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Chacko Joseph Vs. Varghese Markose - Court Judgment

LegalCrystal Citation
SubjectProperty;Contract
CourtKerala High Court
Decided On
Case NumberA.S. No. 322 of 1955 (E)
Judge
Reported inAIR1957Ker181
ActsSpecific Relief Act, 1877 - Sections 14 and 15; Transfer of Property Act, 1882 - Sections 8 and 55; Evidence Act, 1872 - Sections 92 and 101 to 104; Code of Civil Procedure (CPC) , 1908 - Order 41, Rule 4
AppellantChacko Joseph
RespondentVarghese Markose
Appellant Advocate K.K. Mathew, Adv.
Respondent Advocate M.P. Varghese, Adv.
DispositionAppeal allowed
Cases ReferredAmbica Prosad Singh v. Pardip Singh
Excerpt:
contract - misrepresentation - sections 14 and 15 of specific relief act, 1877 and sections 8 and 55 of transfer of property act, 1882 - defendant conveyed certain property for consideration - plaintiff alleged to have fraudulently misrepresented property - suit filed by plaintiff for compensation decreed by trial court - defendant appealed against impugned decree - mere assumption not sufficient to make out fraudulent conduct attributed to defendants - no evidence to show that property measured at any time - parties concentrating on boundaries of property rather than actual measurement - plaintiff unable to establish fraud - held, findings of trial court unsustainable. - - 13,000). the properly thus conveyed was specified us lying within the well defined boundaries mentioned in the.....sankaran, j. 1. this appeal arises out of a suit for compensation for the loss alleged to have been sustained by the plaintiff us a consequence of the fraudulent misrepresentation made by the defendant for inducing him to accept the sale deed ext. d dated 19-10-1123. under this document, the a schedule property was conveyed to the plaintiff by defendants 1 to 4 for a consideration of i. rs. 12771 chuckrums 26 cash 8 (s. rs. 13,000). the properly thus conveyed was specified us lying within the well defined boundaries mentioned in the document.the extent of the property also was given as 12 acres and 81 cents. a special indemnity clause was also inserted in the sale deed and it was to the effect that if the property is seen to be subject to any prior encumbrance, the same would be cleared.....
Judgment:

Sankaran, J.

1. This appeal arises out of a suit for compensation for the loss alleged to have been sustained by the plaintiff us a consequence of the fraudulent misrepresentation made by the defendant for inducing him to accept the sale deed Ext. D dated 19-10-1123. Under this document, the A schedule property was conveyed to the plaintiff by defendants 1 to 4 for a consideration of I. Rs. 12771 Chuckrums 26 cash 8 (S. Rs. 13,000). The properly thus conveyed was specified us lying within the well defined boundaries mentioned in the document.

The extent of the property also was given as 12 acres and 81 cents. A special indemnity clause was also inserted in the sale deed and it was to the effect that if the property is seen to be subject to any prior encumbrance, the same would be cleared by the vendors themselves and in case of their failure to do so, the vendee will be entitled to recover the consequent loss that may be sustained by the vendee from the 1st defendant and also as a charge on the B schedule property.

It transpired later on that 64 cents comprised in Sy. No. 1011/3D and 1 acre 86 cents comprised in Sy. No. 1011/2 forming portions of the property covered by the sale deed Ext. D, had already been dealt with under a usufructuary mortgage and lease back. On the strength of the lease, the mortgagee sued and obtained the decree in O. S. No. 88/1124 of the Muvattupuzha District Munsiff's Court for recovery of the rest due to him. In execution of that decree, the court appointed a receiver to take possession of the aforesaid items and the receiver actually took possession of the same on 25-9-1950,

Because of these developments, the plaintiff prayed for a decree compelling the defendants to pay off the pre-existing liabilities on the two items mentioned above, and to secure possession of these items for the plaintiff. In the alternative a decree for recovery of a sum of Rs. 2500/- as the value of these items was also claimed by the plaintiff. These matters are covered by issues 8, 10 and 13 in the case. At the time of the final arguments the parties appear to have agreed that the question covered by these issues can be disposed of only after the termination of the execution proceedings in O. S. No. 88 of 1124.

It is so stated in paragraph 7 of the lower court's judgment and on the basis of the agreement between the parties,' the questions covered by these issues have been left open to be decided in a sepa-rate suit. Those questions do not therefore arise for consideration in the present appeal.

2. The main question that is agitated in the appeal relates to the plaintiff's claim based on his complaint that there has been a deficiency in the extent of the property represented, to be conveyed under Ext. D. According to the plaintiff the fact that there is such a deficiency came to his notice only when he got the property measured in Medom 1125 i.e. nearly two years subsequent to the date of the sale deed. It is contended that the sale evidenced by Ext. D was negotiated on the basis of the extent of the property as represented by the defendants and that the price was calculated and fixed at Rs. 10/- per cent and that out of the total sale consideration of Rs. 12,810/- a sum of Rs. 12,771 Chuckrums 26 cash 8 was alone mentioned in the document, the balance of Rs. 38 Chuckrum 1 cash 8 having been paid as ready cash to the defendants.

It is also alleged by the plaintiff that at the time of the execution ot the sale deed the defendants had agreed that they' would make good any deficiency in the extent of the property conveyed in case it is found that there is such a deficiency. At the time of the measurement of the property in Medom 1123, it was found that in the properly put in the possession ot the plaintiff as vendee under Ext. D there is a deficiency of 3 acres and 35 cents. It is because the defendants have not made good this deficiency and are not agreeable to pay back the value of the said shortage of 3 acres and 35 cents that the plaintiff was compelled to institute the present suit.

It is alleged that the plot of 3 acres and 35 cents necessary to make up the deficiency in the property conveyed under Ext. D is comprised in Sy. No. 982/1 and is in the possession of the defendants. The plaintiff has, therefore, prayed for a decree for recovery of this plot together with mesne profits at the rate of Rs. 15-1 As. 4 per year or, in the alternative, for recovery of a sum of Rs. 3,350 as the value of the properly together with 6 per cent interest thereon, from the defendants.

3. The defendants resisted the suit and contended that the sale was not negotiated on the basis of the extent of the property in terms of acre and cents, but on the other hand, what the parties bargained to sell and purchase was a definite plot lying within well-defined boundaries as described in the sale deed and a lump amount was fixed as the price of this plot as a whole. All the ether allegations in the plaint were also denied by the defendants. The trial court negatived the plaintiff's allegation that in concluding the contract for sale the parties calculated and settled the price at the rate of Rs. 10/- per cent.

All the same the court came to the conclusion that the defendants were fully aware that the property lying within the boundaries mentioned in Ext. 13 was not f2 acres and 81 cents in extent, as stated therein, and that they fraudulently represented to the plaintiff that the extent is 12 acres and 81 cents. It was also found that the liability to compensate for the consequent loss is covered by the indemnity clause in the sale deed. On the strength of these findings, the plaintiff was given a decree for recovery of a sum of Rs. 3340 as the proportionate price of the actual deficiency in extent which was found to be 3 acres and 35 cents.

Interest on this amount at 6 per cent was also allowed from the date of the sale deed. It is against this decree that the 2nd defendant has preferred this appeal. The plaintiff-respondent has filed a memorandum of objections against the decree disallowing his costs and against the findings recorded against him by the lower court.

4. In respect of a contract for sale of immovable property, the purchaser has certain well-definedrights as against the vendor. These rights are also subject to certain well-known limitations as specified in Sections 14 and 15 of the Specific Relief Act. Section 14 states that where the seller is unable to convey the whole of the property agreed to be sold, the purchaser will have the right to compel specific performance of so much of the contract as can be per-formed and also claim compensation in money for the deficiency, provided that the deficiency bears only a small proportion in value to the entire extent covered by the contract.

Section 15 places a further restriction on the rights of the purchaser under a contract of safe where the portion which is incapable of performance forms a considerable portion of the whole of the property agreed to he sold. In such a case he can compel specific performance by the other party of so much of his part of the contract as he can perform only if he agrees to relinquish all claims to further performance and all rights to compensation either for the deficiency or for the loss or damage sustained by him through the default of the vendor.

These rules can have application only so long as the matter is at the Stage of agreement. If the parties, with open eyes, push through the contract and execute a deed of conveyance, the bargain bet-ween them will normally be deemed to have come to an end. Ordinarily, no question of compensation can arise between them in respect of defects that may be subsequently discovered in respect of that transaction. By the execution of the conveyance the purchaser cannot acquire any larger rights than he had under the contract of sale. This position has been explained by Watkin Williams, J., in Joliffe V. Baker, (1883) 11 QBD 255 at pp. 267 and 268 (A), while dealing with a claim for compensation for a very considerable deficiency. There it was stated as follows :

'I am of opinion in the first place that it has been the established practice of the court of Chancery that a bill for compensation properly so called the purchaser retaining the property could not be entertained after the completion of the contract and execution of the conveyance and that the jurisdiction under which compensation was granted was exercised only as ancillary to specific performance and was never exercised independently.''

Further on, it is observed as follows :

'This rule seems to me also to rest upon sound principles of law and equity, because if it were otherwise, a purchaser might after conveyance, and while still insisting upon retaining the estate, ask for an abatemnt of the agreed purchase money, which would he wholly contrary to every principle. If he came before conveyance he might if misled, even by an innocent error, fairly sly to the vendor, I have been misled, and do not wish to have the estate, and if you insist upon my performing the contract and taking it, a fair abatement from the price ought to be made', in which case the vendor would be placed in a fair position, because if he was unwilling to part with his estate at the reduced price he might retain it; on the other hand, if the purchaser was entitled to insist upon retaining the estate, and at the same time claim an abatement of the price, the result would be that the vendor on account of a perfectly innocent and unintentional error might be compelled to part with his estatefor a price that he never, had and never would have agreed to, which appears to me contrary not only to the express terms of the contract, but to everyprinciple, of law and justice.''

The position will be different where the conveyance is brought about on account of any fraud practised by the vendor or where there is an express agreement between the parties for payment of compensation for any defect or deficiency in the property conveyed or where there is an express or implied warranty as to the extent of the property as specified in the deed of conveyance. In Brownlie v. Campbell (1880) 5 AC 952 (B) Lord Selborne observed as follows at page 937 :--

''Passing from the stage of correspondence andnegotiation to the stage of written agreement, thepurchaser takes upon himself the risk of errors, Iassume them to be errors unconnected with fraud inthe particulars, and when the conveyance takes placeit is not, as far as I know, in either country theprinciple of equity that relief should afterwards begiven against that conveyance, unless there he acase of fraud, or a case of misrepresentation amounting to fraud by which the purchaser may have beendeceived'.

Clayton v. Leech, (1889) 41 Ch. D. 103 (C) is an authority for the position that subsequent to the conveyance a claim for compensation on the ground of misdescription in the document is not maintainable unless it is provided for in the document itself. The law governing a claim for compensation by a party to a deed of conveyance against the opposite party has been stated in the following terms in Halsbury's Laws of England, Vol. 29 (Hailsham, 2nd Edition), page 464, paragraph 669:

'After completion of the contract the transaction is at an end as between vendor and purchaser,and as a general rule, no action either at law or inequity can be maintained by either party againstthe other for damages or compensation on accountof errors as to the quality or quantity of the propertysold, unless such error amounts to a breach of somecontract or warranty contained in the conveyanceitself, or unless some fraud has been practised onthe purchaser.'

These principles have been generally accepted and followed by the Indian Courts also in dealing with the same subject. In the recent decision in Delli Granani v. Ramachandran, AIR 1953 Mad 769 (D) there has been an exhaustive review of the case law on the subject and the result of such re view has been stated as follows :-

'To sum up if there is any error in the statement of the extent of the property agreed to be sold the purchaser can claim specific performance, with compensation if he can bring his case under Section 14, Specific Relief Act, but if the contract, has been completed by the execution of the sale deed then tile purchaser can claim compensation if ha establishes fraud, or if there is a special agreement for making compensation for errors in quantity or if there is a warranty that the extent conveyed by the sale deed is correct. A part from such cases he has no right to compensation.'

5. In the present case the plaintiffs claim is sought to be rested on all the three grounds mentioned above. The fraud alleged against the defendants is that at the time of the conveyance the defendants were fully aware that there was a considerable shortage in the extent of the property soldand that with full consciousness of that fact they fraudulently represented that the extent of the property was 12 acres and 81 cents arid thus induced the plaintiff to accept the conveyance on that basis. This case of fraud has been accepted by the lower court and the main reason which weighed with the lower court in accepting the case of fraud is that 'the defendants have not adduced any evidence contra' to the case of faud as put forward in the plaint.

The learned District Judge has clearly erred in his view regarding the burden of proof in respect of an allegation of fraud. The burden is undoubtedly on the plaintiff to make out the case of fraud alleged by nun by adducing satisfactory and convincing evidence. He cannot rest content by merely alleging fraud on the pail of the defendants and then hoping that he can succeed in case the defendants do not adduce evidence to disprove such an allegation. The defendants are not obliged to lead any evidence in that direction. The only evidence in support of the case of fraud set up in the plaint consists of the testimony of P. W. 2 who has been examined on behalf of the plaintiff.

It was this witness who took an active part on behalf of the plaintiff m bringing about the sale in question. All that he has stated in support of the plaint allegation of fraud is that even at the time of conveyance the defendants were aware of the deficiency in the extent of the property. In his cross-examination he was asked to state the basis of the assertion made by him. His reply was that he made the assertion in his chief examination because he thought that the defendants as owners of the properly must have been aware of the extent of the property that was being conveyed under the sale deed Ex. D. Such an assumption or inference made by him may be fight or may be wrong.

A mere assumption like that is hardly sufficient to make out the fraudulent conduct attributed to the defendants. There is no evidence to show that the properly covered by the boundaries specified in the sale deed had at any time been measured by the defendants. In fact, it is abundantly clear from the document itself that the parties were concentrating on the boundaries of the property and accordingly they were making special emphasis on such boundaries to indicate the property that was meant to be conveyed. That must obviously be the reason why the vendee did not care to have the property measured before the execution of the deed of conveyance or within a reasonable, time thereafter.

It is conceded in the plaint itself that the fact that there is an error in the extent as specified in the sale deed was discovered only at a very late stage i.e., nearly two years after the execution of the sale deed. Under these circumstances the case of fraud pleaded by the plaintiff has to be ruled out particularly in view of the fact that there is absolutely no evidence to show that the defendants were aware at the time of conveyance that the extent mentioned in the document was incorrect and that the real extent of the property was very much below that mentioned in the document.

6. It has next to be considered whether there is any express or implied warranty in the sale deed Ex. D as to the extent of the property as specified therein. That there has been no express warranty in that direction is clear from a mere reading of the document. In order to make out that there is an implied warranty, the plaintiff has tried to develop a case that the sale price agreed to be paid was at Rs. 12 per cent. Calculating at this rate the total amount comes to Rs. 12810. But this is not the price mentioned in the sale deed Ex. D. The sale price mentioned in that document is a lump amount of Trav. Rs. 13,000 which is equivalent to I. Rs. 12,771 and Chuckrums 26 1/2 only.

To explain away this difference, it is stated in the plaint that there was a prior payment of Rs, 38 and the balance amount alone was shown in the sale deed. There is no receipt or other independent evidence to support the case of prior payment of Rs. 38, and the document also gives no indication that there was any such, prior payment. On the other hand, the express statements in that document make it abundantly clear that there could not have been any fixation of price on the basis of the extent of the property. The document states that what is conveyed under it consists of the entire property lying within the rubble walls on the four sides of it together with two buildings and'all the trees standing on the property.

It is also seen that the lump amount of Trav. Rs. 13000 is specified as the price for the land, trees, buildings and the rubble walls, all taken together. In the face of such express statements in the deed of conveyance, it is not open to the parties to lead oral evidence to show that the nature of the bargain between them was different from what is expressed in the document itself. In AIR 1953 Mad 769 (D) it was pointed out that :

'an agreement as to implied warranty regarding the correctness of the extent of the property sold should be established on the terms of the sale deed and it is not open to the plaintiff to travel outside the deed and to adduce evidence to prove that there was a warranty, dehors the instrument.'

It was also pointed out that such evidence is inadmissible under Section 92 of the Evidence Act. In the present case such oral evidence was attempted to be adduced through Pws. 2 and 3, both of whom have stated that the sale price was calculated and fixed on the basis of the extent of the property and that a total consideration of Rs. 12,800/- was paid. It has already been pointed out that this version cannot be true. Pw. 3 is the scribe who prepared the sale deed Ext. D and he has admitted that the parties had gone to him after they had negotiated and settled the transaction and he had only to prepare the document as per the materials supplied to him.

It is therefore obvious that he could not have had any direct knowledge about the nature of the negotiations between the parties. The details which were supplied to him by the parties and which are embodied in Ext. D are also inconsistent with the version given by Pws. 2 and 3 that the sale price was fixed on the basis of the extent of the property, the lower court was therefore right in rejectingtheir oral evidence on this point as being inadmissible and unreliable.

7. As already stated, the property conveyed under Ext. D has been described as a plot enclosed by rubble walls on its four sides. It is expressly stated that the entire property enclosed by these rubble walls has been sold to the plaintiff, along with the rubble walls also. Such a description has been repeatedly emphasised in the document. There, is also an express stipulation that if at any subsequent stage any error is found out in the description of the property, the plaintiff will be entitled to get possession of the entire properly lying within the four rubble walls specified in the document.

There can therefore be no doubt that the conveyance was in respect of the property enclosed by the rubble walls, whatever might be its extent. The plaintiff has no case that he has not obtained possession of the rubble walls and the property enclosed by these walls. On the other hand it is admitted by him that ever since the time of the sale deed he is in possession of this plot together with the rubble walls enclosing the same. Thus he has got what he had bargained for and what was intended to be conveyed under Ext. D. The error in the extent of this plot as stated in Ext. D has only to be ignored as inconsequential and immaterial in such a situation. In dealing with a similar situation in Llewellyn v. Earl of Jersey, (1843) .11 M and W 183 at p 189 (E) Baron Parke observed as follows :--

'Then the other rule of law applies, that assoon as there is an adequate and sufficient definition with convenient certainty of what is intended to pass by a deed, any subsequent erroneous addition will not vitiate it, according to the maxim false demonstratio non nocet.'

This principle has been accepted in Kondal Rao v. Dhanakoti, AIR 1938 Mad 81 (F) and also in AIR 1953 Mad 769 (D). In the last of these cases it was ruled that where, on a construction of the sale deed, it is clear that the intention of the parties was to sell a parcel of Jand within well-defined boundaries, any erroneous statement regarding its-extent should be rejected as falsa demonstrate. This rule has to prevail in the present case also because it is absolutely clear from the statement in Ext. D that the parties were dealing only with the property enclosed by the nibble walls mentioned as its boundaries and as there has been no express or implied warranty that its real extent is as stated in the document.

8. It has next to be considered whether the plaintiffs claim in the suit would come within the ambit of the indemnity clause contained in Ex. D. Even if it is taken that the indemnity clause is comprehensive enough to cover a case of loss sustained by the vendee of the property on account of its deficiency in extent as contended for by the plaintiff, that clause can conic into operation only in the event of the vendee sustaining any actual loss and not in any other contingency. It has already been pointed out that the vendee got the whole of what he had bargained for and it cannot be said that he has sustained any loss on account of the deficiency in the extent of the property.

Coming to the indemnity clause itself, it is significant to note that it makes no reference at all to the extent of the property or to any possible loss as aconsequence of any deficiency in the extent of theproperty. The indemnity clause merely states that if there are any subsisting charges on the property, the same would be paid off by the vendors themselves without causing any loss to the vendee and that if, the vendee sustains arty loss on account of the vendors' default to pay off such encumbrances, he will be entitled to recover the amount of such loss with interest on the same from the 13 schedule properties included in the sale deed Ext. D towards security for such possible loss.

The indemnity clause being thus restrictive in its scope and application, it cannot be said that it would take in losses arising out of any deficiency in the extent of the properly. If the parties had intended the indemnity clause to cover such losses also, there is no reason why they should have omitted to specify the same in that clause. In the absence of any such specification, the claim for compensationon account of the alleged deficiency in the extent of the properly cannot be sought to be sustained on the basis of any agreement embodied in the sale, deed.

Viewed in all these aspects, it is clear that the plaintiff's claim for compensation for the alleged loss in the extent of the properly conveyed under Ext. D, cannot be sustained on any ground whatever and we hold accordingly. The claim for recovery of property equal in extent to the deficiency alleged by the plaintiff is also equally unsustainable.

9. From the findings recorded above, it follows that this appeal has to be allowed. However, it is argued on behalf of the plaintiff-respondent, that the appeal having been preferred by the 2nd defendant alone the trial Court's decree as against the other defendants cannot be set aside in this appeal. It is particularly urged that in view of certain ad-missions made by the 1st defendant subsequent to the date of the sale deed Ext. D, the decree as against him has to be maintained in any view of the case. Exts. A, B and C are the letters ' relied on by the plaintiff in support of his contention.

These three letters were sent by the 1st defendant to P. W. 2 long after the sale deed Ext. D. Excepting for certain vague assurances by the 1st defendant that he has no idea of causing any loss to the plaintiff in connection with the sale in question, there is no clear undertaking in any of these letters by the 1st defendant that he would compensate the vendee for any loss on account of the deficiency in the extent of the property. In Exts. B and G the 1st defendant has stated that every arrangement was being made for paying off the encumbrances on the property. Ext. A alone makes, some reference to the extent of the property sold under Ext. D.

A reading of the letter Ext. A shows that the 1st defendant was hoping to convince P. W. 2 by getting the property measured by the employees of the revenue department, that there is no real deficiency in the extent of the properly. But nothing was done in that direction. It is also seen that during (the progress of the suit the 1st defendant was in-clined to enter into a compromise with the plaintiff and thus to settle the dispute between them. But later on he gave up the idea and preferred to take a decision from the Court, On account of such conduct on the part of the 1st defendant or on the strength of the letters Exts, A to C sent by him to P. W. 2, it is not possible to decree the plaint claim as against him alone.

In the plaint no separate claim is made against the 1st defendant on the basis of any agreement made by him subsequent to the date of Ext. D. On the other hand, the plaint claim is rested solely OB the sale deed Ext. D and ail the defendants who are the joint executants of Ext. D, are sought to be made equally liable for the alleged deficiency in the extent of the property conveyed under it. The trial of the suit also proceeded on that basis and by the decree passed by the trial Court all the defendants are made equally liable on certain common grounds found against them. The provision contained in Rule 4 of Order 41 of the Code of Civil Procedure is attracted by such a situation. That rule runs as follows :

'Where there are more plaintiffs or more defendants than one in a suit and the decree appealed from proceeds on any ground common to all the plaintiffs or to all the defendants, any one of the plaintiffs or of the defendants may appeal from the whole decree, and there upon the appellate Court may reverse or vary the decree in favour of all the plaintiffs or defendants, as the case may be.'

The conditions stipulated in this rule are fully satisfied by the present appeal which is directed against the trial Court's decree passed on certain common grounds found against all the defendants. Even though the 2nd defendant alone has come up in appeal he has succeeded in making out that all those common grounds are unsustainable. The result of such a finding is that tlie basis of the plaint claim disappears in toto. The necessary consequence must be to non-suit the plaintiff, In such a situation a dismissal of the suit as against the appellant--2nd defendant alone, keeping in act the trial court's decree as against the other defendants, would be to bring about an absurd and anomalous result.

It is to obviate such a result that Rule 4 of Order 41 of the Code of Civil Procedure was enacted. In a case falling under this rule the appellate Court has to exercise the power, conferred by the rule. Since the decree in this case was passed by the trial Court on certain grounds common to all the defendants and since the 2nd defendant who has come up in appeal has succeeded in upsetting those grounds and in establishing that the plaint claim is fully baseless, the proper decree to be passed in the appeal would be to reverse the decree in toto, so that the benefit of the appeal preferred by the 2nd defendant goes to the other defendants also even though they have not joined in the appeal. The decisions in Bam Kamal Shaha v. Ahmad Ali, ILR 30 Cal 429 (G); Dhuttaloor Subbayya v. Paidigantam Subbayya, ILR 30 Mad 470 (FB) (H) and in Ambica Prosad Singh v. Pardip Singh, ILR 42 Cal 451: (AIR 1915 Cal 618) (I), ate also in support of this position.

10. Another small point alone remains for consideration in this appeal and it relates to the decree awarding Rs. 50 as compensation for the loss sustained by the plaintiff on account of the loss of profit of 2 1/2 acres which has been in the possession of a receiver appointed by the Court in O. S. No. 58/1124 of the Moovattupuzha Munsiif's Court. That was a suit instituted to enforce a prior charge that was subsisting on the plaint property.

Since the question of damages sustained by the plaintiff on account of the failure of the vendors to pay off the encumbrances on the property as they had undertaken in the sale deed Ext. 1) has been left open to be agitated in a separate suit, it is only proper that the claim on account of loss of profit of the property taken possession of by the receiver in O. S. No. 88 of 11.24 is also left open for decision in that separate suit and it is so directed.

11. In the result this appeal, is allowed and in reversal of the decree of the lower Court, the plaintiff's suit is dismissed as against all the defendants with costs throughout to the contesting 2nd defendant-appellant; The respondent's memorandum of objection is also dismissed with costs.


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