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(Firm) Mithan Lal Inder NaraIn Vs. (Firm) Hem Chand Kashmiri Lal and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1935All441; 157Ind.Cas.983
Appellant(Firm) Mithan Lal Inder Narain
Respondent(Firm) Hem Chand Kashmiri Lal and ors.
Excerpt:
- - what should be considered to be composition deed was executed by the creditors and the heirs, of the deceased debtor, which provided that the deceased had left a cloth shop and a house which should be sold and rateable distribution of the proceeds of sale should be made among the creditors and that a creditor should be deemed to have been, satisfied in full on receipt of his rateable share in the aforesaid sale proceeds. it is perfectly immaterial whether the sale proceeds were recovered by the action of the defendant or by that of any other creditor......should be deemed to have been, satisfied in full on receipt of his rateable share in the aforesaid sale proceeds. those representing the debtors signed the agreement aid so did the creditors, except the plaintiff. sometime afterwards the defendant applicant had the house referred to in the agreement sold in execution of his decree and appropriated the sale proceeds. the plaintiff then brought the suit which has given rise to this revision for his share of the sale proceeds of the house, relying upon the agreement. the defendant contested the suit principally on the ground that the plaintiff was no party to the agreement and that he mot having signed it could not enforce it. the agreement mentions the name of the plaintiff in the array of the executants, and the whole deed purports to be.....
Judgment:
ORDER

Niamatullah, J.

1. This is an application for revision against a decree passed by the-learned Judge. Small Cause Court, Dehra Dun, allowing the plaintiff's, claim to a certain sum of money against the defendant, the applicant in this Court. One Parbhu Lal, who was indebted to a number of persons, died sometime before December 1930. Two of the creditors were the parties to this case. What should be considered to be composition deed was executed by the creditors and the heirs, of the deceased debtor, which provided that the deceased had left a cloth shop and a house which should be sold and rateable distribution of the proceeds of sale should be made among the creditors and that a creditor should be deemed to have been, satisfied in full on receipt of his rateable share in the aforesaid sale proceeds. Those representing the debtors signed the agreement aid so did the creditors, except the plaintiff. Sometime afterwards the defendant applicant had the house referred to in the agreement sold in execution of his decree and appropriated the sale proceeds. The plaintiff then brought the suit which has given rise to this revision for his share of the sale proceeds of the house, relying upon the agreement. The defendant contested the suit principally on the ground that the plaintiff was no party to the agreement and that he mot having signed it could not enforce it. The agreement mentions the name of the plaintiff in the array of the executants, and the whole deed purports to be one on behalf of all the creditors, including the plaintiff. Under one of the 'al-abds' meant for the signature of the plaintiff his signature does not appear but Janardhan Das. son-in-law of the deceased, at whose instance the composition was brought about, signed it. The agreement specifically provided that Janardhan Das was made responsible for obtaining the concurrence of the plaintiff to the arrangement embodied therein.

2. The lower Court probably intended to hold that Janardhan Das, who signed the agreement in place of the plaintiff, had an oral authority from him (the plaintiff) and that the plaintiff should therefore be considered to be a party to it. In my opinion the learned advocate for the applicant has succeeded in showing that this view of the lower Court cannot be sustained, even if that Court has so found it, which is not clear. I am however of opinion that it is not necessary to go into the question of Janardhan Das's authority to execute the agreement on behalf of the plaintiff. If the plaintiff subsequently elected to abide 'by the agreement and agreed to rateable distribution, he became a party thereto and could enforce it. The learned advocate for the applicant strenuously contended that there is no evidence to show that the plaintiff ever consented to the terms embodied in the agreement and that if the position had been the reverse of what it is the plaintiff could have successfully backed out of the arrangement. If the premises on which the learned advocate's conclusion is based be accepted, the contention has force; but it is pointed out by the learned advocate for the opposite party that there is definite evidence on the record to show that the plaintiff not long after the execution of the agreement in question expressed his willingness to abide by it. There is a receipt on the record which is signed by the applicant and which shows that shortly after the execution of the agreement moveables were sold and the sale proceeds rateably distributed among the creditors, the plaintiff being one of them. Janardhan Das, who seems to have throughout acted on behalf of the plaintiff to whom he is related gave his evidence and swore that the plaintiff accepted his share of the sale proceeds above referred to. It is argued that Janardhan Das's evidence should not be accepted he being an interested person. I find however that no attempt was made to impeach his Hence in cross-examination on this point. I think Janardhan Das's evidence is true and should be accepted. This being so there can be no doubt that shortly after the agreement the plaintiff elected to agree to the composition, embodied in the agreement in suit. This finding robs the argument put forward on behalf of the applicant of all force. After the plaintiff elected to abide by the agreement, it was not possible for him to resile from it.

3. In the circumstances stated above, the plaintiff is, in my opinion, entitled to enforce the agreement and to claim a share on rateable distribution of the sale proceeds of the house. It was argued on behalf of the applicant that it had been arranged that Janardhan Das should sell the house and the sale proceeds recovered by him would be rateably distributed, but that Janardhan Das did nothing to sell the house and that eventually the defendant had to execute his decree by sale of the house. There is nothing in the agreement to suggest that the responsibility of selling the house was thrown on Janardhan Das. The agreement is merely to the effect that the sale proceeds of the cloth shop and the house would be rateably distributed. This implies that whatever may be the means by which sale takes place, the sale proceeds would be divided in a certain manner among the creditors. It is perfectly immaterial whether the sale proceeds were recovered by the action of the defendant or by that of any other creditor. This contention has no force. The revision fails and is dismissed with costs.


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