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(Lala) Nand Kishore and ors. Vs. Kunj Behari Lal and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1933All303; 145Ind.Cas.756
Appellant(Lala) Nand Kishore and ors.
RespondentKunj Behari Lal and ors.
Cases ReferredBenares Bank Ltd. v. Harinarain and Amraj Singh
Excerpt:
.....party to the extent of half and half. lala chheda lal, the ancestor of the defendants, and lala sukhdeo prasad, the father of the plaintiffs, was pending and as there was a hurry about getting it stayed the ancestor of the plaintiffs wrote a letter to lala chheda lal who was the head and the managing member of the family of the defendants, and lala chheda lal also wrote one to lala sukhdeo prasad, the ancestor of the plaintiffs, on 14th december 1924, and it was agreed upon that the letters would be duly executed in the month of january 1925. 2. it is further stated in the plaint that sukhdeo prasad brought his suit with the assistance of chhedi lal, and that it failed, and an application for stay of the mesne profits decree also failed. we consider that an agreement which has..........of the defendants. the plaint sets forth the cause of action which is somewhat lengthy as follows: lala sukhdeo prasad, the ancestor and the father of the plaintiffs, on 9th june 1914, took a lease of certain property for 11 years paying the premium of rs. 13,000 to rani durga kunwar of kashipur of certain property. on 25th september 1914, lala chhedi lal, ancestor of the defendants, took a similar lease of other property for rs. 12,000 premium from the same lady for the same period of 11 years. this was in possession of the estate of her husband as a hindu widow. but one kunwar anand singh brought a suit in 1916 against her for possession of the estate on the ground that he had been adopted by her husband, and he also sued sukhdeo prasad and chhedi lal for possession of the property......
Judgment:

Bennet, J.

1. This is a second appeal by the defendants against the concurrent decrees of the two lower Courts decreeing a sum of money in favour of the plaintiffs against the defendants' property, with the direction that the decree shall not be executed against the person of the defendants. The plaint sets forth the cause of action which is somewhat lengthy as follows: Lala Sukhdeo Prasad, the ancestor and the father of the plaintiffs, on 9th June 1914, took a lease of certain property for 11 years paying the premium of Rs. 13,000 to Rani Durga Kunwar of Kashipur of certain property. On 25th September 1914, Lala Chhedi Lal, ancestor of the defendants, took a similar lease of other property for Rs. 12,000 premium from the same lady for the same period of 11 years. This was in possession of the estate of her husband as a Hindu widow. But one Kunwar Anand Singh brought a suit in 1916 against her for possession of the estate on the ground that he had been adopted by her husband, and he also sued Sukhdeo Prasad and Chhedi Lal for possession of the property. During the pendency of this suit the Rani died in 1917, and the suit of Kunwar Anand Singh was decreed on 23rd August 1918, and the leases to Sukhdeo Prasad and Chhedi Lal were cancelled, and it is admitted that possession was obtained from them. They had. therefore been for some four years in possession of the property leased to them. The lessees brought separate appeals in the High Court which they lost on 21st March 1923. After that Kunwar Anand Singh applied in 1923 to the Subordinate Judge of Moradabad for decrees for mesne profits, and obtained one decree for Rs. 13,000 odd against Sukhdeo Prasad and one decree for Rupees 11,000 approximately against Chhedi Lal. Para. 6 of the plaint is as follows:

During the pendency of the execution of the decree, Lala Chheda Lal, the ancestor of the defendants and the father of the plaintiff, in consultation with each other went on taking objections, etc., with a view to delay the payment of the decree money. When the objections, etc., were disallowed, Lala Sukhdeo Prasad, the father of the plaintiffs and Lala Chheda Lal, the ancestor of the defendants, thinking that their zarpeshgi amounts had been misappropriated, that the decree for mesne profits had been passed (against them) and that they had been put to a great loss, in consultation with each other, thought of finding out some such means as might enable them to delay the execution of the decree for mesno profits and to evade payment of the amounts of the decrees.

As interest was not awarded in the decrees, they thought that the greater the delay the more would be their gain as regards interest of a considerable amount. Accordingly it was agreed upon that Lala Sukhdeo Prasad, the father of the plaintiffs, should first bring a suit against Kunwar Anand Singh, for the recovery of the zarpcshgi amount in respect of his lease, with the allegation that Kunwar Anand Singh got the property left by Rani Durga Kunwar and after having filed the suit should, by making an application, get the proceedings relating to the execution of the said decree for mesne profits which had been passed against the ancestors of the plaintiffs and defendants, stayed till the decision of the suit. It would at least take one year for the case to he decided. They also entered into an agreement to pay the amount of costs incurred in the suit from the Court of first instance up to the appellate Court half and half, and in case of their failure, to pay the costs of the opposite party to the extent of half and half. There wore also some other conditions, along with which it was also agreed upon that Chandi Earn would look after the case on behalf of Lala Ghheda Lal, the ancestor of the defendants, and that Lala Kunj Behari Lal would look after the case on behalf of the ancestor of the plaintiffs, as the execution of the decree in re Kunwar Anand Singh v. Lala Chheda Lal, the ancestor of the defendants, and Lala Sukhdeo Prasad, the father of the plaintiffs, was pending and as there was a hurry about getting it stayed the ancestor of the plaintiffs wrote a letter to Lala Chheda Lal who was the head and the managing member of the family of the defendants, and Lala Chheda Lal also wrote one to Lala Sukhdeo Prasad, the ancestor of the plaintiffs, on 14th December 1924, and it was agreed upon that the letters would be duly executed in the month of January 1925.

2. It is further stated in the plaint that Sukhdeo Prasad brought his suit with the assistance of Chhedi Lal, and that it failed, and an application for stay of the mesne profits decree also failed. Chhedi Lal died on 24th November 1927, and para. 14 sets forth that he left the defendants as his heirs, and the property left by him devolved upon the defendants. Para. 18 asked for a decree for Rupees 1,831 with costs of the suit etc., against the person and properties of the defendants. The defence was firstly that there was no agreement. But on this plea the lower appellate Court holds that there was an agreement. Secondly the defence was that the agreement was against public policy, and thirdly the defence was that the alleged agreement would not be enforceable against the defendants who are the surviving members of a joint Hindu family including several minors. It is on the ground of public policy and Hindu law that the appeal has been argued before us. To the facts alleged in para. 6 of the plaint one further fact may be added, and that is that the lower appellate Court has held that the parties thought that they had a genuine chance of recovering the money paid as premium for the lease. That finding in regard to the premium is based on a letter, paper No. 296, which sets forth the terms of the agreement and which states, that one of the terms was that Sukhdeo Prasad and Chhedi Lal were to share the premium, if recovered in the suit by Sukhdeo Prasad. That fact has been omitted from para. 6 of the plaint probably by accident.

3. The question which we have to decide is whether such a claim as set forth in para. 6 of the plaint is a claim based on an agreement which is Contrary to public policy within the meaning of Section 23, Contract Act. It may no doubt be legal for a man to evade the execution of a decree against him by various devices, but the question is, is an agreement between several persons, the object of which is that a decree against one of them should be evaded, an object which is lawful and which is not contrary to public policy. Individuals may do acts which when the subject of an agreement between a number of individuals assume an entirely different legal complexion. For an example of this we may refer to the long series of decisions in the English Courts of law in regard to the action of combinations of Trades Unionists during the course of the nineteenth century. It was only after special legislation that it was lawful for individuals to join together by agreement to do certain acts which would undoubtedly have been legal under the Common law for these individuals to do separately. The law may treat agreements between a number of individuals in different ways. It may hold that the agreement forms a criminal conspiracy and renders the persons making the agreement liable for criminal conspiracy. There is no difficulty in finding examples under the present law of this country. Or the law may not regard the agreement as so heinous as to amount to a criminal conspiracy, but it may hold that it is an agreement which it is not the public policy of the Courts to enforce. No ruling has been shown to us which deals with any agreement at all similar to the present case. It is no doubt a fact that the law of maintenance does not apply to England as it applies to India, and it is for this reason that we do not find examples from English rulings similar to the present case because such agreements would amount to maintenance under the English law, and therefore their enforcements in the Courts of law would be opposed on that ground alone.

4. The agreement contained in para. 6 of the plaint, in our opinion, goes considerably beyond the question of maintenance. It is not merely an agreement between the parties to it that one should assist the other in carrying out the litigation, but it has as its object the delay of the execution of the decree which was passed against Chhedi Lal. Chhedi Lal therefore in order to evade the execution of the decree against him assisted in the financing of the litigation by Sukhdeo Prasad, and his object in part was to delay execution of a decree against Chhedi Lal. We consider that an agreement which has such an object, whether that is the sole object of the agreement or not, is an agreement which ' is clearly against public policy. It is not for the Courts to enforce an agreement which has for its object the delay of the execution of the decrees of the Courts. Such an object would, we consider, stultify the Courts, and it would be wrong and contrary to public policy for Courts to uphold agreements which were intended to prevent the carrying out of the decrees of the Courts. Accordingly we consider that this appeal must be allowed on this ground.

5. We now turn to the second ground that the agreement would be one which cannot be enforced against the defendants under the Hindu law. Chhedi Lal had died before the suit was brought, and the defendants are his sons and some of them are minors. It is clear that the agreement was not for legal necessity, and further the agreement was not one which was to protect the family joint property. The learned Counsel has argued that if the litigation had succeeded, Chhedi Lal would have received half the decretal amount, and therefore he would have been able to set off the money so gained in his accounts against the loss which he had incurred on the decree for mesne profits. But the fact that a man would gain money and had also suffered a loss does not amount to making the transaction a defensive one. The transaction was clearly speculative, and we consider that Chhedi Lal as manager and father of a joint Hindu family was not entitled to employ the joint family funds for the purposes of such litigation, nor is the joint family property liable for such action of Chhedi Lal. It was argued by the learned Counsel that there might be a decree against the assets of Chhedi Lal, but the reply is that no such prayer was made in the plaint in the alternative or otherwise. However that question does not arise because we consider that the suit must wholly fail both on the ground of being contrary to public policy and on the ground of Hindu law. We may refer for the question of benefit of the estate to Jagat Narain v. Mathura Das : AIR1928All454 , in which there is a definition on p. 846 (of 26 A.L.J.), which implies that the degree of prudence to be exercised.

would be the prudence which an ordinary man would exercise with the knowledge available to him.

6. Was it therefore a prudent transaction for Chhedi Lal to embark on this litigation? We consider that it was not. We may also refer for decisions of a later date on the important question of the limits allowed to a manager of a joint Hindu family: Benares Bank Ltd. v. Harinarain and Amraj Singh v. Shambhu Singh : AIR1932All632 . We allow this second appeal with costs throughout and set aside the decree of the lower appellate Court.


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