalf of the defendants Nos. 2 and 4, and of the minor defendants Nos. 5 and 6, by which they also denied the truth of the plaintiff's story, and further pleaded that even if defendant No. 1 entered into any such transaction, 'he had no right to make any contract to execute a sale deed in respect of the said properties, nor were these defendants at all benefited by the said act.'
7. The two chief issues raised on these pleadings were numbered 4 and 6 respectively in the trial Court, and were as follows:-
Issue 4.-Is the letter of agreement dated August 20, 1919, genuine and for consideration Did the defendant No. 1 enter into any agreement for the sale of the properties in suit and receive Rs. 9,000 as earnest money as alleged in the plaint ?
Issue 6.-Are the other defendants bound by the agreement entered into by defendant No. 1 ?
8. On the fourth issue the District Judge held that the agreement (Ex. 5) was not proved to be genuine, and that even if genuine there was no consideration for the same.
9. On the sixth issue he held that the contract was not binding on the other defendants, as the plaint did not allege, nor was any evidence adduced by the plaintiff, to show that the contract was entered into for the benefit of the defendant's family, or that it was necessary as an act of prudent management.
10. The District Judge accordingly dismissed the suit with costs.
11. The plaintiff appealed to the High Court of Patna. Pending appeal Ramsaran (defendant No. 1) died, and by an order dated December 19, 1922, the cause title was amended as follows:-
Mahabir Sahu-Plaintiff appellant
Ramsaran Mandar and, after his death, respondents 2, 4 and 5 are his heirs (vide Order dated December 19, 1922)-2, Narayan Mandar; 3, Lachminarain Mandar; 4, Raj Kumar Mandar ; 6, Ram Kumar Mandar (Nos. 4 and 5 minors), through Babu Soney Lal Choudhury, defendants respondents.
12. At the hearing of the appeal in the High Court, counsel on behalf of the plaintiff (appellant) gave up his claim for specific performance, but contended that plaintiff was entitled to recover the earnest money paid (Rs. 9,000), with reasonable interest.
13. The learned Judges of the High Court proceeded upon the view that the only issue which the Court below had to try was forgery or no forgery. They were of opinion that the expert evidence to the effect that the thumb-mark on Ex. 5 was identical with the thumb-mark of defendant No. 1 taken in Court was conclusive as to the genuineness of the mark, and so strongly supported the plaintiff's case that the improbabilities, contradictions and suspicious circumstances relied upon by the District Judge were not sufficient to displace the evidence on the plaintiff's side with regard to the execution of the agreement and the receipt of Rs. 9,000 by the defendant Ramsaran. On this basis the High Court set aside the decree of the lower Court and decreed that the plaintiff was entitled to Rs. 9,000 with interest at one per cent. per year from August 20, 1919, to date of decree, and at six per cent, on decree, as against all the defendants.
14. The learned Judges do not appear to have considered either issue No. 6 or the District Judge's finding thereupon.
15. At the hearing of the appeal before this Board there was considerable argument at the Bar on the question of the genuineness of the agreement Ex. 5 and the receipt of the Rs. 9,000, as to which the two Courts in India have differed. Their Lordships are, however, relieved from the necessity of pronouncing any opinion on these questions of fact, inasmuch as the decree of the High Court cannot be sustained in law, even if their conclusions of fact were well founded.
16. The suit was framed as an ordinary suit for specific performance of an agreement, with an alternative claim for damages for breach thereof, such damages being assessed at Rs. 9,000 (the earnest money paid), with interest at two per cent. from date of agreement to date of realisation. The amendment of the cause title in the appeal before the High Court on the death of defendant No. 1, above referred to, did not alter the nature of the suit. Nor did the abandonment of the claim for specific performance at the hearing of that appeal alter the suit as framed into an action for money had and received, or for the recovery of a debt. Even so the suit was bound to be dismissed as against Lachminarain, defendant No. 3, who was not an heir of Ramsaran, defendant No. 1, and against whom the liability of sons and grandsons to pay their ancestor's debts under the doctrines of Hindu law could not be invoked. Mr. De Gruyther, on behalf of the plaintiff respondent, conceded that point, but relied on that very doctrine in order to support the decree as against defendants Nos. 2, 5 and 6, the son and grandsons of defendant No. 1, who are now on the record in a dual capacity. . It was urged by Mr. De Gruyther that the decree of the High Court should stand, as against defendants Nos. 2, 5 and 6, and the question whether they had in their hands any assets of Ramsaran against which such decree could be onforced might be left to be determined in proceedings for execution of that decree; and that, if necessary, the plaint might be amended even at this stage, under the wide discretionary powers of this Board and the somewhat elastic provisions of the Code of Civil Procedure in that behalf.
17. Their Lordships cannot accede to these arguments. It is not permissible by amendment to change the nature of the suit as framed; and even if it were, the defendants affected by such amendment must have an opportunity to rebut such new cause of action, a course which would involve fresh written statements and a fresh trial. Their Lordships are unable to permit such a course at this stage.
18. The result is that no decree can be made against the surviving defendants in this suit. The decree of the High Court must be set aside and the suit dismissed, with costs in all Courts, including the costs of this appeal, and their Lordships will humbly advise His Majesty accordingly.