1. This is a plaintiff's appeal arising out of a suit for a declaration that the defendant had no interest in the village of Nurpur and for damages on account of breach of contract. Shyam Lal plaintiff, was the owner of some zamindari in two villages, Dewaichi and Nurpur, Both these properties were put up for sale in execution of a decree and Budh Sen, defendant, purchased them at auction for Rs. 21,000. The decree for which execution had been taken out was for Rs. 19,968 and thus there was a balance of Rs. 1032 in the hands of the defendant. The sale was confirmed on 25th July 1926 but before its confirmation, i.e., on 14th July 1926, the plaintiff and the defendant entered into an agreement. The terms of that agreement were that the property in Nurpur was to be re-transferred by a deed of exchange to the plaintiff and the defendant was to keep the property at Dewaichi. The plaintiff was also to give up 3 or 4 groves and a house and he also agreed to relinquish his ex-proprietary rights in the village of Dewaichi.
2. The Court of first instance decreed the plaintiff's suit for declaration and also for recovery of damages in the amount of Rs. 799-5-3. The lower appellate Court has allowed the appeal and has dismissed the suit on two grounds. One of those grounds apparently is that the suit ought to have been one for specific performance of contract and the other ground was that the transfer of ex-proprietary rights was illegal. Counsel for the plaintiff-appellant pleads that the view taken by the Court below as regards the illegality of the transfer of ex-proprietary rights is wrong.
3. This case is governed by the Tenancy Act of 1901, and not by the Tenancy Act of 1926. Other things being equal and in the absence of special circumstances, the relinquishment of ex-proprietary rights was not under the Act of 1901 illegal. A Bench of this Court in Lekhraj v. Parshadi (1909) 2 I.C. 409 held that:
Upon the sale of the zamindari the vendor becomes an ex-proprietary tenant in respect of his sir land, and he is competent to surrender his holdings in favour of the vendee. Upon such surrender his rights as an ex-proprietary tenant determine, and if he subsequently dispossesses the vendee landlord, the latter is entitled to be put back into possession.
4. In the case of Mir Dad Khan v. Ramzan Khan 1918 All. 86, it was held that:
If a covenant to relinquish the sir lands is part of a transaction of sale or of mortgage, then the agreement to surrender will be void and unenforceable, no matter what ingenious devices may be employed to give colour to it. If a Court is satisfied that there was first of all a transferor by way of sale or mortgage and that the transferor, having obtained the status of an ex-proprietary tenant, with full knowledge of that fact and of the rights preserved to him by statute, deliberately chooses as a separate transaction, to relinquish his ex-proprietary tenancy into the hands of the new proprietor, or of the mortgagee in possession, the law cannot protect a reckless and imprudent man against the consequences of his own acts.
5. Counsel for the defendant-respondent has referred us to the Privy Council case of Motichand v. Ikramullah Khan 1916 P.C. 59. In that case their Lordships of the Privy Council held that:
An agreement by the defendant for relinquishment of all their 'sir' and 'khudkasht' lands, and ex-proprietary rights therein to the plaintiffs, none of whom was at the execution of the agreement proprietor and landholder or co-sharer in the lands to be relinquished, and agreeing to pay damages for any breach of the contract by them, is illegal and void as being in contravention of the policy of Act 2 of 1901.
6. That was a suit by the transferee to enforce the ex-proprietor's agreement to give up his ex-proprietary rights. The present suit on the other hand has been brought by the person who was transferring his zamindari property and is therefore distinguishable both on fact and in principle from the Privy Council case. The latter case does not lay down that the relinquishment of ex-proprietary rights is per se illegal; what it lays down is that devices to frustrate the Act and prevent the creation of ex-proprietary rights are in contravention of the policy of the Act and as such, are illegal and [void. In the present case there was a bargain between the parties for their mutual advantage whereby it was agreed that after confirmation of the sale the plaintiff should for consideration give up his ex-proprietary rights. In our opinion there was nothing in the contract which militated against the spirit of the Tenancy Act and we hold that there was no illegality in the relinquishment by the plaintiff of his ex-proprietary rights.
7. Counsel for the defendant-respondent contends that the plaintiff's suit must fail on the ground that he has not carried out his part of the contract, inasmuch as the numbers of the plots in respect of which he has transferred his ex-proprietary rights do not correspond with the numbers shown in the agreement of 14th July 1926 and in the subsequent deed of transfer and that there is a variation in the area.
8. The trial Court went into this question, out no proper issue had been framed as so the intention of the parties. The Court held that there had been a bona fide mistake on the part of the plaintiff and that the defendant was probably aware of the error and deliberately refrained from disclosing it until he was able to make use of it as a defence in the suit. The lower appellate Court has dealt with she matter very briefly and in an unsatisfactory manner. We consider that before deciding this appeal it is necessary to have a clear finding on this point. There will also have to be a finding as to the amount of damages to which the plaintiff will be entitled in the event of his success. In other words, there must be a finding on the cross-objection which was filed by the plaintiff-respondent before the lower appellate Court. We accordingly remand this case to the lower appellate Court with a direction to record findings on the following issues:
1. Whether the parties to the agreement of 14th July 1926 were agreed as to the plots in respect of which ex-proprietary rights were to be relinquished and was there a consensus ad idem?
2. To what amount of damages will the plaintiff be entitled if his suit is decreed?
9. As regards the first issue the parties will be allowed to lead evidence. The record should be returned within three months and thereafter the usual ten days will be allowed for objections.