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Joti Bhushan Gupta Vs. B.N. Sarkar Through S.N. Mittra, Manager - Court Judgment

LegalCrystal Citation
Subject Family
CourtAllahabad
Decided On
Reported inAIR1945All311
AppellantJoti Bhushan Gupta
RespondentB.N. Sarkar Through S.N. Mittra, Manager
Excerpt:
- - the plaintiff-appellant alleged that a few months after the death of raja sir moti chand, be clearly declared his intention to separate from babu gokul chand and, therefore, there was a disruption in the joint status of the family. the fact remains and it is admitted that on 15th april 1936, the plaintiff, appellant gave a registered notice to babu gokul chand clearly declaring his intention to separate and asking for a partition of the joint family property. it was clearly stated in the notice that if b. 11 of the written statement he clearly said: that from the beginning all rent falling due as well as 10 per cent, on the sale of tickets were paid to babu gokul chand through duly appointed representative, one mr. sarkar that the suit was defectively framed, inasmuch as the.....mulla, j.1. these are two second appeals which arise out of two separate suits brought by joti bhushan gupta, the appellant in both appeals, to recover his share of the rent of a theatre hall known as the lakshmi theatre hall or the 'chitra' situated at benares. the first suit, (no. 178 of 1937), which has given rise to appeal no. 1536 of 1939, was filed on 7th may 1937, and it related to the period between 1st september 1936 to 30th april 1937. the second suit (no. 485 of 1937) which has given rise to appeal no. 1515 of 1939, related to the period between 1st may 1937, and 31st october 1937. b. n. sarkar, the respondent in both appeals, was the principal defendant common to both suits. in the second suit, however, one s. n. mittra was also impleaded as a defendant. for the purposes of.....
Judgment:

Mulla, J.

1. These are two second appeals which arise out of two separate suits brought by Joti Bhushan Gupta, the appellant in both appeals, to recover his share of the rent of a theatre hall known as the Lakshmi Theatre Hall or the 'Chitra' situated at Benares. The first suit, (No. 178 of 1937), which has given rise to Appeal No. 1536 of 1939, was filed on 7th May 1937, and it related to the period between 1st September 1936 to 30th April 1937. The second suit (NO. 485 of 1937) which has given rise to Appeal No. 1515 of 1939, related to the period between 1st May 1937, and 31st October 1937. B. N. Sarkar, the respondent in both appeals, was the principal defendant common to both suits. In the second suit, however, one S. N. Mittra was also impleaded as a defendant. For the purposes of these appeals, however, we are not concerned with him any longer. The two suits raised the same questions of fact and law for consideration and they were accordingly consolidated with the consent of parties and were decided by the same judgment by the learned City Munsif of Benares who dismissed them both. Prom that decree Joti Bhushan Gupta filed two separate appeals in the Court of the learned District Judge of Benares who has dismissed them both by the same judgment, Joti Bhushan Gupta has now filed the two second appeals which we have to consider.

2. The plaintiff-appellant, Joti Bhushan Gupta is the son of one Babu Mangla Prasad who was one of three brothers constituting a joint Hindu family at Benares, the other two being Raja Sir Moti Chand and Babu Gokul Chand. It is admitted that Raja Sir Moti Chand was the manager and karta of the joint family up till his death on 16th March 1934. The plaintiff appellant's father, Babu Mangla Prasad, predeceased Raja Sir Moti Chand, so that at the latter's death the only two members of the joint family were the plaintiff-appellant and Babu Gokul Chand. In the year 1932, Raja Sir Moti Chand had admitted B. N. Sarkar as a lessee of the Lakshmi Theatre Hall at Benares. It was agreed that the leseee would pay Rs. 500 as the monthly rent for the Theatre Hall. One J. D. Shah appears to have been appointed as his representative by Raja Sir Moti Chand. It may be stated here that in both suits the plaintiff-appellant alleged that the lessee, besides being liable for the monthly rent of the Theatre Hall, had also agreed to pay ten per cent, of the daily sale proceeds of tickets and in each suit a further relief was claimed that the lessee should be asked to account for a certain period in order to determine the share of the plaintiff-appellant in the amount due on account of the daily sale proceeds of tickets. This relief has, however, not been pressed or even referred to in the course of the argument before us and it has, therefore, to be entirely ignored and the two suits have to be considered as if they were merely for the recovery of the plaintiff-appellant's share of the monthly rent which the lessee had agreed to pay for the Theatre Hall. The plaintiff-appellant alleged that a few months after the death of Raja Sir Moti Chand, be clearly declared his intention to separate from Babu Gokul Chand and, therefore, there was a disruption in the joint status of the family. This allegation of fact has not, however, been accepted by the Courts below and has not been pressed before us. Indeed, it is not material for the determination of the questions of law which arise for consideration in these appeals. The fact remains and it is admitted that on 15th April 1936, the plaintiff, appellant gave a registered notice to Babu Gokul Chand clearly declaring his intention to separate and asking for a partition of the joint family property. He followed up this notice with a suit for partition on 2nd June 1936. A very important fact for the purposes of these appeals, which is also admitted, is that on 13th March 1937, the plaintiff-appellant served a notice on B. N. Sarkar warning him not to pay anything to Babu Gokul Chand or any person claiming through him so as to affect the plaintiff, appellant's interests. It was clearly stated in the notice that if B. N. Sarkar made any payment to Babu Gokul Chand in spite of the notice given to him, he would do so at his own risk and responsibility. This notice was followed by the institution of the first suit giving rise to Second Appeal No. 1536 of 1939 on 7th May 1937. B. N. Sarkar, who was the only defendant in the suit, raised two pleas, one of fact and the other of law, with which alone we are concerned in these appeals. The former was that on 12th May 1937, he had paid off all the money due from him under the lease up to date to Babu Gokul Chand through his representative J. D. Shah. The latter was that the frame of the suit was defective, inasmuch as the plaintiff-appellant had sued for his share of the rent without making Babu Gokul Chand a party. It is not quite clear from the judgments of the Courts below whether this payment was made in cash or by means of a cheque in the name of Babu Gokul Chand. The fact, however, remains that in his written statement, dated 23rd June 1937, B. N. Sarkar repeatedly asserted that he had paid the whole amount to Babu Gokul Chand. Indeed, in para. 1 of his written statement he even denied knowledge of the fact that the plaintiff had any right, title or interest in the Theatre Hall as a co-owner with Babu Gokul Chand. In para. 11 of the written statement he clearly said:

That from the beginning all rent falling due as well as 10 per cent, on the sale of tickets were paid to Babu Gokul Chand through duly appointed representative, one Mr. J.D. Shah.

This allegation of the payment having been made to Babu Gokul Chand was repeated in paras. 12 and 14 of the written statement. It is necessary to lay stress on this point because it appears to have been entirely ignored by the Courts below who have discussed the case as if the payment had been made to J. D. Shah in his capacity as the representative of the family and not to Babu Gokul Chand. It is admitted that Babu Gokul Chand became the manager and karta of the family on the death of Raja Sir Moti Chand on 16th March 1934, and thereafter he wrote a letter on 2lst March 1934 to B. N. Sarkar in which he said:

Henceforth while paying the rent and other dues of Chitra please issue the cheque in my name, and Mr. J. D. Shah will work as my representative.

It has been stated above that Mr. J. D. Shah was appointed by Raja Sir Moti Chand as his representative in the year 1932. Any authority which Mr. J. D. Shah derived from that appointment by Raja Sir Moti Chand came to an end on the latter's death on 16th March 1934. J. D. Shah has been treated by the Courts below as the representative of the family apparently only because of his appointment by Babu Gokul Chand in his letter, dated 2lst March 1934. It seems to have been assumed by the Courts below that because J. D. Shah was appointed by Babu Gokul Chand as his representative he must be deemed to have been a representative of the family, inasmuch as Babu Gokul Chand, who had appointed him, was the manager and karta of the family. We do not, however, think that this conclusion necessarily follows from the appointment of J. D. Shah as his representative by Babu Gokul Chand. It will be noticed that in his letter, dated 2lst March 1934, Babu Gokul Chand directed B. N. Sarkar to issue cheques in his name and mentioned J. D. Shah as his representative. Even assuming for the purposes of argument that J. D. Shah was appointed as the representative of the family by Babu Gokul Chand who was the manager and karta, still the point remains-and it is a point which has been ignored by the Courts below-that the alleged payment by B. N. Sarkar of all the money due from him under the lease on 12th May 1937, was specifically made to Babu Gokul Chand and not to J. D. Shah as the representative of the family. It has also to be borne in mind that this payment was made long after the plaintiff-appellant had served a notice upon B. N. Sarkar warning him not to make any payment to Babu Gokul Chand or to any person claiming through him. The payment, whether in cash or by means of a cheque, even if it was made in fact to J. D. Shah, was on B.N. Sarkar's own clear pleading in his written statement made to Babu Gokul Chand. The mere fact that the money in cash or in the form of a cheque was handed over to J. D. Shah to be taken to Babu Gokul Chand does not alter the legal situation at all. The payment was a payment to Babu Gokul Chand and that was the clear case which B. N. Sarkar set up in his written statement. It is significant in this connexion to bear in mind that in para. 1 of his written statement B. N. Sarkar totally denied having any knowledge of the fact that the plaintiff-appellant had any right, title or interest in the Theatre Hall. There is absolutely no suggestion of any kind in the written statement of B. N. Sarkar that the payment was made for the benefit of the joint family of which Babu Gokul Chand was the manager and karta. In this connexion it is also necessary to refer to certain findings of fact arrived by the learned District Judge. On p. 29 of his judgment in the printed record before us the learned District Judge has found as follows:

There is no doubt, as will appear, from Exs. 6, 7, 8, 9 and the statement of Mr. S.N. Mitter that it was known to the respondents that there was a partition going on between the appellant and his uncle.

Again, on p. 35 of the judgment he states:

It is obvious from the documentary and other evidence in this case that Mr. B. N Sarkar and Mr. S.N. Mitter have taken up a position which has been definitely partial to Babu Gokul Chand and definitely against the appellant. There is no doubt that they knew after the death of Raja Sir Moti Chand that there was a partition suit going on between the appellant and Babu Gokul Chand and that the appellant was entitled to half the share. As lessees they should not have sided with one side or the other. In this case, I am definitely of opinion that both Mr. B. N. Sarkar and Mr. S.N. Mitter were apparently siding with Babu Gokul Chand.

In spite of these findings, the learned District Judge arrived at the conclusion that the payment by B. N. Sarkar on 12th May 1987, which according to him had been proved by the evidence on the record, was a payment to J. D. Shah in his capacity as the representative of the family and, therefore, gave B. N. Sarkar a valid discharge in respect of the whole of his liability both to Babu Gokul Chand and the plaintiff appellant. As regards the plea of law raised by B. N. Sarkar that the suit was defectively framed, inasmuch as the plaintiff-appellant had sued for his share of the rent without making Babu Gokul Chand a party, both the Courts below have arrived at the conclusion that this plea must prevail on the general principle that one co-lessor cannot maintain a suit against the lessee for his share of the rent alone. On these findings both suits have been dismissed and Joti Bhushan Gupta has come up in appeal to this Court.

3. The first question for consideration is: 'Whether the payment by B. N. Sarkar on 12th May 1937, gave him a valid discharge in respect of the whole of his liability both to Babu Gokul Chand and the plaintiff-appellant? As stated above, the Courts below have proceeded on the assumption that the payment was in fact made to J. D. Shah as the representative of the joint family. They have held that as the plaintiff-appellant did not specifically repudiate the authority of J. D. Shah to act as the representative of the family in the notice which he served on B. N. Sarkar on 13th March 1987, the payment made by B. N. Sarkar to J. D. Shah must be held to be a good payment discharging B. N. Sarkar of the whole of his liability. With this view of the legal position of the parties we are entirely unable to agree. Upon the admitted facts of the case, namely, that a registered notice was given by the plaintiff-appellant to Babu Gokul Chand on 15th April 1936, declaring his intention to separate and asking for a partition of the joint family property and this notice was actually followed by a suit for partition on 2nd June 1936, it is perfectly clear that a disruption had taken place in the status of the family and on 12th May 1987, Babu Gokul Chand was not and could not be the manager and karta of the joint family and could not possibly represent the plaintiff-appellant, so that any payment made to him on that date could not have been made in his capacity as the manager and karta of the family. Added to this is the fact that B. N. Sarkar and S. N. Mittra who was one of the two defendants in the second suit were both aware of the pendency of the partition suit between Babu Gokul Chand and the plaintiff-appellant and the latter had actually served a notice on B. N. Sarkar on 13th March 1937, telling him that if he made any payment to Babu Gokul Chand or any person claiming through him he would do so at his own risk and responsibility. In our judgment the terms in which this notice was couched were clear enough to indicate to B. N. Sarkar that Babu Gokul Chand was not the manager or karta of the family and to put him on his guard against making any payment to Babu Gokul Chand so as to affect the interests of the plaintiff-appellant. We do not think that it was necessary at all for the plaintiff to state in the notice that he did not recognize J. D. Shah as the representative of the family. We have again the definite finding of the learned District Judge relating to the attitude taken up by B. N. Sarkar and S. N. Mittra in their relation to Babu Gokul Chand from which it necessarily follows that they were colluding with him. Having regard to these facts, we think, it necessarily follows that the payment by B. N. Sarkar to Babu Gokul Chand could not give him a valid discharge of his liability so far as the plaintiff-appellant is concerned.

4. The learned Counsel for the plaintiff-appellant strenuously argued that payment to one cosharer cannot in any case bind the other cosharers and he referred to a number of cases in support of that contention. On behalf of the respondent our attention was drawn to some cases in which an opposite view had been taken. There is no doubt some conflict on this point and the case-law has been reviewed and considered in Pollock and Mulla's Contract Act, 7th Edn., on pp. 258 to 260. The learned commentator has shown upon a review of the decided cases that the balance of authority is overwhelmingly in favour of the proposition that payment by the debtor to one of several joint creditors does not operate as a payment to them all, and particularly so in a case where the payment is not bona fide and is either collusive or fraudulent. Indeed, it appears that of all the High Courts in India the Madras High Court stands alone in holding the opposite view which was first taken in Barber Maran v. Ramana Goundan ('97) 20 Mad. 461 and was subsequently affirmed by a Full Bench of that Court in Annapurnamma v. Akkayya ('13) 36 Mad. 544. Learned Counsel for the respondent had to concede that there are several decisions of this Court, the last one being in Shyam Lal v. Jagannath 0043/1937 : AIR1937All527 which support the appellant's contention. We are in agreement with that view, but we need not enter into any detailed discussions of the authorities because we find that there is absolute unanimity on the proposition that a payment made to one of several co-creditors can never operate as a valid discharge in respect of the debtor's liability to the other co-creditors if it is not bona fide and is either collusive or fraudulent. In the case before us, there cannot be the slightest doubt that the payment made by B. N. Sarkar on 12th May 1937, cannot possibly be said to be a bona fide payment and upon the finding of the learned District Judge referred to above it is further clear that it was a collusive payment. Such a payment can never give a valid discharge to the debtor in respect of the whole of his liability. Even the Madras High Court is agreed on this point: see Chockalingam Chetty v. Periya Karuppan Chetty ('16) 3 A.I.R. 1916 Mad. 208 and Sheik Ibrahim Tharagan v. Rama Aiyar ('123) 35 Mad. 685. The same view has been taken by the Bombay High Court in Gendal Raju v. Maganlal Chhaganlal ('28) 15 A.I.R. 1928 Bom. 420. This Court has supported the same view in 33 ALL. 308. It is not necessary to multiply authorities) on the point which appears to be well settled in all the Courts in India. We have, therefore, no hesitation in holding that the payment by B. N. Sarkar to Babu Gokul Chand on 12th May 1937, cannot operate as a valid discharge of his liability under the lease to the plaintiff-appellant.

5. We now come to consider the next point which arises out of the plea of law raised by B. N. Sarkar and which has been allowed to prevail by both the Courts below, namely, whether the suit as framed by the plaintiff-appellant for his share of the rent was maintainable. Learned Counsel for the appellant had to concede that there was a uniform current of authority in all the Courts in India which supports the principle that where there is a joint lease, one of the co-lessors cannot maintain a separate suit against the lessee for his share of rent. Indeed, he could not but do so in view of the pronouncement of their Lordships of the Privy Council in Baraboni Coal Concern, Ltd. v. Gokulananda Mohanta Thakur . Their Lordships had to consider the case of a lease given by four she baits holding property dedicated to a family idol and a suit brought by only one of them for his proportionate share of the amount due under the lease. After pointing out that it was not possible in law for the plaintiff to split up the property of the family deity in the manner in which he had tried to do so, their Lordships proceeded to observe as follows:

Apart from that, however, the lease discloses, in their Lordships' opinion, a joint demise or contract. That being so, in their Lordships' judgment, no one of the four lessors, with or without the consent of his co-lessors, can sue for an aliquot part of the whole. The suit must be for the whole of the interest demised, else it fails. This is not the ease, which is familiar, where one joint contractor has invited his co-contractors to join with him in a suit, where they have refused to do so, and where accordingly he joins them as pro forma defendants.

6. There can be no doubt, therefore, that the suit as framed by the plaintiff-appellant was defective in law. Learned Counsel for the plaintiff appellant has, however, strenuously argued that the principle laid down by their Lordships cannot apply to the present case in 5'. ('12) 35 Mad 685 : 10 I.C. 874, Sheik Ibrahim Tharagan v. Rama Aiyar view of the admitted fact that a collusive payment of the whole amount due under the lease was made by B. N. Sarkar to Babu Gokul Chand which has only the effect of discharging the lessee's liability to Babu Gokul Chand and cannot operate as a discharge of his liability to the plaintiff-appellant. It is contended that in the present case it must be held that the amount due to Babu Gokul Chand under the lease has been discharged while the share of the plaintiff-appellant remains unpaid, and in these circumstances the plaintiff was entitled to bring a separate suit for the realization of his share. This contention is strongly supported by a decision of this Court in Murlidha7'v.'ishri Prasad ('84) 6 All. 576. In that case one of two joint lessors of certain land brought a suit for his separate share of the rent due alleging that the share due to the other co-lessor had already been paid and it was held that such a suit was not affected by the principle that one of several co-lessors cannot maintain a separate suit for his share of the rent due from the lessee. We think the appellant's contention is sound and the general rule upon which the Courts below have based their decision dismissing the plaintiff-appellant's first suit does not apply to the admitted facts before us. Upon the admission made by B. N. Sarkar that the whole amount due under the lease had been paid by him to Babu Gokul Chand it is clearly open to the plaintiff-appellant to contend that the payment in question only operated as a discharge of B. N. Sarkar's liability to Babu Gokul Chand and hence it must be deemed in law that all that remained due under the lease was the share of the plaintiff-appellant and he was entitled to maintain a separate suit for that share. In view of the admitted facts, it was not open to him to bring a suit for the whole amount due under the lease. We do not find that there is anything in law to prevent the plaintiff-appellant from maintaining a separate suit for his share of the rent in these circumstances. The general rule upon which the Courts below have relied has in our judgment no application to the facts of the case before us. We hold, therefore, that in the circumstances of the present case the plaintiff could maintain his first suit for his separate share of the rent due under the lease. We find from the judgment of the learned District Judge that he was also impressed by the contention of the plaintiff-appellant and would have been inclined to give him an appropriate relief so far as the first suit was concerned, but he found that there was a technical difficulty in his way, namely, that the first suit had been brought on 7th May 1937, that is, before the payment by B. N. Sarkar to Babu Gokul Chand. He has, therefore, dismissed the first suit on the ground that it was not maintainable on the date on which it was instituted, inasmuch as up till that date no collusive payment had been made by B.N. Sarkar to Babu Gokul Chand.

7. This brings us to a consideration of the only other question that remains for decision in the appeals before us, namely, whether it was open to the Court to take into account the admitted fact revealed by the written statement filed by B. N. Sarkar which was subsequently found to be established by evidence and to give a decree to the plaintiff-appellant on that basis? It is no doubt settled as a general rule of law that the Court cannot take into consideration any facts which come into existence subsequent to the institution of the suit, but it is equally well settled that in certain cases where the Court feels that in order to shorten litigation and to subserve the ends of justice between the parties it is necessary to consider such facts it can certainly do so. Learned Counsel for the plaintiff appellant has referred us to the following cases in support of the view that in order to do substantial justice between the parties the Court may take into consideration facts which come into existence subsequent to the institution of the suit or even subsequent to its decision : Ram Ratan Sahu v. Bishun Chand : AIR1925Mad63 ; Thimmayya v. Siddappa : AIR1925Mad63 ; Labhu Ram v. Charnu Fauju ('29) 16 A.I.R. 1929 Lah. 409, Chinta Hararan v. Radha Charan ('17) 4 A.I.R. 1917 Cal. 822 and Yaradarajulu Naidu v. Rajamanika Mudaliar ('37) 24 A.I Rule 1937 Mad. 767. These are undoubtedly clear authorities in support of the appellant's contention.

8. In Yaradarajulu Naidu v. Rajamanika Mudaliar ('37) 24 A.I Rule 1937 Mad. 767 it was held that where a suit was instituted by a firm for recovery of debt due to it at a time when the firm was unregistered and subsequently during the pendency of the suit the firm was registered, the Court can, in order to do substantial justice between the parties, take notice of the subsequent fact of registration and treat the suit as validly instituted on the date of registration. In Chinta Hararan v. Radha Charan ('17) 4 A.I.R. 1917 Cal. 822 it was held that a plaintiff was entitled to a decree for khas possession of a land on declaration of title in a suit brought for the purpose, where it is found that the defendant was holding the land under an ijara lease subsisting at the time of the institution of the suit but which expired before the date of the decree. In Labhu Ram v. Charnu Fauju ('29) 16 A.I.R. 1929 Lah. 409 it was found that the plaintiff's suit was premature and that he had no cause of action at the date of the suit but he was given a decree upon a different cause of action and it was held that 'there is ample authority, however, that, where a cause of action arises only after the suit has been instituted, still the suit may be decreed in certain circumstances.'

In Thimmayya v. Siddappa : AIR1925Mad63 the plaintiff had no right of suit at the date of institution but he acquired the right through inheritance opening in his favour alter the filing of the suit but before its disposal and it was held that the right of suit could be recognized even without formal amendment. In Ram Ratan Sahu v. Bishun Chand ('07) 11 C. W. N. 732,10 the appellate Court took into consideration certain facts which had come into existence after the decision of the trial Court and allowed the plaintiff to amend his plaint and gave him a decree on that basis. Learned Counsel for the respondent referred us on the other hand to the following eases : Buys v. Royal Exchange Assurance Corporation (1897) 2 Q. B. 135, Lalloo Prasad Singh v. Lachman Singh ('24) 11 A.I.R. 1924 Pat. 438; Suraj Pal Singh v. Ramjit : AIR1929All341 , Ramanandan Chetti v. Pulilsutti Servai ('98) 21 Mad. 288 and Kali Kumar v. Ananda Chandra ('28) 108 I.C. 589 (Cal.). On the authority of these eases, learned Counsel for the respondent argued that it is only where some relief can be given to the plaintiff on the basis of the suit as framed by him but in view of subsequent events that relief is rendered inappropriate that the Court can take into account these facts for granting appropriate relief; but if there is no cause of action and the suit is not maintainable at the date of institution it cannot be maintained on the basis of facts which came into existence subsequent to its institution. We have carefully considered these cases, but we find that they recognize the existence of the rule that in certain cases the Court can take into account facts which come into existence subsequent to the institution of the suit, though it appears that in these cases the Court was not prepared upon the facts before it to apply that rule. The contention of learned Counsel for the respondent that in this case the plaintiff had no cause of action is not sound in our judgment. The cause of action for the suit was the failure of the lessee to pay the rent due under the lease. Objections could no doubt be taken to the frame of the suit, but it could not be maintained that there was no cause of action for it. When the written statement was filed on behalf of B. N. Sarkar and it was admitted therein that the whole rent due under the lease had been paid to Babu Gokul Chand, it was open to the plaintiff-appellant to apply for an amendment of his plaint and to put forward the case that the payment of the whole rent to Babu Gokul Chand in the circumstances of the case did not operate as a valid discharge of the lessee's liability so for as the plaintiff-appellant was concerned and hence the latter was entitled to bring a separate suit for his share of the rent. Indeed, he could have claimed the very relief which he had originally claimed though on the basis of a fact admitted in the written statement filed by B. N. Sarkar. There was nothing in our judgment to prevent the Court from allowing the plaint to be amended, for it could not be said that the nature of the suit was being radically changed by the amendment. Indeed, from the eases to which we have referred it is evident that even formal amendment was not necessary and the Court could have taken into account the admitted fact that a collusive payment of the whole rent due under the lease, had been made by B. N. Sarkar to Babu Gokul Chand and could have given relief to the plaintiff-appellant on that basis. The mere fact that there was a technical difficulty in the way of the Court, inasmuch as the suit had been instituted on 7th May 1937, that is, a few days prior to the payment in question, should not have prevented the Court from doing substantial justice between the parties. It is sufficient in this connexion to repeat the memorable words of Lord Penzance in Henry J. B. Kendall v. Peter Hamilton (1878-79) 4 A.C. 504 on page 525 of the report:

Procedure is but the machinery of the law after all-the channel and means whereby law is administered and justice reached. It strangely departs from its proper office when, in place of facilitating, it is permitted to obstruct, and even extinguish, legal rights, and is thus made to govern where it ought to subserve.

The learned District Judge seemed to be of the opinion that the plaintiff-appellant could have sought relief in the partition suit in respect of the matter which is in dispute in the present case, but he appears to have ignored the fact that at the period to which the suit related the joint family status had ceased to exist and the payment having been made to Babu Gokul Chand could not be brought into the hotchpot for the purposes of partition. We are, therefore, of the opinion that in the circumstances of the case before us the technical difficulty should not be allowed to prevent us from giving relief to the plaintiff-appellant to which he is clearly entitled. This finding will, however, affect only the first suit, for, the payment made by B.N. Sarkar to Babu Gokul Chand only related to the period covered by that suit. As regards the second suit which was instituted by the plaintiff, appellant on 11th November 1937, the argument still remains that it is not maintainable in law, inasmuch as in this case there is no allegation or admission Chat the share of Babu Gokul Chand has already been paid to him by the lessee in respect of the period covered by this suit or that any collusive payment for the whole of that period has been made to him by the lessee. The general rule, therefore, that one co-lessor cannot maintain a separate suit for his share of the rent against the lessee must prevail so far as this second suit is concerned. The result, therefore, is that we allow second Appeal NO. 1536 of 1939 and setting aside the decree passed by the Court below decree Suit No. 178 of 1987 in favour of the plaintiff-appellant in respect of the first relief only with proportionate costs throughout. Second Appeal No. 1515 of 1939 is dismissed with costs.


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