1. This appeal arises out of a suit brought by the plaintiff-appellant against the respondent for recovery of property sold to his father Chhuttan Lal on foot of a sale-deed dated the 1st of February 1904 by a lady who has since died, namely Mst. Kul Kunwar.
2. The appellant claims as a reversioner and the pedigree given below,
Jiwa Ram Daulat Ram
Nikka Mal Hoti Lal (adopted son
| Mst. Mul Kunwar (widow)
| | |
Mittar Sain Makkhan Lal Hoti Lal
| (issueless) (adopted son)
Budh Sain Nanhun Mal
Pindi Lal Darbari Lal
| | |
Har Charan Lal Kanhalya Lal Bai Kishen
3. It appears that Hoti Lal died, possessed of considerable amount of property, sometime in 1869. Mussmmat Mul Kunwar succeeded to the property as his widow and she died on the 16th of April 1916. On the 31st of October 1897 she executed a simple mortgage with respect to the properties in suit for the sum of Rs. 12,000 in favour of two persons Beni Ram and Janki Prasad. One Budh Sen joined with her in executing the deed. Budh Sen, it will be noticed, is a paternal uncle to the plaintiff- appellant.
4. A few days before the execution of the deed of mortgage, the plaintiff's father Nanhun Mal had executed a deed by which he gave his consent to the proposed mortgage by Musammat Mul Kunwar and Budh Sen. On the 1st of February 1904 Mul Kunwar alone sold the property to the respondent's father Chhuttan Lal for a sum of Rs. 24,800. The appellant's case was that the mortgage and the sale were made without legal necessity and he is, therefore, entitled to recover the property without any payment. He also asked for mesne profits.
5. The defence so far as it is relevant for the purposes of this appeal was this. The suit was barred under the provisions of Order II, Rule 2 of the Code of Civil Procedure inasmuch as defendant and his father for recovery of the property belonging to Hoti Lal, but omitted to ask for any relief with respect to the properties now in suit, and that the transfers were supported by legal necessaity.
6. The Court below decided the issue involved in the first plea, as noted above, against the respondent, but on the question of necessity it found for him.
7. In this Court the two points to be considered are what have been stated above.
8. On the first point it appears to us to be quite dear that the suit is barred under the provisions of Order II, Rule 2 of the Code of Civil Procedure. That rule of law lays down.
Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action... 'Where a plaintiff omits to sue in respect of or intentionally relinquishes any portion of his claim he shall not afterwards sue in respect of the portion so omitted or relinquished.
9. By way of illustration it is said that where rent for the whole years 1905, 1906 and 1907 is unpaid if the plaintiff sues in 1908 in respect of the rent of 1906 only he shall not afterwards sue for the rents for the years 1905 or 1907- In this case the plaintiff's cause of action is this, He is the reversioner and rightful heir to Hoti Lal and the property in suit in the possession of the defendant belongs to Hoti Lal. This is his whole cause of action. It is immaterial for him whether the defendant wants to justify his right to, continue in possession on different grounds The defence or the nature of it is immaterial for the purposes of finding out what is the cause of action of the plaintiff.
10. We find that the plaintiff brought at least two suits against the defendant or his father He brought suit No. 45 of 1917, the plaint of which is printed at p. 103 of the record, for recovery of a portion of Hoti Lal's property from the respondent and his father. In paragraph 11 he said that his causa of action arose on the 15th of April 1916, the date of the death of Musammat Mul Kunwar. He brought again suit No. 282 of 1917, the plaint of which is printed an p. 99 of the record against the respondent and his father, In paragraph 13 of the plaint he said that his cause of action arose on the 15th of April 1916, the day on which Musammat Mul Kunwar died. In paragraph 10 of the plaint of the suit out of which this appeal has arisen he makes the same statement namely his cause of action arose on the 16th of April 1916, the date of the death of Musammat Mul Kunwar. The suit No. 45 of 1917 shows that the property in respect of which it was instituted was the property which had been purchased by Kundan Lal, grandfather of the present defendant. It is clear that when this suit of 1917 was brought the plaintiff could have, if he was so disposed, brought a claim with respect to the properties now in dispute. There is no authority so far as we are aware to establish that any such suit would have been repugnant to any rule of law. On the other hand, there are numerous authorities to show that a reversioner is entitled to bring a single suit against any number of persons who may be holding different portions of the last male holder's property, though they may be holding under different title deeds, executed at different dates.
11. We are, therefore, clearly of opinion that the suit was barred under the provisions of Order 2, Rule II of the Code of Civil Procedure and should have been dismissed on that ground alone.
12. Coming to the question of necessity, we find that so far as the bond of 1897 is concerned there is not much clear evidence. In the bend itself, which is printed at p. 33 of the record, the lady Musammat Mul Kunwar says that the wanted money for the performance of pilgrimage for the benefit of her husband's soul and that Budh Sen stood in need of money for the maintenance of children and for trade. It is not clear what amount of money was required by the lady for the pilgrimage and what amount was wanted by Budh Sen for his own purposes. 1 Before we examine the question of necessity further it will be interesting to note a slight previous history of the family. It appears that on the death of Hoti Lal in 1869 Musammat Mul Kunwar executed a document dated the 23th of May 1869, a copy of which is on the record, but which unfortunately has not been printed, by which the lady stated that she regarded Budh Sen as her adopted son and was appointing him as the sarbarahkar or the manager of her property. She further stated that the manager would have no right to transfer any portion of her property without her consent. It further appears from the statement of Tika Ram who was for some time in the seryice of Musammat Mul Kunwar and held a general power of attorney from her that both Budh Sen and Nanhun Mal were living with the lady Musammat Mul Kunwar as dependent members of the family. His statement receives entire corroboration from the statement of the plaintiff appellant himself. The plaintiff's father Nanhun Mai, according to the plaintiff him self, had no zamindari property. He did not keep any shop and the appllent did not know if he had any income whatsoever from any source. The support, therefore, of dependent relations in the family would be a part of the family necessity.
13. Coming back to the actual evidence in the case, we find the recital in the bond already slated. According to the recital which would be admissible as good evidence under the Privy Council case of Nanda Lal Dhur v. Jagat Kishore Acharjya 36 Ind. Cas. 420 : 44 C. 186 : 20 M.L.T. 335 : 31 M.L.J. 563: (1916) 2 M.W.N. 836 : 4 L.W. 458 : 18 Bom. L.R. 868 : 14 A.L.J. 1108 : 21 C.L.J. 487 : 1 P.L.W. 1 : 21 C.W.N. 225 : 10 Bur. L.T. 177 : 13 I.A. 249 (P.C.) and a decision of this Court in Peari Lal v. Sunder Singh 68 Ind. Cas. 305 : 44 A. 756 : 20 A.L.J. 658 : (1922) A.I.R. (A.) 436 the money was needed for pilgrimage and to enable Budh Sen to earn a living of his own. It is true that Tika Ram has said that half the money was required by the lady for pilgrimage and the other half was taken by Budh Sen for the purposes of his trade. But Tika Ram was not in the service of the lady at the time and it is difficult to believe that he could definitely know how the money was disposed of. We have, however, his evidence that the lady did go on pilgrimage and we have the deed of relinquishment executed by the appellant's father showing that the lady contemplated a pilgrimage. It is common ground that Hoti Lal owned a very large amount of property and was a highly respected gentleman of the palace. Spending Rs. 12,000--over pilgrimage and support of the family will not be at all considered an extravagant act. As held in the Privy Council case of Rmgasmi Gounden v. Nachiappa Gatmden 50 Ind. Cas. 498 : 42 M. 523 : 36 M.L.J. 493: 17 A.L.J. 586 29 C.L.J. 589 : 21 Bom. L.R. 640 : 28 C.W.N. : 777 : (1919) M.W.N. 262 : 26 M.L.T. 6 : 10 L.W. 105 : 46 I.A 72 : 1 U.P.L.E. (P.C.) 66 (P.C.) the circumstance that the only reversioners at the time gave their unqualified consent to the mortgage raised a very strong presumption that the mortgage was supported by legal necessity. In this case there is no evidence which would rebut the presumption raised. There can be no doubt that the presumption is rebuttable as it was found rebutted in the case of Ghisiawan Pande v. Raj Kumari 68 Ind. Cas. 556 : 19 A.L.J. 476 : 48 a. 634. But in this case, as has been stated, there is no evidence whatsoever to show that the consent of the reversioners was not justified. We hold therefore that the mortgage of 1907 was justified by legal necessity.
14. Coming to the sale-deed of 1904, the case is much easier. We find that the sale consideration is made up of three portions, namely Rs. 20,000 left with the vendee to pay the mortgage-deed of 1897. The sum of Rs.4,500 was obtained to pay land revenue was payable for the instalments for the months of November and December 1903 and the sum of Rs. 300 was taken in cash. We have got the evidence of Tika Ram that a sum of Rs. 300 was needed to meet the expense of the execution and completion of the bond. We have both documentary and oral evidence to prove that the purchaser deposited Rs. 4,700 in the Government Treasury on two dates, namely the 1st of February 1904 and the 4th of February 1904 towards the payment of land revenue due by the lady Musammat Mul Kunwar. Tika Ram says that on account of drought rent could not be realized from tenants and it was feared that the property of Musammat Mul Kunwar would be attached and the revenue would be realized by direct collection to be made by the Collector. There was therefore a pressing necessity to raise the money. We have evidence to show that the vendee had to pay a very large sum of money much exceeding the sum of Rs. 20,000 left with him to pay off the decree which was passed on foot of the mortgage-deed of 1907. We hold therefore with the Court below that sale-deed was fully supported by legal necessity.
15. The result is that the appeal fails and is hereby dismissed with costs, including Counsel's fees in this Court on the higher scale.