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Kewal Singh and ors. Vs. Ram Sahai and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtAllahabad High Court
Decided On
Judge
Reported in(1887)ILR9All672
AppellantKewal Singh and ors.
RespondentRam Sahai and anr.
Excerpt:
.....but in addition to what he has mentioned, i may observe that, from the admitted facts of this case, there can be no doubt that the present defendants purchased the property knowing full well that they were purchasing nothing more than the share of akbar singh. fourthly, that the present defendants-appellants purchased the property at that sale, knowing full well that they were purchasing the right, title and interest of the father, and no more......of mauza ririya, by a declaration that the property is the joint property of the plaintiffs and akbar singh, and that the defendants had obtained the share of akbar singh as auction-purchasers, and are entitled to the possession of his share after determination of its extent by a suit for partition. they also prayed for a decree for mesne profits to the extent of the shares sued for from rabi 1879 to kharif 1885, and they also prayed for provision to be made for future mesne profits. the circumstances out of which this suit has been brought are these: on the 27th december 1863, akbar singh, the ancestor of the plaintiffs borrowed a sum of rs. 99 from the defendants, and as security for that loan he hypothecated a four annas zamindari share of mauza bhojpur. it subsequently appeared.....
Judgment:

Straight, J.

1. The suit to which this appeal relates belongs to a class of cases that has frequently occupied the attention of this Court upon former occasions in a somewhat different shape, and has been the subject of numerous decisions at the hands of their Lordships of the Privy Council. The plaintiffs-respondents, who are the sons and grandsons of one Akbar Singh, sue to recover from the defendants 3 annas 8 pies 7 krants and 1 2/5 jans of the zamindari share of mauza Ririya, by a declaration that the property is the joint property of the plaintiffs and Akbar Singh, and that the defendants had obtained the share of Akbar Singh as auction-purchasers, and are entitled to the possession of his share after determination of its extent by a suit for partition. They also prayed for a decree for mesne profits to the extent of the shares sued for from rabi 1879 to kharif 1885, and they also prayed for provision to be made for future mesne profits. The circumstances out of which this suit has been brought are these: On the 27th December 1863, Akbar Singh, the ancestor of the plaintiffs borrowed a sum of Rs. 99 from the defendants, and as security for that loan he hypothecated a four annas zamindari share of mauza Bhojpur. It subsequently appeared that he had no interest in or authority to hypothecate this particular mauza or the share in it, and in consequence the defendants were constrained to bring a suit against him to recover back from him the money which, in point of fact, by fraud he had obtained a loan of from them, and on the 7th December 1868, they obtained a decree against Akbar Singh for that amount. Apparently that decree was not perfected, so far as execution was concerned, until the 20th March 1873, when the right, title and interest of Akbar Singh in certain properties were put up to sale, were sold, and were bought by the present defendants, the then decree-holders. There can be no question, from the terms of the decree of the 7th December 1868, that it was a simple money-decree, and in clear and specific terms affecting only the judgment-debtor in the suit that had then been tried. But it is equally plain that all that was notified for sale was the right, title and interest of the judgment-debtor, and from the terms of the sale-certificate, which is the defendant's document of title, and upon which he claims the right to hold possession of the whole of the property; that is to say, including not only the share of Akbar Singh, but the interest of the plaintiffs, all that the defendants bought at the auction-sale was the right, title and interest of Akbar Singh. So that this case is distinguishable from the vast majority of cases to which I have already referred, which have been decided by this Court and by their Lordships of the Privy Council, because here there was a mortgage which turned out to be a fraudulent act of Akbar Singh, and a simple contract-debt, and simple money-decree, and a sale in specific terms of the right, title and interest of the judgment-debtor. Therefore the considerations that would arise in regard to the position and rights of an auction-purchaser at sale in execution of a decree obtained by a creditor against the father upon a mortgage made by him did not arise. And it seems to me that in this case, which relates, as I have said before, to a sale which took place in execution of a simple money-decree and to a contract made between the father and the defendant out of which a loan was made to him, if the defendants in the suit that they brought to recover money from the father sought to make the plaintiffs liable along with him for the amount, they should have included them in that suit as parties, and obtained a decree against them, and executed it against them. They did not do anything of the kind, and the fact remains that the decree was a simple money-decree, and what was sold, namely, the interest of Akbar Singh, was all that they are entitled to claim.

2. The contention for the defendants is that though that was a simple money-decree, and that though in terms nothing but the interest of the father was sold, nevertheless, from the mere circumstance that he was the father, it must be assumed that the decree was made against him in his Rapacity of karta, and as such the plaintiffs are bound by that decree and the sale that took place under it.

3. I dissent wholly from that view, and I have, in support of the opinion I have formed, the ruling of their Lordships of the Privy Council in which judgment was delivered upon the 26th February last--Simbhunath Panday v. Golab Singh, L. E., 14 I. A., 77; I. L. E., 14 Cal., 572. As I understand it, the position in which the law now stands is this, that if a party who is in possession of property which originally belonged to the members of a joint family, of whom the father was one, can only produce as his document of title a sale-certificate showing that he bought, in the execution of a money-decree against the father only, the right, title and interest of the father, then he has bought no more than that interest, and he is liable to be compelled to restore to the other joint members of the family their interest which had not, upon the face of the sale-certificate, passed by the sale. On this their Lordships observe: 'It appears to their Lordships that in all the cases--at least the recent cases--the inquiry has been what the parties contracted about, if there was a conveyance, or what the purchaser had reason to think he was buying, if there was no conveyance, but only a sale in execution of a money-decree.

Their Lordships are sorry that they cannot follow the learned Judges of the High Court into their examination of the vernacular petition. But they find quite enough ground in the decree to express a clear agreement with them. They conceive that when a man conveys his right and interest and nothing more, he does not, prima facie, intend to convey away also rights and interest presently vested in others, even though the law may give him the power to do so. Nor do they think that a purchaser who is bargaining for the entire family estate, would be satisfied with a document purporting to convey only the right and interest of the father. It is true that the language of the certificate is influenced by that of the Procedure Code; but it is the instrument which confers title on the purchaser. Its language, like that of the certificate in Hurdey Narain's case, is calculated to express only the personal interest of Lachman. It exactly accords with the expressions used in the decree of, August 1869, founded on Lachman's own vernacular expressions, which the High Court construe as pointing to his personal interest alone. The other circumstances of the case aid the prima facae conclusion instead of counteracting it. For the creditor took no steps to bind the other members of the family, and the Rs. 625 which, he got for his purchase appears to be nearer the value of one-sixth than of the entirety.

4. These observations are very explicit, and indeed only state what, as far as I am aware, has always been understood to be the legal rule of interpretation both as to sale-certificates and other documents which profess to pass particular interests. There is no specific value to be attached to the language of a sale-certificate in preference to the meaning to be attached to any other document which conveys property to the purchasers. Indeed, the facts of this case are applicable to that before us; and taking that case and applying it, I can come to no other conclusion by the reasoning their Lordships adopted in reference to those facts, than that upon the terms of the sale-certificate, which was given as document of title, nothing more passed to the defendants than the right, title and interest of the father. That being so, the plaintiffs were undoubtedly entitled, if they were not barred by limitation, which is not suggested, to maintain the present suit; and though they have delayed about coming into Court, it may have been that this was for want of funds, or because, as they thought, there were conflicting decisions on the point.

5. The only remaining question to be determined is whether the form of the decree is open to objection. It does not appear to me that it is; both according to the ruling in Deendyal v. Jugdeep Narain Singh, L. R., 4.1. A., 247; I. L. E., 3 Cal., 198, and of Hurdey Narain Sahu v. Ruder Perkash Misser, L. R., 11 I. A., 26; I. L. R., 10 Cal., 626, the terms in which the decree has been prepared are strictly accurate. The plaintiffs have been declared entitled to the possession of the whole share, subject to a declaration that the defendants as the auction-purchasers of the right, title and interest of Akbar Singh, may come in and claim a partition of that share out of the joint property. That being so, this appeal fails, and is dismissed with costs.

Mahmood, J

6. I am of the same opinion, but wish to add, as my reasons for concurring in the conclusion at which my brother STRAIGHT has arrived, that the decree of the 24th December 1868, which resulted in the auction-sale of 1873, was a simple money-decree passed only against the father of the present plaintiffs for a liability which, from the proceedings before us, appears to have been an immoral one, because it was in consequence of a breach of warrant in a mortgage-deed of 1863 that the decree was passed. To the decree-itself the present plaintiffs were no parties, because they were not imp leaded in the suit which resulted in that decree. But irrespective of this, the debt for which the decree was passed cannot be taken to be a debt borrowed for the purposes of the joint family, because it arose out of an action for damages in consequence of an infringement of a covenant in the mortgage-deed of 1863. To such a debt no Hindu son is liable, because such a debt is immoral, within the meaning of Hindu law.

7. The next question is, what did the present defendants, as a matter of fact, purchase in the execution sale of 1873? My learned brother has referred to the rule of Hindu law which is enunciated by their Lordships of the Privy Council, and which governs such cases. But in addition to what he has mentioned, I may observe that, from the admitted facts of this case, there can be no doubt that the present defendants purchased the property knowing full well that they were purchasing nothing more than the share of Akbar Singh. It is found and admitted that the annual revenue payable by this property closely approximates to Rs. 400 per annum, and taking the profits as equal to the Government Revenue, the market-value of the property would be about Rs. 6,000, calculating it at fifteen years' purchase, while the price paid by the defendants was very much less.

8. From these facts I deduce these conclusions: First, that the decree of the 24th December 1868, was a personal decree, passed against the father of the present plaintiffs, for a liability which was immoral; secondly, that the decree was never .intended to render the sons liable-thereto; thirdly, that the sale, which took place in consequence of that decree in 1873, was a sale-professing to convey neither more, nor less than the right, title and interest of the judgment-debtor, the father; fourthly, that the present defendants-appellants purchased the property at that sale, knowing full well that they were purchasing the right, title and interest of the father, and no more.

9. As to the other point, whether the form of the decree was right in decreeing possession of the whole, I need only read out the following from the judgment of their Lordships of the Privy Council: 'According to the judgment of their Lordships in Deendyal's case, the decree which ought properly to have been made, would have been that the plaintiff, the first respondent, should recover possession of the whole of the property, with a declaration that the appellant, as purchaser at the execution sale, had acquired the share and interest of Shib Perkash Misser, and was entitled to take proceedings to have it ascertained by partition.'--Hurdey Narain Sahu v. Ruder Perkash Misser, L. R., 11 I. A. 26; I. L. R., 10 Gal., 637. I concur in dismissing the appeal with costs.


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