Skip to content

Dyaviah and anr. Vs. Shivamma and anr. - Court Judgment

LegalCrystal Citation
CourtKarnataka High Court
Decided On
Case NumberSecond Appeal No. 297 of 1952-53
Reported inAIR1959Kant188; AIR1959Mys188
ActsCode of Civil Procedure (CPC), 1908 - Order 6, Rule 17; Indian Contract Act, 1872 - Sections 10, 11, 65 and 68; Specific Relief Act, 1877 - Sections 39 and 41; Transfer of Property Act - Sections 53A; Hindu Law
AppellantDyaviah and anr.
RespondentShivamma and anr.
Appellant AdvocateM.K. Srinivasa Iyengar, Adv.
Respondent AdvocateK.R. Gopivallabha Iyengar, Adv.
- motor vehicles act, 1988 [c.a. no. 59/1988]sections 168 & 173; [ram mohan reddy, j] compensation appeal against - claimant was an in-patient in the hospital for 13 days non-examination of the doctor who treated the claimant at the general hospital - uncorroborated medical certificate which certifies that the claimant sustained fractures of the 6th, 7th and 8th ribs held, tribunal fell in serious error and occasioned grave injustice to the appellant in not properly appreciating the evidence both oral and documentary before concluding that the claimant suffered from fractures of the 6th, 7th and 8th ribs in the accident that occurred. thus it goes without saying that disability cannot be believed and is unacceptable. compensation of rs. 1,49,000/- awarded by tribunal was reduced to.....1. this second appeal arises out of a decree in a suit where the plaintiffs sought to avoid the sale transaction purported to have been entered into by their predecessor-in-title on the ground that she was a minor at the date of the transaction. the plaintiffs claim to be the heirs of one thayamma. she and her brother chikkanna were owners of the suit property, each having a half and half interest in it.both of them purported to sell the suit property to defendant 1 under the sale deed ext. iv dated 24-10-40. after the document was duly executed by both of them, it was taken to the sub-registrar for registration. he suspected that thayamma may not be a major. although he registered the sale deed as executed by chikkanna, he declined to register it as executed by thayamma with an.....

1. This second appeal arises out of a decree in a suit where the plaintiffs sought to avoid the sale transaction purported to have been entered into by their predecessor-in-title on the ground that she was a minor at the date of the transaction. The plaintiffs claim to be the heirs of one Thayamma. She and her brother Chikkanna were owners of the suit property, each having a half and half interest in it.

Both of them purported to sell the suit property to defendant 1 under the sale deed Ext. IV dated 24-10-40. After the document was duly executed by both of them, it was taken to the Sub-Registrar for registration. He suspected that Thayamma may not be a major. Although he registered the sale deed as executed by Chikkanna, he declined to register it as executed by Thayamma with an endorsement to that effect below the document. Nothing further appears to have been done to rectify the matter and it appears that defendant 1 continued to be in possession of the whole of the suit property.

Defendant 1, however, sold the same to defendant 2. After the death of Thayamrna, plaintiffs have filed the suit as her heirs praying for a declaration that the alienation in favour of defendants 1, 2 and 3 is not binding on Thayamma's half share in the suit properties and for possession of that share. They also prayed for past mesne profits for three years amounting to Rs. 783/- and future profits and costs. A joint written statement was put in on behalf of defendants 1 and 2 whereby they practically admitted most of the allegations but they denied the fact that Nanjundiah, father of Thayamma fraudulently brought about the sale deed.

They also contended that several debts were contracted by Chikkanna and Nanjundiah as guardian of Thayamma for legal necessity and that in order to discharge these debts the properties were sold to the defendants under Ext. IV. The trial court held that Thayamma being a minor at the date of the sale transaction Ext. IV. her half share was not affected by the sale and decreed the plaintiffs' claim for a half share together with past mesne profits of Rs. 783/-. On appeal by defendants 1 and 2, the decree of the trial Court was confirmed. Hence this second appeal by the same defendants.

2. It was urged by the learned Advocate for the appellants that in the trial Court the defendants put in an application seeking permission to amend the written statement and that the same was wrongly rejected by the trial Court. It is found that this application was filed on 25-11-50 after the hearing of the case was over and after even the arguments were heard and the case was closed. By the amendment the defendants wanted to add one more ground of defence under Section 53-A of the Transfer of Property Act. Apart from the merits of the additional contention, the application was made at too late a stage. If it was granted, that would have necessitated a fresh issue and a fresh recording of evidence. The trial Court was therefore right in rejecting such a belated application.

3. The first ground urged by the learned Advocate for the appellants was that the deceased Thayamma, through whom the plaintiffs claim a half share in the suit property, had herself no right or title to that share. He urges that the plaintiffs have produced the will Ext. A dated 29-5-31 to show that Thayamma had a half share. That is a will executed by Chaluvamma, monther's mother of Chikkanna and Thayamma. The testator Chaluvamma had a half share in the suit property and some others.

By the said will Ext. A, she bequeathed her interest in favour of Chikkanna. As there was no bequeathal in favour of Thayamma the learned Advocate urges that the will gives no right or title to Thayamma in respect of a half share in the suit property. It is not the plaintiffs' case that Thayamma got a half share as a legatee under the will. According to the plaintiffs, Thayamma had otherwise inherited a half share. They relied on the will to show firstly that Chikkanna's share was only half. Secondly they rely on a recital in the will that Thayamma had a half share in the property although it is not the subject-matter of the bequeathal.

In addition to this, there is the defendants' own admission in the written statement that Thayamma had a right to a share in the suit properties although it does not admit that the share was half. In the course of his deposition in Court, their witness Chikkanna D. W. 5 admits that he got a half share in the properties under the will and also that the minor plaintiffs have a half share. Similar is the admission of defendant No. 1 who is D. W. 6 in the case. It is thus proved beyond doubt that Thayamma had a half share in the suit properties.

4. The minority of Thayamma at the date of the sale has not been seriously disputed. It follows, therefore, that any sale transaction entered into by her is void. In the present case, the suit property was owned half and half jointly by Chikkannna and his sister Thayamma. The sale deed has been written in the names of both of them as vendors and has been duly executed by both of them.

It appears that the question of minority was, for the first time, raised when the document was taken to the Sub-Registrar for registration. The endorsement made by him below Ext. IV shows that as Thayamma appeared to him to be a minor, he rejected the registration of the document so far as she was concerned. It is thus virtually conceded by both sides that the sale transaction in respect of the half share of Thayamma is invalid and that the plaintiffs are entitled to a share in that behalf.

5. The only point seriously contested in this appeal is about the equities that arise on the setting aside of the sale. According to the learned Advocate for the appellants, when Thayamma and her brother Chikkanna were minors, they were under the guardianship of their father Nanjundiah and the whole of their properties were being managed by him. During that period, and possibly when Chikkanna had come of age, Nanjundiah borrowed certain amounts for the marriage and other expenses of the two persons and also for their maintenance.

In that connection, documents were passed both by Chikkanna and Nanjundiah. They are Exts. I, II, III and X. It is to pay off these debts which were binding on the two persons that the sale transaction in question was effected. In fact, the above debts were actually discharged by the vendee and endorsements were duly taken on the abovesaid documents. It is thus contended that the debts are binding on the respective shares of the two sharers.

On the setting aside of the sale, it is urged that equities arise in favour of the defendants who have paid off these debts and that the same should be made payable by the plaint'ffs before they take back possession of their properties. For the respondents-plaintiffs, it is contended that no such relief can be granted in such a case where the transaction was void ab initio on account of the minority of the vendor.

The learned Advocate for the respondents urges that the only provision under which such a claim can be made is Section 68 of the Indian Contract Act and that the scope of that section extends only to the reimbursement in respect of the necessaries of life supplied for the minor. It is also urged that the person who borrowed was Nanjundiah, the genitive father of Thayamma. Under Hindu Law it was his duty to maintain his daughter and a reimbursement of the supplies of necessaries of life cannot, therefore, he claimed. The learned Advocate further contends that the appellants' claim in this behalf is barred by limitation although he does not specify the Article under which it is so barred.

6. According to the learned Advocate for the appellants, his claim is not one under Section 68 of the Contract Act but it is governed by Section 65. Hence the question of applicability of Section 68 need not be considered. Since the learned Advocate for the respondents contends that the provisions of Section 65 are inapplicable to this case, that question will have to be examined. The initial objection urged against the application of the provisions of Section 65 is that the section contemplates cases which are valid to begin with and not void from the inception. In order to understand the scope of that section, it would be useful to mention it in extenso :

'When an agreement is discovered to be void, or when a contract becomes void, any person who has received any advantage under such agreement or contract is bound to restore it, or to make compensation for it, to the person from whom he received it.'

7. It is material to note that the section covers two types of cases. The first relates to agreements discovered to be void and the second relates to contracts which become void. So far as the second part is concerned, the implication is that the contract must be a valid one when it was made and that it becomes void subsequently. The first part which contemplates cases where 'an agreement is discovered to be void' indicates that the parties were unaware of the void nature of the agreement until the date of discovery. This suggests that in this class of cases the agreement is void when it was made but it is so discovered at a later date.

Hence this part of the section does coyer cases of the type under consideration. The next contention is that this section applies only to cases where the parties entering into the transaction are competent to contract. If the parties were incapable of entering into a contract, it is urged that there could be no agreement or contract at all. In considering this question, it is necessary to note that in the two classes of cases contemplated by this section, there are two different words used. The first clause relates to agreements and the second to contracts. In this connection, it would be useful to look at the definitions of the said two words. Section 2(e) defines an agreement as follows:

'Every promise and every set of promises, forming the consideration for each other, is an agreement'.

Clause (h) of the same section defines a contract as follows:

'An agreement enforceable by law is a contract.'

Clause (g), however, lays down that an agreement which is not enforceable by law is said to be 'void'. Thus an agreement may be enforceable in law when it is called a contract, or may be unenforceable when it would be void. This suggests that there may be an agreement although it is unenforceable. This shows that the word 'agreement' used in Section 65 does include cases of agreements which are void at the inception.

8. What agreements are contracts is explained in Section 10 of the Indian Contract Act. Section 11 thereof speaks of the competency lo contract. It lays down that a person is competent to contract

(1) if he is a major;

(2) if he is of sound mind and

(3) if he is not disqualified from contracting by any law to which he is subject.

Hence it is only when a person is a major that he is competent to enter into a contract; otherwise the contract is void ab initio. This disability to enter into a contract does not extend to cases of entering into an agreement. A party who is a minor may nevertheless enter into an agreement since all that Clause (e) of Section 2 requires is that there must be a promise forming consideration for another promise. The definition of promise as given jn Clause (b) of Section 2 is as follows :

'When the person to whom the proposal is made signifies his assent thereto, the proposal is said to be accepted. A proposal, when accepted, becomes a promise.'

This clause requires that a proposal should be made by one person and assented to by another in order to constitute a promise. There is nothing to indicate that the word 'person' used in this clause necessarily implies that he must be a major. If a minor enters into an agreement, it may not become a contract by reason of Section 11 hut it may nevertheless be an agreement. In view of this discussion, it is difficult to accept that the word agreement used in the first part of Section 65 indicates that it must have been entered into by a person competent to contract i.e., by one who is a major. It is wide enough to include cases where the agreement was entered into by a minor also. In that case, no doubt, the agreement is unenforceable in law and is, therefore, void. Even then, it comes within the ambit of the provisions of Section 65.

9. This view of mine is supported by the decision of the Privy Council in Harnath Kunwar v. Indar Bahadur Singh reported in ILR 45 All 179: (AIR 1922 PC 403) where their Lordships dealing with Section 65 of the Indian Contract Act have held :

'An agreement therefore discovered to be void is one discovered to be not enforceable by law, and, on the language of the section, would include an agreement that was void in that sense from its inception, as distinct from a contract that becomes void'.

The above case was followed in Appaswamy Iyengar v. Narayanaswamy Iyer, ILR 54 Mad 112: (AIR 1930 Mad 945) where also the transaction in question was void from its inception. Considering the observations of the Privy Council in the earlier case of Mohori Bibee v. Dharmodas Chose, reported in ILR 30 Cal 539, Reilly J. (as he then was) observed:

'In my opinion, it is clear that in no part of what they said in Mohori Bibee v. Dharmodas Ghose were their Lordships considering the first part of Section 65 of the Contract Act..... So when we examine these two cases, I think it is clear thai Section 65 of the Contract Act is applicable to a case like this and has been applied by their Lordships to a similar case in ILR 45 All 179: (AIR 1922 PC 403). On this basis, it is clear that plaintiff No. 1 in this case, if she has to get back the property, must repay the purchase money'.

A similar view has been taken by Kumaraswamy Sastry J. in that case.

10. We have next to consider whether the facts of the present case fall within the provisions of the first part of Section 65 viz. whether there was an agreement between the minor Thayamma and defendant 1 regarding the sale noted in Ext. IV and whether it was subsequently discovered to be void. As already mentioned, a reference to the agreement discovered to be void implies that the parties were unaware at the time of entering into the agreement that it was void. In the present ease, the voidness of the agreement arises on account of the minority of one of the vendors viz. of Thayamma.

Hence the question for consideration is whether the parties knew that Thayamma was a minor on the date the agreement was entered into or whether they discovered it subsequently. It may also happen that the minority of one of the parties may be deliberately suppressed by the minor or his people and he may induce the other party by his representations to believe that he is a major. In such cases, suppression is generally done with some intention to make a wrongful gain and it is said to he fraudulent. It may also happen in some cases that the other party may persuade a minor to enter into an agreement with him by inducing the minor to believe that he is a major.

This also is done with a view to make some wrongful profit. This act also is called fraudulent. There may be a third class of cases where there is a bona fide belief on behalf of both parties that the person concerned is sui juris. There is no fraud involved in such a case on the part of either party. Even then, the agreement is unenforceable and therefore void.

In the present case, the plaintiffs who claim to be the heirs of Thayamma do not allege that the vended Induced her to believe that she was a major and thus to enter into the sale transaction. According to them, it was one Nanjundiah, father of Thayamma (who was for several years prior to the sale transaction, the guardian of Thayamma) who 'got a fraudulent sale of her share in favour of the 1st defendant along with that of Chikkanna'.

This reference of fraud attributed to Nanjundiah is in regard to the bringing about of a sale and has no pointed reference to a fraudulent representation that Thayamma was a major. Assuming that the word 'fraudulent' used, would indicate such a representation, it shows that Nanjundiah got a fraudulent sale effected in favour of the 1st defendant, meaning thereby that he practised fraud upon the 1st defendant. There is nothing to indicate that the fraud was practised upon Thayamma or that it was practised by Defendants.

In the course of his examination as D. W. 1, he swore 'Then my daughter was over 18 years.' It must have been this representation that he gave to the vendee, defendant 1. There is no documentary evidence on record to show that Thayamma was a minor on the date of the sale deed Ext. IV. In the body of Ext. IV. the ago of Thayamma is mentioned as 18 years. The scribe of Ext IV who is examined as D. W. 2 states that it was Thayamma and Chikkanna that asked him to write the document saying that they had sold the land. He also states that they gave out the age of Thayamma as 18 years.

From this it is clear that even Thayamma and Chikkanna believed that she had come ot age. Chikkanna D. W. 5 states that Thayamma was 17 years old when she was married. It was 2 or 3 months after Ext. 10, dated 12-12-38. This also shows that she was major at the lime of the sale deed Ext. IV. dated 24-10-40. This evidence is being referred to not with a view to show that she was a major, as both parties have proceeded on the tacit assumption that she was a minor at the date of Ext. IV but the said evidence is discussed to show that as she was probably on the verge of stepping into majority, it is possible that both parties honestly believed that she was a major-The allegations of the parties in the pleadings also do not go to show that either party misrepresented the matter to the other. Hence there is no question of fraud practised by either of the parties in this case. Both parties having bona fide believed that she was a major, they entered into the agreement of sale. This is further supported by the fact that they not only entered into an oral agreement but they got a sale deed Ext. IV written and it was duly executed by both the vendors including Thayamma.

They further took the document to the Sub-Registrar for the purpose of registration. It was there, that a doubt was entertained by the Sub-Registrar that Thayamma might be a minor. He, therefore, registered the document only as executed by Chikkanna and declined to register it as executed by Thayamma. It is a pity that no attempt was made by either of the parties to find out the correct age of Thayamma and to get the document registered, if she was a major.

11. According to the terms of the sale deed, Ext. IV, the land measuring 3 acres was sold for Rs. 2,700/-. Out of it, Rs. 2,300/- was left with the vendees for discharging the prior debts incurred by Chikkanna and by Nanjundiah on behalf of Thayamma. The balance of Rs. 400/- also having been received separately under a consecration receipt, there was nothing left to be produced by the vendee before the Sub-Registrar. The possession of the properties was also given. This shows that aft the terms of the sale transaction were virtually given effect to even prior to the execution of the sale deed.

Hence when it was discovered that Thayamma might be a minor as suspected by the Sub-Registrar, the sale was complete. It is thus a case where an agreement of sale was later on discovered to be void, as contemplated in Section 65 of the Indian Contract Act. As per terms of that section, the plaintiffs who claim that the sale be set aside and the property delivered to them, are bound to restore the money received by them under the sale or to make compensation to the defendants.

12. Apart from the provisions of Section 65, the equitable principles of restitution as embodied in the provisions of Section 41 of the Specific Relief Act are also applicable to this case. Under the provisions of that section, the Court can require the party in whose favour a transaction is held to be void to make compensation to the other in respect of the benefit derived by him under that transaction. The initial objection to the application of this section is that it is applicable to cases where an instrument is specifically got cancelled under the provisions of Section 39 of the Specific Relief Act and not to transactions like the present where they were void ab initio and needed no cancellation of any instrument. This question was considered specifically by Reilly J. (as he then was) in the above cited case, and it was observed:

'If plaintiff 1 had simply brought her suit for possession, defendant 1 would have met her with her sale deed. Then tbe Court would have had to consider the very same question, whether there was a, valid sale deed, whether it was a sale deed which tlie court should declare void, as has been declared here, and, when the court considered the matter in that way it would have been proper to apply the principles of section 41 of the Specific Relief Act.

13. It is urged that restitution was not allowed by the Privy Council in the case of ILR 30 Cal 539. But in that case, the party who had lent the money to the minor was aware of the minority. While recognising that Section 41 does give discretion to the Court, their Lordships of the Privy Council did not see any reason for interfering with the discretion of the lower Courts since the latter had declined to direct a return of the money on consideration of the facts of that case. Hence that case does not establish the proposition that restitution cannot be allowed under Section 41 of the Specific Relief Act in cases where the sale is void on account of minority.

14. A specific question viz.

'whether a party, who, when a minor, has entered into a contract by means of a false representation as to his age, whether he be defendant or plaintiff, in a subsequent litigation, can refuse to perform the contract and at the same time retain the benefit he may have derived therefrom',

was the subject-matter for the opinion of the Full Bench in the case of Khan Gul v. Lakha Sivigh, ILR 9 Lah 701: (AIR 1928 Lah 609). This virtually involves the principles of the doctrine of restitution expressed in Section 41 of the Specific Relief Act. In that case, Shadi Lal C. J. observed:

'It is beyond question that under this section the Court has the discretion to impose terms upon A and to compel him to pay Rs. 1,000/- as compensation to B. The statute nowhere says that pecuniary compensation should not be allowed, when the award thereof would be tantamount to the repayment of the money borrowed on the strength of avid transaction. Indeed the courts in India have ordered the minor to refund the money received by him before allowing him to recover the properties sold or mortgaged to the other party'.

It is further observed

'The doctrine of restitution is not, however, confined to the cases covered by that section. The doc-trine rests upon the salutary principle that an infant cannot be allowed by a court of equity to take advantage of his own fraud'.

15. It needs to be considered whether grant of restitution, under such circumstances, in the case of a void contract amounts to enforcing that contract. That is not so. The courts will hold that the transaction is void and set aside the transaction and direct that the property be restored. But while directing that restoration the Court has to adjust the equities between the parties. It cannot allow the minor to retain the benefit he has secured wider the very contract which ho seeks to set aside. To allow him to do so would be to give him a double advantage, to which he is not entitled.

16. In the case of Walidad Khan v. Janak Singh, ILR 35 All 370, certain zamindari property was sold to persons who were minors on the date of sale. The purchasers were subsequently ousted by reason of a decree obtained by third parlies. It was then held that the purchasers were, at any rate, entitled to recover from the vendors the sum which they had paid as purchase money.

17. It is urged by the learned Advocate for the respondent that in almost all cases where a refund is directed by declaring that a transaction is void, the party against whom the direction is made, is found to be guilty of fraud or fraudulent representation. If he is a minor, he is guilty of falsely representing that he was a major. It is further urged that, in the present case, there is no allegation that Thayamma made any such false representation and that, therefore, there is no scope for the application of Section 41.

It does appear that in a majority of cases the party is found to have made fraudulent representations. But that does not appear to be one of the ingredients of Section 41 of the Specific Relief Act. Even otherwise, restitution under that section is an equitable relief. The question of fraudulent representation may find a place for consideration when that relief is to be granted. Considering from this point of view, it can be seen that, in the present case, there has been no fraud practised by either of the parties. Both parties appear to have honestly believed that Thayamma was a major and to have acted on that bona fide belief. Hence when the defendants aro in no way guilty of fraud, they cannot be precluded from claiming the benefits of the equitable relief.

18. One more point remains to be considered; that is, whether the benefits under Section 65 of the Contract Act can be claimed if the party claiming them had received the benefit after the agreement or transaction was discovered to be void. This also involves an equitable principle that if a party deliberately receives benefits knowing full well that it is illegal and void, he does not come to court with clean hands and therefore he will not be entitled to any equitable relief. In the case of Ram Nagina Singh v. Governor-General in Council : AIR1952Cal306 , it was held:

'In the case of agreements, Section 65 applies only to cases where benefit or advantage is derived under an agreement before it is discovered to be void. If the benefit is received after the agreement is discovered to be void, then the advantage cannot be said to have been received under the agreement. Section 65 embodies and is an expression of the principle of restitution and of prevention of unjust enrichment.' A similar view was also taken in Jagadish Prasad v. Produce Exchange Corporation AIR 1946 Cal 245.

19. It now remains to examine whether any monies were paid to Thayamma or on her account and whether they were paid prior to the discovery of the transaction declared to be void. As already mentioned, no amount was to be paid at the time of registration. The cash of Rs. 400/- that was to be paid under the sale deed was also paid under a receipt. The balance of Rs. 2,300/- was to be paid for the discharge of the previous debts,

Under these circumstances, it is clear that no benefit was received by or on behalf of Thayamma after the discovery of her minority. In fact, even the objection taken by the Sub-Registrar was on no substantial data, Possibly from her appearance, he suspected that she might be a minor. There is nothing to show that he examined any persons or collect-ed any data to reach that conclusion. Under these circumstances, 1 do not think that the defendants in this case can be disentitled from getting restitution.

20. The next question is as to the amount which the plaintiffs should be directed to refund. Four documents have been produced to show the existence of previous debts. Ext. 10 is a mortgage deed for Rs. 500/-, dated 12-12-38, passed by Chikkanna and his father Nanjundiah in favour of one Dase-gowda. It recites that the amount was borrowed for the purpose of discharging a debt of Rs. 500/- incurred for the purpose of marriage of Thayantma the daughter of Nanjundiah. Thereafter on 25-7-39, another mortgage bond, Ext. I, was passed for Rs. 1,000/- by the said Nanjumdiah and Chikkanna and also by Thayamma, minor by her guard:ian and father Nanjundiah.

The recital in this document is that Rs. 500/- out of the loan were required for paying the debt of Dasegowda (presumably under Ext. 10 referred to above), and the remaining Rs. 500/- for discharging the hand loans borrowed for the marriage of Chikkan-na. The effect of both these documents is that out of a loan of Rs. 1,000/-, Rs. 500/- alone went for the expenses of the marriage of Thayamma, which is a necessity binding on her.

The third document is Ext. II, dated 6-5-40. It is a mortgage bond for Rs. 500/- passed by the said Nanjundiah, Chikkanna and Thyamma, minor by her guardian and father Nanjundiah. It is mentioned that this amount was borrowed for expenses of nuptials of Chikkanna and also for family expenses. Nanjundiah, D. W. 1 states that the amount was needed for the expenses of confinement of Thayamma. It is urged that the major portion out of this debt must have been required for the nuptials of Chikkanna which amount cannot be said to be binding on Thayamma.

But it cannot be denied that a substantial portion must also have been utilized for the expenses of confinement of Thayamma. There is another debt of Rs. 500/- borrowed under the pronote Ext. III, dated 17-5-39, by the said Nanjundiah and Chikkan-na. It is urged that this amount was also for family expenses and therefore binding on Thayamma. But the learned Advocate For the respondents contends that the family at that date consisted of as many as six members out of whom Thayamma was one. It is, therefore, urged that Thayamma cannot he held liable for anything but small portion of the debt.

Chikkanna D. W. 5 states that this debt was borrowed for purposes of litigation in respect of the properties that had been given to them, and refers to Ext. G as the copy of the decree in that connection. This relates to a suit to which both Chikkanna and Thayamma were parties defendants. Although the suit was decreed much earlier, it is not unlikely that they must have incurred expenses and possibly, debts on that account.

As there is no cross-examination of Chikkanna in respect of the above averment, there is no reason why the words of Chikkanna should not be accepted. Even then, it is not clear as to what was the debt incurred on account of the litigation. Nor is there anything to indicate how much of the debt was spent for family expenses and out of that, what amount was expended on recount of Thayamma. On the other hand, Ext. G shows that the amount of costs shown as incurred by the defendants is Rs. 189-15-0. The decree further shows that the plaintiffs' suit was dismissed with costs.

Thus the said amount was liable to be recovered by the defendants from the plaintiffs in that suit. In view of all these circumstances, I do not think a debt of anything more than Rs. 50/- should be held to be binding on Thayamma in respect of Ext. III. So far as Ext. II is concerned, I have already mentioned that the amount was borrowed for the expenses of the nuptials of Chikkanna, the confinement of Thayamma and for family expenses. It is difficult to correctly allocate the expenses for each of these items.

In my opinion, an amount of Rs. 150/- may be safely allotted as incurred on account of Thayamma both for her confinement and maintenance, in respect of Exts. 10 and I, an amount of Rs. 500/- borrowed to meet the expenses of her marriage will be binding on her. The total amount thus binding on Thayamma will be Rs, 700/-. In this connection, it may be noted that out of the amount left with the vendees under Ext. IV all these debts (barring the debt under Ext. 10) were actually paid by the vendees and endorsements taken below the documents Exts. I, II and III.

These endorsements are marked as Exts. I(a), II(a) and III(a). They include interest also besides the principal amounts. The learned Advocate for the respondents contends that he has claimed past mesne profits only for three years and not for the earlier years as it was time-barred. His contention further is that when equitable relief, as at present, is to be given, the mesne profits which could not be claimed in this suit as barred by limitation should also be taken into consideration. It should be noted that the amount also needs to be charged with interest. One decree may be said to be set off against the other. In view of all these I come to the conclusion that the plaintiffs should refund a sum of Rs. 700/- before they take possession of the properties.

21. The appeal is partly allowed. The decree of the lower Court is modified. It is directed that the plaintiffs should deposit in Court a sum of Rs. 700/- before they execute the decree. This amount is payable to the appellants. Both parties will bear their own costs in this appeal.

22. Appeal partly allowed.

Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //