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Nawal Kishore Vs. Sarju and anr. - Court Judgment

LegalCrystal Citation
Subject Property
CourtAllahabad
Decided On
Reported inAIR1932All546
AppellantNawal Kishore
RespondentSarju and anr.
Excerpt:
.....and for some reasons best known to him defendant 2, the father of defendant had obtained the sale deed from the pandes of narharia in favour of his son, defendant 1. later on the plaint was amended and it stood as if both the defendants had made the purchase, the sale deed being executed in favour of only one of the defendants. as regards the damages, the plaintiff stated in the plaint that the costs of the application for leave to appeal made in this court and the costs of the application to his majesty in council for special leave to appeal had been incurred at the instance of babu jugal kishore who had agreed to meet all the expenses if the applications proved unsuccessful. on the other hand there are two clearly applicable cases which go entirely against the appellant. the..........and for some reasons best known to him defendant 2, the father of defendant had obtained the sale deed from the pandes of narharia in favour of his son, defendant 1. later on the plaint was amended and it stood as if both the defendants had made the purchase, the sale deed being executed in favour of only one of the defendants. after this amendment of the plaint, the defendants filed their written statements. defendant 1, mr. nawal kishore, said that he was only a benamidar and he was not liable on account of any claim for damages and was not liable to refund any part of the purchase money. defendant 2, the father, said that he was not an executant of the sale deed and therefore he was not liable. it was admitted by both the defendants that the father and son were members of a.....
Judgment:

Mukerji, J.

1. This is an appeal by the two defendants in the suit. The appeal although filed jointly, has been argued separately on behalf of the two appellants. The reasons will be apparent from the facts of the case which are as follows. The Raja of Basti owned the property in suit. It was eventually purchased by certain gentlemen known as the Pandes of Narharia in the district of Basti. An eight annas share in the village of Bhatendwa was sold by the said Pandes to Babu Nawal Kishore, appellant 1, for a sum of Rs. 6,000. The entire sum was left with the vendee for payment to certain mortgagees who were in possession. This was on 10th March 1914. Defendant 1 sold the property to the plaintiff on 31st August 1915 for a sum of Rupees 15,000. Out of this consideration money a sum of Rs. 9,000 was paid in cash to appellant 1 and Rs. 6,000 was left with the vendee for payment to the mortgagees who were duly paid. After this the sons of the Pandes of Narharia brought a suit against Sarju Ram Sahu, the plaintiff respondent in this case and Mr. Nawal Kishore, appellant 1, to recover the entire eight annas share on the ground that the family of the then plaintiffs and the vendors was a joint one and the vendors had no right to transfer the family property. The suit succeeded to the extent of seven annas eight pies share out of the entire eight annas share sold. Sarju Ram Sahu filed an appeal to the High Court but the appeal we, dismissed. Thereupon Sarju Ram filed an application to this Court for leave to appeal to the Privy Council. This was rejected and then he applied to their Lordships of the Judicial Committee for special leave to appeal. This application was also dismissed. Thereupon the plaintiff filed the suit out of which this appeal has arisen. In the plaint as originally filed the plaintiff stated that the defendants were members of a joint Hindu family and for some reasons best known to him defendant 2, the father of defendant had obtained the sale deed from the Pandes of Narharia in favour of his son, defendant 1. Later on the plaint was amended and it stood as if both the defendants had made the purchase, the sale deed being executed in favour of only one of the defendants. After this amendment of the plaint, the defendants filed their written statements. Defendant 1, Mr. Nawal Kishore, said that he was only a benamidar and he was not liable on account of any claim for damages and was not liable to refund any part of the purchase money. Defendant 2, the father, said that he was not an executant of the sale deed and therefore he was not liable. It was admitted by both the defendants that the father and son were members of a joint Hindu family. As regards the damages, the plaintiff stated in the plaint that the costs of the application for leave to appeal made in this Court and the costs of the application to His Majesty in Council for special leave to appeal had been incurred at the instance of Babu Jugal Kishore who had agreed to meet all the expenses if the applications proved unsuccessful.

2. The learned Subordinate Judge framed ?several issues and he held that the defendants being members of a joint Hindu family were both liable and that the plaintiff was entitled to recover a proportionate part of the purchase money paid by him and the costs incurred by him in his litigation with the sons of the Pandes of Narharia. He disallowed the amounts spent by the plaintiff in his applications for leave to appeal in India and in England. The defendants have filed this appeal and the plaintiff has filed a cross-objection in respect of the portion of the damages disallowed by the Court below. The appeal on behalf of appellant 2, Babu Jugal Kishore, has been argued by Mr. Upadhia and the appeal of Mr. Nawal Kishore, appellant 1, has been ?argued by himself. The argument on behalf of appellant 2 was that the sale deed did not contain any covnnant to indemnify the plaintiff and that in any case, all the important facts relating to the property had been mentioned in the sale deed and therefore the plaintiff having ?purchased with his eyes open was not entitled to recover any damages.

3. The sale deed has been read out to us. We do not find in it any statement of the fact that the Pandes of Narharia had sons who were members of a joint Hindu family with them. This was an important fact which Sarju Ram might have been told for his benefit. But the matter does not really stand on such a narrow ground. It is true that the sale deed in question does not contain any statement to the effect that the vendor was assuring the vendee that his title subsists. But by application of Section 55, Sub-section (2), there is an implied contract on the part of the vendor that his title subsists.

4. Some cases have been cited to us on behalf of Babu Jugal Kishore and these are Kulla Mal v. Umra [1921] 61 I.C. 604, Ramashubbu Iyar v. Muthiah Kone : AIR1925Mad968 and Kali Din v. Madho A.I.R. 1923 All. 169. The first two cases are single Judge judgments and do not really cover the point in question. In the first case the transfer was of an occupancy holding which was not transferable under the law. In the second case what the Court considered was Section 55 Sub-section (1), Clause (a) and not Section 55, Sub-section (2). In the last mentioned case the observation of Stuart, J., of this Court do not touch the point in question. On the other hand there are two clearly applicable cases which go entirely against the appellant. These are Ram Chandra Dutt v. Dwarka Nath Bysack [1889] 16 Cal. 330 and Muhammad Ibrahim v. Nakohed Ram [1910] 6 I.C. 890. In both these cases it was held that unless the vendor's liability as imposed by Section 55, Sub-section (2), was excluded by express covenant, his liability would be deemed to subsist, notwithstanding the fact that the vendee may have some idea as to the defect in the title of the vendor. In the Calcutta case it was stated that the vendee was entitled to rely on the assurance of title on the part of the vendor although he himself may have had some doubt as to it. We are of opinion that the view taken in Calcutta and in this Court quoted above is the correct view. The liability of the vendor clearly exists.

5. The next point that was urged was that the liability was of the vendor Babu Nawal Kishore, appellant 1, and not of Babu Jugal Kishore. We shall consider this point when we consider the liability of appellant 1 himself. Now we take up the case of appellant 1. His case was that he was only a benamidar for his father and he was not liable. Now what are the facts that we find established? We find that the father and son, the appellants, formed a joint Hindu family. We find that the son purchased a pro-party. We find that the father approached the plaintiff : see the evidence of the plaintiff, and proposed that he should purchase the property. Babu Jugal Kishore who is a practising pleader was the legal adviser of Sarju Ram in his cases. When the price was ultimately settled at Rs. 15,000 both the appellants arrived at Basti and appellant 1 executed the sale deed. The sum of Rs. 9,000 was handed over to Babu Nawal Kishore as the vendee. This fact he admits, but he nowhere says that he handed over the money to his father, he himself being a benamidar and, as such, having nothing to do with the money. All these facts stand unrebutted. None of the appellants entered into the witness-box to state that the facts were different from what have been deposed to. On the facts before us we have no hesitation in coming to the conclusion that the purchase was made by the joint family in the name of the junior member of the family; that the sale was on behalf of the family; and that the sale deed had to be executed by the junior member for the simple reason that the sale deed executed by the Pandes of Narharia stcod in his favour. On these findings there is no question of a benamidar coming on the scene. We hold with the Court below that both the defendants are liable.

6. In the view of the facts that we take it is not necessary to consider what would be the liability, if any, of a man who is a pure benamidar and not a member of a joint family interested in the property and transferring the same as such. The result is that the appeal fails and we hereby dismiss it with costs. As regards the cross-objection, we have already mentioned that it is for the costs incurred in the two applications for leave to appeal, and sought to be recovered on the allegation that Babu Jugal Rishore promised to recoup them. It has been conceded before us by the learned Counsel on behalf of the plaintiff that he could not base his claim on the ground that he was entitled to damages for loss of property at the instance of the sons of the Pandea of Narharia. We find it difficult to decree the claim for no less than Rs. 1,800 odd on the mere statement of the munim of the plaintiff that he approached Babu Jugal Kishore and got an assurance from him that he would recoup the costs if the applications proved unsuccessful. There is a contradiction on this point between the plaintiff and his munim. The plaintiff said that when his munim returned after a visit to the defendants, he (the munim) told him (the plaintiff) that both the father and son had agreed to recoup the plaintiff his costs. The munim says that it was Babu Jugal Kishore alone who gave the assurance. It would certainly have been wise on the part of the plaintiff to obtain some assurance in writing from Babu Jugal Kishore that he was going to repay the costs of the applications for leave to appeal if the applications wore to prove unsuccessful. For the foregoing reasons, we hold that the cross-objection cannot succeed and we dismiss it also with coats.


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