P.N. Shinghal, J.
1. These two second appeals arise from a single judgment and decree of the learned District Judge of Pali dated May 23, 1958 and will therefore be disposed of together. The history of the dispute which dates back to S. 1984 may be stated briefly.
2. The Jagir of Meda was situated in the Sojat pargana of the former Jodhpur State and Sewaj was one of the villages Included in that Jagir. The Thikana gave the 'ijara' of village Sewaj to Magni Ram, Har Lal Ratan Khan and Noor Khan, for a period of 10 years, or Sawan Bad 1 S. 1984. The Ijaradars, however, assigned the 'ijara' to Heera Chand for the same period on payment of Rs. 4,525/-per year. This Heera Chand held the 'ijara' for a period of about 5 years and then assigned it to Mishri Mal defendant No. 1 and Rawat Singh defendant No. 2 for the period from Sawan Sud 1 S. 1989 to Asadh Sud 15 S. 1993 on payment of Rs. 4,525/-per year. Ex. P.5 is the deed of assignment and is dated April 20, 1933. It was agreed in terms of that assignment that the 'Ijara' money would be payable in two instalments, every year, the first instalment of Rs. 2,525/- being payable on Maha Sud 15 and the other Instalment of the balance of Rs. 2,000/- being payable on Jeth Sud 15. It was also stipulated that if the payment was not made in time, interest would be chargeable at about 6 per cent per annum. For purposes of this assignment, defendants Nos. 3 to 11 stood sureties on behalf of the said Mishri Mal and Rawat Singh for the due performance of the conditions of the deed of assignment, which was duly registered.
It appears that Mishri Mal and Rawat Singh failed to pay the 'ijara' money for Smts. 1989 and 1990 and a suit was brought by Heera Chand against them, as well as against their sureties, and it was decreed by consent, of parties on July 19, 1934. It is not in dispute between the parties that the claim under that decree was duly paid up. It so happened, however, that there was again a default in the payment of the 'ijara' money for Smts. 1901, 1992 and 1993 and the claim in that respect amounted to Rs. 9,100/-. As Rs. 1,000/- were held in deposit by Heera Chand on behalf of Mishri Mal and Rawat Singh, the amount due on account of the 'ijara' came to Rs. 8,100/-. Heera Chand died in the meantime. Of his three sons, Nemi Chand defendant No. 12 was a major while Hasti Mal defendant No. 13 and Champa Lal defendant No. 14 were minors. They were liable to pay some debt to M/s. Jawan Mal Malaji of Bombay and defendant Nemi Chand therefore assigned the aforesaid debt of Rs. 8,100/-, along with some other debts, to the firm of M/s. Jawan Mal Malaji on Bhadwa Bad 9 S. 1997, corresponding to August 27, 1940, by a deed of assignment (Ex. P.1). Under that title, the said firm of M/s. Jawan Mal Malaji instituted a suit against all the defendants on, February 18, 1941 for the recovery of the sum of Rs. 8,100/-, along with Rs. 400/- on account of interest, totalling to Rs. 8,500/-.
It would thus appear that there were three sets of defendants in this case. Mishri Mal defendant No. 1 and Rawat Singh defendant No. 2 form the first set of defendants. They were the principal debtors inasmuch as the assignment of the 'ijara' was made in their favour on April 20, 1933 by the registered assignment deed Ex. P.5 and it is they who were alleged to have committed the default in payment of the 'ijara' money. The second set consisted of defendants Nos. 3 to 11 who, as has been mentioned earlier, were the sureties of the first two defendants for the assignment referred to in Ex. P.5, The third set of defendants consisted of Nemi Chand defendant No. 12, Hasti Mal defendant No. 13 and Champa Lal defendant No. 14, the three sons of Heera Chand, for It were they who assigned the debt of Rs. 8,100/- to the plaintiffs on the assurance that it was payable to them by defendants Nos. 1 to 11. It is in these circumstances that the plaintiffs prayed for a decree against the defendants and also prayed that the decretal amount may be ordered to be realised from defendants Nos. 1 to 11 in the first instance and, in the alternative, from defendants Nos. 12 to 14.
3. It appears that the suit proceeded ex parte against defendant No. 2 and was contested by defendants Nos. 1, 3, 4, 5, 6, 7, 8, 10, 13, and 14. Mishri Mal defendant No. 1 took three principal pleas in his written statement. Firstly, he pleaded that he was the Kamdar of Thikana Meda, while Rawat Singh defendant No. 2 was the Hawaldar of that Thikana, and that they were men of meagre means who could not afford to take the 'ijara' at all. He pleaded that the assignment in their favour was merely a 'benami' transaction, the real ijaradar being Thakur Kishan Singh, the Jagirdar of Meda. Explaining this defence, Mishri Mal further pleaded that when the original assignee Heera Chand had enjoyed the 'Ijara' for the first 5 years, he decided to transfer it to Maharaj Guman Singh for the remaining period of 5 years. The Thakur of Meda did not like this move as the transfer would have created the interest of another Jagirdar in a village of his Jagir.
The Thakur was however suffering from certain disabilities on account of the provisions of Section 9 of the Marwar Jagirdar Encumbered Estate Act, 1922, and could not enter, into a contract with Heera Chand for the transfer of the 'ijaradari' to himself as his estate was then under the management of the Haisiyat Court. He therefore thought of a device, persuaded Maharaj Guman Singh to withdraw from the field and secured the benami transfer of the 'Ijara' from Heera Chand in the name of defendants Mishri Mal and Rawat Singh who were the employees of his Thikana. To lend assurance to the soundness of the transaction, the Thakur, it was alleged, persuaded defendants Nos. 3 to 11 to be sureties for the due performance of the terms of the deed of transfer (Ex. P.5) and also delivered his gold bangle and his gun by way of further security. Thus one of the important pleas of defendant Mishri Mal was that he was a benamidar for Thakur Kishan Singh of Meda. Secondly, he pleaded that the entire income of village Sewaj for the period of 5 years was actually realised by defendants Nos. 12 to 14 and that no liability could therefore be fastened on the other defendants at all. Lastly, he pleaded that the 'ijara' money for 8, 1991 bad become time barred. Much to the same effect was the defence of defendants Nos. 3, 4, 5, 6, 7, 8 and 10.
Hasti Mal defendant No. 13 denied all liability and pleaded that his brother Nemi Chand had no right to make any assignment in favour of the plaintiffs, and a similar plea was taken by Champa Lal defendant No. 14. No written statement was filed by Nemi Chand defendant No. 12. The plaintiffs pleaded by way of replication that defendants Nos. 12 to 14 were members of a joint Hindu family of which defendant No. 12 was the manager and that there was no force in the plea taken by defendants Nos. 13 and 14.
4. As many as 14 issues were framed in the trial court. By his judgment dated August 25, 1956 the learned Civil Judge, Sojat, who ultimately tried the suit, held that the plaintiffs were entitled to a decree for Rs. 8,500/- with costs, only against defendants Nos. 12 to 14 and that the last two of these defendants would be liable to the extent of the property received by them from the joint family or from defendant Nemi Chand. Thus the suit was dismissed against defendants Nos. 1 to 11. An appeal was preferred by defendants Nos. 12 to 14 be-fore the District Judge of Pali who allowed it in part toy exonerating appellants Hasti Mal (defendant No. 13) and Champa Lal (defendant No. 14) from all liability for the plaintiffs' claim, reducing the decretal amount by Rs. 3,710/- and Rs. 2,025/-on account of principal and Rs. 200/- on account of interest, and confining the liability under the decree to Nemi Chand defendant No. 12. There was a crows-objection also in that appeal and it was allowed to the extent that only one set of costs was allowed, but the plaintiffs were directed to pay the costs of defendants Nos. 13 and 14.
5. It is in these circumstances that two appeals have been preferred against the judgment and decree of the tower appellate Court. Second Appeal No. 277 of 1908 has been preferred by Nemi Chand defendant No. 12, while Second Appeal No. 449 of 1958 has been preferred by the plaintiffs. While Nemi Chand has prayed for the dismissal of the suit in its entirety, the plaintiffs have prayed that their suit should be decreed for the full amount claimed in the plaint and that Hasti Mal defendant No. 13 and Champa Lal defendant No. 14 should also be made liable under the decree along with Nemi Chand defendant No. 12 or, in the alternative, that a decree may be passed against defendants Nos. 1 to 11 or their legal representatives.
6. It so happened, however, that after the filing of these two appeals Mishri Mal defendant No. 1 died on July 26, 1959 and it is not in dispute that his legal representatives were duly brought on the record in appeal No. 449 of 1958 within time. But the application for bringing the legal representatives on record in appeal No. 277 of 1958 was filed beyond time and was rejected by an order of this Court dated November 27, 1963. The first question which arises for consideration therefore is whether appeal No. 277 deserves to be dismissed on this account. A preliminary objection has been taken by Mr. Jain on behalf of Bhasi Ram (defendant No. 10), and by Mr. Parakh on behalf of the plaintiffs, that the appeal has abated against Mishri Mal and that as there is a joint decree in favour of defendants Nos. 1 to 11, the whole of the appeal must be dismissed for that reason. Learned counsel have argued that if this is not done and the appeal is disposed of on its merits, there would be a risk of two contradictory decrees in respect of the same subject-matter of dispute between the parties.
Mr. Jain has supported his argument by a reference to Jogesh Chandra v. Bama Sundari Bebi, AIR 1917 Cal 647, Chandra Kumar Guha v. Elahi Buksha, AIR 1926 Cal 667, Apurba Krishna v. Ram Bahadur, AIR 1936 Pat 191, Ghulam Abbas v. Safdar Jah Zahid Ali Mirza, AIR 1941 Oudh 219, Chhogalal Meghraj Maheshri v. Fakirji, AIR 1954 Nag 279, Padma Ram v. Surja ILR (1960) 10 Raj 573: (AIR 1961 Raj 72, Jawari Mal v. Mangilal, ILR (1961) 11 Raj 793, Gobind Lal v. Bandhu Ram Kahar, AIR 1961 Pat 240, Kedar Nath v. L. Manak Chand, AIR 1961 Pun1 555, State of Punjab v. Nathu Ram, AIR 1962 SC 89 and Bhooramal v. Chunilal, ILR (1963) 13 Raj 1150. Further, the learned counsel has argued that for purposes of deciding the question of abatement of appeal No. 277 of 1958 it would not avail the appellant to contend that there is the other appeal (No. 449 of 1958) in which all the parties have been duly impleaded. This latter contention is sought to be supported by reference to Shankaranaraina Saralaya v. Laxmi Hengsu, AIR 1931 Mad 277 and Punjab State v. Sardar Atma Singh, AIR 1963 Punj 113. While generally supporting the arguments of Mr. Jain on this aspect of the case, Mr. Parakh has placed particular reliance on Nathu Ham's case, AIR 1962 SC 89.
On the other hand, Mr. Vyas has strenuously urged that since Mishri Mal defendant No. 1 and Rawat Singh defendant No. 2 were in the position of joint promisors for purposes of the liability for the 'ijara', they were liable to be sued jointly as well as severally and that when it was open to the plaintiffs to sue one of them for the whole liability, it would be futile to argue that the failure to implead the other in the appeal would lead to its dismissal as a whole. Further, the learned counsel has argued that there can be no question of contradictory decrees in this case when the deceased defendant Mishri Mal was not a necessary party to the suit, learned counsel has supported his argument by contending that even if the appeal is allowed and Rawat Singh defendant No. 2 is held liable for the payment of the entire 'ijara' money to the plaintiffs, inclusive of the share payable by Mishri Mal, the abatement of the appeal as against Mishri Mal would not prevent Rawat Singh from suing him for contribution. The learned counsel has referred to Sections 43 and 44 of the Contract Act in this respect. Reliance has also been placed by him on Sant Singh v. Gulab Singh, AIR 1928 Lah 572 (FB), Nur Din v. Allah Ditta, AIR 1932 Lah 419, Mahanth Singh v. U. Ba YI, AIR 1939 PC 110, Narayan Krishnarao v. Badridas, AIR 1945 Nag 271, Ramkrishen v. Ranga Krishtiah, AIR 1954 Hyd 44 and Ganeshmull Sahas-mull v. Sohanlal Punamchand, AIR 1956 Nag 111. Further, the learned counsel has argued that Nathu Ram's case, AIR 1962 SC 89 cannot avail the respondents because the decree under appeal cannot toe said to be a joint decree.
7. Wow Rule 4 of Order 22 C. P. C. deals with abatement of suits. The rule provides that where there are two or more defendants, and one of them dies, the suit would abate against the deceased defendant for failure to bring his legal representative on the record within the prescribed time limit If 'the right to sue does not survive against the surviving defendant or defendants alone'. By virtue of the provisions of Rule 11 of the same Order this provision applies to appeals as well, except that the word 'plaintiff' is to be deemed to include an appellant the word 'defendant' a respondent and the word 'suit' an appeal. It is not in dispute, however, that no application was made to cause the legal representative of deceased Mishri Mal to be made a party to the appeal within the prescribed time limit and there is also no dispute between the learned counsel for the parties that the appeal has abated against the deceased Mishri Mal.
8. The question is whether, in the absence of Mishri Mal's legal representative, the appeal could be said to be properly constituted or whether it deserves to be dismissed as it is not possible to hear it in the absence of a necessary party. The decision on the point would depend on the nature of the right or relief claimed in the appeal, for it cannot be gainsaid that if due to the partial abatement of the appeal against Mishri Mal it becomes' impossible to proceed with its final adjudication, the entire appeal must fall. The question whether it is possible to arrive at such a final adjudication would, in its turn, depend on the question whether the interests of the deceased respondent could be separated from that of the others. This has to be so because, for reasons which are too obvious to require a mention, the rights of the legal representative of the deceased respondent cannot be allowed to be adversely affected by any adjudication between the remaining parties. Thus, if in a given case, the right or the relief claimed in an appeal is indivisible in the sense that it permeates all the respondents jointly, whether in their favour or against them, the appeal must fail if there is an abatement against one such, respondent.
9. In this respect the question of abatement of an appeal is somewhat more complicated than the question of abatement of a suit, for the question of abatement of an appeal cannot be examined solely with reference to the relief claimed in the suit and it is much more Important to look to the nature of the relief awarded by the decree under appeal. The reason is that it may, in some cases, become impossible to proceed with an appeal against the remaining respondents for certain reasons e.g. want of necessary parties, the possibility of having two inconsistent or contradictory decrees in respect of the same suit, the possibility that even if a decree is given it may not be effectually executed because of the rights that may have enured to the benefit of the legal representative of the deceased respondent and, in a given case, such an Impossibility may arise because of the danger of coming into conflict with come other recognised principle of law. The matter has been set beyond controversy by the judgment of their Lordships of the Supreme Court in Nathu Ram's case, AIR 1962 S C 89. While observing that the answer to the question whether a court can deal with such matters or riot would depend on the facts of each case and therefore 'no exhaustive statement can be made about the circumstances when this is possible or is not possible', their Lordships have laid down the following tests by way of considerations which ordinarily weigh with the court in deciding the question of abatement, --
'Courts will not proceed with an appeal (a) when the success of the appeal may lead to the Court's coming to a decision which be in conflict with the decision between the appellant and the deceased respondent and therefore which would lead to the Court's passing a decree which will be contradictory to the decree which had become final with respect to the same subject-matter between the appellant and the deceased respondent; (b) when the appellant could not have brought the action for the necessary relief against those respondents alone who are still before the Court and (c) when the decree against the surviving respondents if the appeal succeeds, be ineffective, that is to say, it could not be successfully executed.'
The test referred to at (b) above is no doubt fulfilled in the present case the liability of defendants Mishri Mal and Rawat singh, it is admitted, was both joint and several, as they were co-promisors under the assignment which was made on April 20, 1933 by agreement Ex. P. 5. So also, the test at (c) can be said to be fulfilled because there is no reason why, in case the appeal is allowed, the appellate decree could not be successfully executed against the surviving respondents. It therefore remains to consider whether this appeal stands the test mentioned at (a) above. For this purpose it is necessary to examine two important points. Firstly, it has to be considered whether the interests of the defendants are joint and indivisible. Secondly, it has to be considered whether the interest awarded or created by the decree under appeal is, in substance, a joint and indivisible interest. As has been stated, both Mishri Mal and Rawat Singh were joint promisors by virtue of agreement Ex. P. 5 and their liability was therefore both joint and several. Their interests could not therefore be said to be joint and indivisible so far as their liability in the suit was concerned, but it has to be seen whether a change has been created, even in respect of such a liability, by virtue of the decree in the suit, and that distinction is important for, while it may be enough to decide the nature of the abatement in a suit by reference to the relief claimed therein, in the case of an appeal the decision depends upon the nature of the relief awarded by the decree. Thus if there are two joint promisors against whom a suit is raised by the promisees jointly, and not jointly and severally, and the suit is dismissed, it would not avail the appellant, in a case like the present to take shelter under the plea that the initial liability of the defendants was both joint and several and that the same should continue to be the position even after the award of the decree dismissing the suit. This is so because once the plaintiff exercises the option of claiming a joint relief in a suit against two or more joint promisors, he cannot then contend in appeal, on the dismissal of the suit, thattheir liability is not only joint but also Several and that he could proceed against one of the defendants on the abatement of his appeal against the other. I am fortified in this view by the decision in Kali Narayan Roy v. Haran Chandra Ghose, 62 Ind Cas 714 (Cal).
10. The question then is whether the interestcreated in favour of the defendants by virtue ofthe decree in question is a joint and indivisibleInterest in substance. The answer to it willdepend on the facts of the case and it would besufficient to recapitulate some of them which havea direct bearing. In their suit, the plaintiffs prayedfor the award of a decree for Rs. 8,500/- againstall the defendants with pendente lite and futureinterest. It was further prayed that, in the firstinstance, the decretal amount may be ordered tobe realised from defendants Nos. 1 to 11 and that,If this was not possible, or if a lesser amount wasdecreed against those defendants, the whole of thedecree may be made payable by defendants Nos. 12to 14. Then there was also a prayer for theaward of costs. However, by the decree which isnow under appeal, a decree for Rs. 4,095/- hasbeen awarded against Nemi Chand defendantNo. 12 and the plaintiffs' suit has been dismissed.against defendants Nos. 1 to 11 and defendants Nos.13 and 14. it has also been decreed that the plaintiffs shall pay one set of costs jointly to defendantsNos. 1 to 11 and another set of costs to defendants Nos. 13 to 14. Thus it is obvious that the decree of the learned Judge ofthe lower appellate court is a joint decree not only in favour of Mishri Mal defendant No. 1 and RawatSingh defendant No. 2 but also in favour of defendants Nos. a to 11 inasmuch as It has been decreed that none of them is liable to pay any money tothe plaintiffs in regard to the subject-matter ofthe suit and that they are all jointly entitled to oneset of costs from the plaintiffs. In their secondappeal the plaintiffs have claimed that the judgmentand decree of the learned District Judge should beset aside and the suit 'decreed with costs throughout.This means that while the subsisting decree is clearly to the effect that defendant Mishri Mal shall not be liable in respect of the subject-matter of thesuit and shall, on the other hand, be entitled tocosts along with defendants Nos. 2 to 11, and thatdecree has become final in favour of the legal representative of Mishri Mal for failure to bring himon the record and the consequent abatement ofthe suit, the appellants, all the same, seek to challenge that decree by assailing it as a whole, andif they ore allowed to be heard that might giverise to two contradictory decrees vis-a-vis the legalrepresentative of defendant Mishri Mal. In thosefacts and circumstances, I have no doubt that thedecree under appeal is a joint and indivisibledecree in favour of defendants Nos. 1 to 11. Theargument of Mr. Vyas that the decree is not ajoint decree is not correct for a decree which hasbeen passed jointly in favour of more persons thanone is undoubtedly a joint decree. Thus a decree inwhich the rights of several parties have been determined by one and the same judgment and their respectivesnares have not been apportioned or specified onthe face of the decree, either expressly or by necessary implication, that is a joint decree, as has been held in Chandra Chur Deo v. Mt. Shyam Kumari, AIR 1932 Pat 261 as well.
11. What then is the effect of such a decreeWhere the appeal has abated, against one of thejoint decree-Holders? On this aspect of the case as well the following observations of their Lordships of the Supreme Court in Nathu Ram's case AIR 1962 S C 89 are directly in point, --
'There has been no divergence between theCourts about the Court's proceeding with theappeal between the respondents other than thedeceased respondents when the decree inappeal was not a joint decree infavour of till the respondents. The abatement of the appeal against the deceased respondent, in such a case, would make the decree in hisfavour alone final, and this can, in no circumstances, have a repercussion on the decision of thecontroversy between the appellant and the otherdecree-holders or on the execution of the ultimatedecree between them.
The difficulty arises always when there is a joint decree. Here again, the consensus of opinion is that if the decree is Joint and Indivisible, the appeal, against the other respondents also will not be proceeded with and will have to be dismissed as a result of the abatement of the appeal against the deceased respondent.'
So where a decree is joint and indivisible, as in this case, the appeal cannot be proceeded with against the remaining respondents as well and will have to be dismissed. A similar view has been taken in Jogesh Chandra Chakrabutty's case, AIR 1917 Cal 647, Apurba Krishna Mitra's case, AIR 1936 Pat 191, Chhoglal Meghraj Maheshri's case, AIR 1954 Nag 279. Gobind Lal's case, AIR 1961 Pat 240 and Kedar Nath's case, AIR 1961 Punj 555.
12. It now remains to refer to the cases cited by Mr. Vyas on behalf of the appellant. Of these, Sant Singh's AIR 1928 Lah 572 (FB) was a case in which the shares of the defendants-vendees were defined so that there were virtually four deals, each conveying one-fourth share of the property to the four vendees respectively and it was for that reason that the rights of the deceased and the surviving respondents were held to be separate and separable and there was no likelihood of a conflict between the decrees passed in respect of their respective rights and the appeal was heard and decided. In Narayan Krishnarao's case, AIR 1945 Nag 271 a suit was brought on account of arrears of rent against tenants who were liable jointly and severally for the same and it was held that the entire appeal had not abated because each tenant was liable jointly and severally. It would be sufficient to say that no reason has been given for this view and it is difficult to appreciate the conclusion arrived at by the learned Judge. Ramkrishen's case, AIR 1954 Hyd. 44 related to the abatement of the suit and is therefore not directly in point. So also, Ganeshmull Sahasmull's case, AIR 1956 Nag 111 was based on different facts inasmuch as the suit in it was brought for joint and several decrees against the defendants who were joint promisors and joint and several decrees were actually passed against them. The decisions in AIR 1932 Lah. 419 and AIR 1939 P C 110 related to the liability of the surety and are therefore of no direct relevance for purposes of the present controversy. It would thus appear that the cases cited toy Mr. Vyas cannot lead to an inference other than that arrived at by me for the dismissal of appeal No. 277 of 1958 of defendant Nemi Chand and I order accordingly.
13. Mention may, however, be made of one more point before leaving this aspect of the case. As has been stated, there is no defect in the constitution of the other appeal No. 449 of 1958 in which the plaintiffs are the appellants, for the legal representatives of respondent Mishri Mal have been brought on the record in time, tout this cannot save the dismissal of appeal No. 277 of 1958. Shankaranaraina Saralaya's AIR 1931 Mad 277 and Sardar Atma Singh's cases AIR 1963 Punj 113 are tooth authorities in support of this view. In fact Mr. Vyas has himself not argued that it is open to him to take the benefit of that appeal for purposes of this appeal.
14. The other appeal (No. 449 of 1958) is of the plaintiffs-appellants. In it they have prayed for (i) the restoration of the cut of Rs. 3,710/- (ii) the grant of a decree against Hasti Mal defendant No. 13 and Champa Lal defendant No. 14, (iii) the restoration of the sum of Rs. 2,025/- which was held to be barred by limitation, and (iv) the award of a decree against defendants Nos. 1 to 11 if the appeal is not allowed against defendants Nos. 13 and 14.
15. It will be recalled that while the learned trial Judge granted a decree for the entire sum of Rs. 8,100/- along with Rs. 400/- on account of Interest, the learned District Judge disallowed the plaintiffs' claim for the recovery of Rs. 1,478/-Rs. 1,032/- and Rs. 1,200/- (totalling to Rs. 3,710/-) although those items formed part of the assets amounting to Rs. 9,800/- which were transferred under document Ex. P. 1 in favour of the plaintiffs. The learned District Judge did so because he reached the conclusion that the contract was a contingent contract inasmuch as it was the intention of the parties that the plaintiffs should first bring suits against the debtors who owed Rs. 1,478/-, Rs. 1,032/- and Rs. 1,200/- to Heera Chand before proceeding to realise Rs. 8,100/- from the assignors. He accordingly directed that these three amounts totalling to Rs. 3,710/- shall be treated as having been realised by the plaintiffs from the debtors and that after making a deduction of Rs. 3,710/- from the sum of Rs. 9,800/- the plain, tiffs would be entitled to recover Rs. 6,110/-. A slight arithmetical mistake appears to have been made by the learned Judge in working out the balance at Rs. 6,110/- as the balance payable really comes to Rs. 6,090/-.
The main dispute however is that it has been strenuously contended by Mr. Parakh that no such deduction was permissible because the contract was not a contingent contract and also because it was not pleaded in the trial court that the contract depended on any contingency. It has been pointed out that the parties did not even join issue on this point. Further, it has been argued that the learned District Judge erred in allowing this question to be raised for the first time in appeal, ignoring the fact that it was a mixed question of law and fact. The contention of the learned counsel is that if a plea had been raised in the trial court that the contract was a contingent contract so that the liability of defendants Nos. 12 to 14 did not arise until after they had made efforts to realise the moneys recoverable from the other debtors, the plaintiffs would have led satisfactory evidence to prove that they made such an attempt and were entitled to raise the present suit. The learned counsel has, in this connection, invited, attention to Kalyanpur Lime Works Ltd. v. State of Bihar, AIR 1954 SC 165.
On the other hand, Mr. Vyas has argued that the contract in question is clearly a contingent contract and that it is the requirement of Section 32 of the Contract Act that a contingent contract shall not be enforced by law unless and until the event on which the contract is contingent has happened. According to the learned counsel, It was the duty of the plaintiffs to plead the circumstances under, which they claimed that they could file their suit when the contract was a contingent contract and that since the plaintiffs failed to do so, they could not be said to have disclosed a cause of action for the suit which deserved to toe dismissed for that reason alone. Further, Mr. Vyas has argued that the plea that the contract was a contingent contract is a plea based on the construction of agreement EX. P. 1, which is the basis of the suit, and that it was therefore open to the appellate court to allow such a plea to toe raised even though it had not been taken in the trial court. This latter argument is sought to be supported by reference to Keshavlal Lallubhai Patel v. Lalbhai Trikumlal Mills Ltd., AIR 1958 S C 512. Lastly, the learned counsel has argued that Section 32 of the Contract Act casts a duty on the court to dismiss a suit based on a contingent contract if it does not disclose that the uncertain future event on which the contract was contingent had happened. The learned counsel has gone to the extent of arguing that the requirement of Section 32 in this respect is similar to that of Section 3 of the Limitation Act.
16. I do not think it necessary to go into the question whether the contract in question was a contingent contract, because the record of the case leaves no room for doubt that no such plea had been taken in the trial court. Then there is the further fact that the parties did not join Issue on, that point and it was not raised even during the course of the arguments in the trial court. A plea that a contract is a contingent contract has to toe alleged and proved by the party who sets it up and it is futile to argue that it is the bounden duty of the trial court to go into a matter like this suo motu. If authority is needed for this proposition, I would refer to Firm Ganesh Lal Kundan Lal v. Firm Debi Sahia Gulzari Mal, AIR 1927 Lah 481 in which it was held by a division bench of the Lahore High Court that it was for the party who alleged that the contract was conditional on the happening of a certain contingency to prove its contention by clear and unequivocal evidence. It is true that Section 32 of the Contract Act provides that contingent contracts to do or not to do anything it' an uncertain future event happens 'cannot be enforced by law unless and until that event has happened' but this cannot justify the argument that if a suit relates to a contingent contract but the contingency is not pleaded, it is still the duty of the trial court to dismiss the suit on the ground that the event on which the fulfilment of the contract was dependent had not been shown to have taken place. There is no real affinity between Section 32 of the Contract Act and Section 3 of the Limitation Act in this respect because while the latter provision casts a duty on the court concerned to dismiss the suit, appeal or application if it is filed after the prescribed period of limitation 'although limitation has not been set up as a defence,' there is 'no such provision' in Section 32 of the Contract Act. All that the said Section 32 requires is that a contingent contract shall not be enforced by law unless and until the event on which it is dependent has happened and it is therefore necessary that the party who claims that the suit is premature, or that it has become void as the event has become Impossible, should raise a plea to that effect and have the matter tried not only as a question of law but also as a question of fact. This has not been done in the present case and in allowing the plea to be raised for the first time in the appeal before him as a pure question of law, the learned District Judge committed a serious error and thereby prejudiced the plaintiffs' case for It might well be, as their learned counsel has argued, that they might have been successful in proving that the event on which the contract is said to be dependent had really taken place. In this view of the matter, it is not necessary for me to go into the merits of the argument as to whether the contract in question was a contingent contract or not, for I have no doubt that the learned District Judge erred in allowing such a question to be raised for the first time in appeal in spite of the protest made by the plaintiffs, who are the appellants before me. It would follow, therefore, that the learned District Judge was clearly in error in ordering the reduction of Rs. 3,710/- from the plaintiffs' claim and that cut is hereby restored.
17. It has next been submitted by Mr. Parakh that the learned District Judge committed another error in allowing the appeal of Hasti Mal defendant No. 13 and Champa Lal defendant No. 14 on the ground that they were minors and their eldest brother Nemi Chand (defendant No. 12) did not have the authority, under the law, to assign their claim as creditors in favour of the plaintiffs without legal necessity. The learned counsel has urged that the alienation was for legal necessity inasmuch as it was made for the purpose of squaring up a debt of the father, for the payment of which they had a pious obligation, and also because the alienation was beneficial to the estate Inasmuch as it had the effect of saving the minors from any further liability to pay interest on the debt. According to the learned counsel, defendant Nemi Chand had the authority, as manager of the coparcenery property, to make the alienation in question, and he has sought to support his argument by reference to Luhar Amrit Lal Nagji v. Doshi Jayantilal Jethalal, AIR 1960 SC 964. There is, however, no force in this submission. It is well settled that the manager of a joint Hindu family, other than the father, can alienate the joint family property and bind the interests of even the minor coparceners in that property only if the alienation is made for legal necessity or for the benefit of the estate, or when there is no other reasonable course open to him. It is equally well-settled that payment of a debt incurred for family business or other necessary purpose is a family necessity but in the case of a manager other than a father it is not enough merely to show that the debt is a pre-existing debt.
A similar point came up for consideration before a division bench of this Court in Bithal Das v. Chand Ratan, ILR (1955) 5 Raj 278: (AIR 1955 Raj 39) in which it was held that the manager of a coparcenery other than the father cannot alienate the joint family estate simply because he wants to pay off the antecedent debt of the father and that it has to be shown, for the purpose of binding the minor members, that there was a necessity to pay up the father's debt and that necessity was of a type which, entitled either a certain degree of pressure on the estate, some danger to be averted or some benefit to be conferred which showed that the alienation was eminently desirable or urgently called for to ease the situation existing on the date of the transfer. No such legal necessity has been shown to exist in the present case and the mere fact that the repayment of the debt would have the effect of saving the estate from its liability to pay further interest, cannot be said to amount to legal necessity so as to bind the minors. Luhar Amrit Lal Nagji's case, AIR 1960 SC 964 cannot avail the appellants as it was a case of an alienation by the father. The learned District Judge was therefore justified in holding that the alienation in dispute was not binding on defendants Hasti Mal and Champa Lal and his finding does not call for any interference.
18. The third point which has been urged in this appeal is that the claim for the recovery of Rs. 2,025/- should not have been disallowed by the learned District Judge as it did not relate to any instalment which bad become barred by limitation. The learned District Judge was under the impression that as the first instalment of Rs. 2,025/-feel due on Maha Sud 15, S. 1991 and the suit was brought on Phalgun Bad 7, S. 1997, it was barred by limitation under Article 116 of the Marwar Limitation Act. It has been urged by Mr. Parakh that the learned District Judge disallowed this amount under a misapprehension inasmuch as the plaintiffs did not seek to recover the first instalment of Maha Sud 15, S. 1991 as they had duly realised it in time and merely sought to recover the balance which remained payable under the agreement. Mr. Vyas has frankly conceded that he cannot support the judgment of the learned District Judge on this point. The finding of the learned District Judge is obviously based on a mis-understanding of the plaintiffs' claim and is therefore set aside with the direction that the sum of Rs. 2,025/- shall also be payable to the plaintiffs.
19. The remaining prayer in the appeal is for the grant of a decree against defendants Nos. 1 to 11 in the alternative, i.e. in case this Court does not grant a decree against defendants Nos. 13, and 14. Mr. Parakh, learned counsel for the appellants has, however, frankly conceded that as the trial court had exonerated defendants Nos. 1 to 11 from all liability in the suit and the plaintiffs did not prefer an appeal against that decree, he would not press the claim for the award of a decree against those defendants in this second appeal.
20. The result therefore is that so far as appeal No. 449 of 1958 is concerned the sum of Rs. 3,710/- as well as the other sum of Rs. 2,025/-dedueted by the learned Judge of the lower appellate court from the decree of the trial court are both held to be payable to the plaintiffs so that that suit is decreed for the sum of Rs. 8,100/-along with Rs. 400/- by way of interest for which there is no dispute whatever. To this extent the appeal is allowed and the decree of the learned District Judge is modified. The appeal however fails against Hasti Mal defendant No. 13 and Champa Lal defendant No. 14, as well as against defendants Nos. 1 to 11. The other appeal No. 277 of 1958 is dismissed. In the circumstances of this case, the parties are left to bear their own costs in both the appeals.