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Thakur Madhosingh Vs. Jagdambalal and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtRajasthan High Court
Decided On
Case NumberCivil Second Appeal No. 695 of 1959
Judge
Reported inAIR1960Raj237
ActsContract Act, 1872 - Sections 2 and 25; Code of Criminal Procedure (CrPC) - Sections 145; Succession Act, 1925 - Sections 283
AppellantThakur Madhosingh
RespondentJagdambalal and anr.
Advocates: Hastimal, Adv.
DispositionAppeal dismissed
Cases ReferredNathu v. Wali Mahammad
Excerpt:
.....agreement. again whether sadasukh had or had not a valid title to the house,,there were good chances of the defendants becoming successful in proceedings under section 145 cr. on the basis of long as well as immediate possession. the very fact that there is a mention in the application of some thing relating to the title of sadasukh in the property clearly proves the application to be an inspired one. 14. in my opinion, the facts which have been held proved clearly show that the plaintiff received certain advantages mentioned above by the compromise and the proceedings instituted by jagdambalal and mangilal pending in court had good chances of success, but for the compromise......in the property. it was alleged that the plaintiff thakur madhosingh was no party either to the probate proceedings or proceedings under section 145 cr. p. c., but he approached the defendants to settle their claims and these claims were settled as per agreement of relinquishment (ex. 3) and the payment of. rs. 3,200/- was not without consideration.they explained the document ex. 2 to have been executed according to the dictation of the plaintiff as they were not interested in the property after the compromise. the plaintiff led oral evidence to prove that the possession of sadasukh was only permissive. the learned civil judge, jodhpur, who tried the case, by decision of 20th december, 1957 dismissed the suit. his findings were:(1) that the delivery of the possession by the.....
Judgment:

K.L. Bapna, J.

1. This is a second appeal by the plaintiff. There is a Haveli in Jodhpur City known as Bhikamkore-ki-Haveli and at one time belonged to the Thakurs of Bhikamkore, Pali, Bhawad and Birloka jointly. One Sadasukh was in possession of the Haveli. On 18th April. 1950, he executed a will in which he described himself as the owner of this Haveli and purported to bequeath the same to Jagdambalal and Mangilal, who were his relations. Sadasukh died on 12th December, 1951. Jagdambalal and Mangilal filed an application before the District Judge for grant of probate of the will on 15th September, 1952. Jagdambalal and Mangilal also took steps to protect their possession by instituting proceedings under Section 145 Cr. P. C. on 27th December, 1952 against certain persons who were partisans of the aforesaid Thakurs.

2. Some time after these proceedings had been launched, the appellant Thakur Macthosing obtained sale deeds from the Thakurs of Bhikamkore, Pali, Bhawad and Birloka in his favour. On 17th July, 1953 Jagdambalal and Mangilal executed a document relinquishing their claims to the property known as Bhikamkore-ki-Haveli for the consideration of Rs. 3,200/- received from Thakur Madhosingh. The relevant portion of the document, when translated into English, is as follows:

'Document of relinquishment executed by Jagdambalal and Mangilal in favour of Madhosingh. Whereas a Haveli of the boundaries noted below situated in Jodhpur City belonged to the Thikanas of Bhikamkore, Pali, Bhawad and Birloka and which you have purchased from the said Thikanas;

And whereas our maternal uncle Sadasukh Gopa used to live in it and he had bequeathed the said Haveli to us and our application for obtaining probate is pending in the Court of the District Judge;

And whereas another proceeding under Section 145 Cr. P. C. is pending in the Court of the City Magistrate, Jodhpur in respect of the same Haveli; And whereas your case is that the deceased Sadasukh was only permitted to live in the house for the purpose of keeping guard over the Haveli, but our case is that Sadasukh was the owner of the Haveli;

And whereas we have no document of title in our possession;

And whereas both you and I have agreed to put an end to the dispute;

Therefore, we have withdrawn from, the possession of the Haveli and have put you in possession of the entire Haveli and hereby relinquish, all the rights of Sadasukh in the Haveli which we had acquired under the will and hereby declare that from today, we shall have no right whatsoever in the Haveli and you will remain the full owner of the said Haveli and in consideration of this relinquishment and for withdrawing the application for obtaining probate and for withdrawing the proceedings under Section 145 Cr. P. C. against the persons from whom you had purchased, we have received Rs. 3,200/- in cash from you.' This is Ex. P. 3.

3. On the same day an application was filed before the District Judge for withdrawal of the probate in the following terms:

'We Jagdambalal and Mangilal petitioners submit that we had submitted an application for obtaining probate of the will of Sadasukh on the understanding that Sadasukh was the owner of the property mentioned in the will. Now, we have satisfied ourselves that the property was not of Sadasukh. We, therefore, withdraw our application for obtaining the probate, which application may kindly be dismissed.' This is Ex. 2.

4. Thakur Madhosingh instituted the present suit for recovery of Rs. 3,200/- paid by him for obtaining deed of relinquisliment of 7th July, 1953, on the allegation that the said Jagdambalal and Mangilal defendants knew perfectly well at the time of compromise that Sadasukh and through him they themselves had no right or interest in the property and the plaintiff parted with this money for no consideration but he was obliged to give the money as the defendants had threatened to ruin him by litigation and gave put that the will not permit him to acquire possession of the Haveli. He relied on the aforesaid document Ex. 2 as also a document Ex. 4 alleged to have been executed by Sadasukh in his life time in which the Haveli was described to be 'Bhikamkore-ki-Haveli.'

5. The defendants Jagdambalal and Mangilal pleaded that Sadasukh had been asserting his right of ownership during his life time and they had no reason to think that Sadasukh had no right or interest in the property. It was alleged that the plaintiff Thakur Madhosingh was no party either to the probate proceedings or proceedings under Section 145 Cr. P. C., but he approached the defendants to settle their claims and these claims were settled as per agreement of relinquishment (Ex. 3) and the payment of. Rs. 3,200/- was not without consideration.

They explained the document Ex. 2 to have been executed according to the dictation of the plaintiff as they were not interested in the property after the compromise. The plaintiff led oral evidence to prove that the possession of Sadasukh was only permissive. The learned Civil Judge, Jodhpur, who tried the case, by decision of 20th December, 1957 dismissed the suit. His findings were:

(1) That the delivery of the possession by the defendants, withdrawing from their possession over the Haveli, the withdrawal of the probate proceedings and the criminal proceedings under Section 145 Cr. P. C. were sufficient consideration for payment of Rs. 3,200/-;

(2) That, Sadasukh had been living in the Haveli for a very long time and although the patta may have been in the names of Thakurs of Bhikamkore, Pali, Bhawad and Birloka and although evidence was led that Sadasukh lived in the Haveli as a licensee, Sadasukh himself had in certain proceedings asserted his own title as far back as 1933 in a statement recorded on oath and had since been in possession of the same.

(3) That, the application Ex. 2 which purported to say that 'we are satisfied that this property did not belong to Sadasukh' was written at the dictation of the plaintiff and the defendants had no option Ibut to comply with the wishes of the plaintiff inasmuch as they had entered into the compromise and had withdrawn the criminal proceedings.

6. The plaintiff filed an appeal by which the same judgment was upheld. Certain more observations were made against the plaintiff:

(1) The application for probate and the proceedings under Section 145 had been launched by Jagdamba Lal and Mangilal prior to the plaintiff's coming into picture and becoming interested in the house and that it was futile to argue that these proceedings had been taken in order to harass the plaintiff or to extort money under false pretences.

(2) In the rent-note of February, 1949 (Ex. P.4) the reference to 'Bhikamkore-ki-Haveli' was nothing more than a description of the Haveli as it was known by its popular name.

(3) The learned District Judge held that the oral evidence of the plaintiff was given by interested persons and was unreliable.

7. The plaintiff has come in second appeal. It is argued by learned counsel for the appellant that the patta was in the name of Thakurs of various Thikanas mentioned above and that Sadasukh had been living there only under permission of the said Thikanas and the defendants had no title whatsoever and, therefore, what was paid by the plaintiff under the alleged compromise was without consideration. He relied on Pestonji Manekji Mody v. Bai Meherbai, AIR 1928 Bom 539. Sanaullah v. Kalimullah, AIR 1932 Lah 446 and Gopal Sahai Bichha Lal v. Dhani Ram-Ram-Gopal, AIR 1929 Lah 689. The cases cited are clearly distinguishable.

8. In Pestonji's case. AIR 1928 Bom 539 the defendant was sought to be made liable on a promissory note which had been executed for payment of her husband's time barred debts. The court decided that a promise to pay time-barred debts of a third party was not enforceable as it did not come-within the provisions of Section 25 of the Act. The contention was then raised that the plaintiff gave up. certain rights in consideration of the defendant undertaking to pay the time-barred debts of her husband. The Court observed that if that was so, there would be good consideration, but he had by no means given up a right of any kind whatsoever.

9. In Sanaullah's case, AIR 1932 Lah 446 a complaint was filed by Sanaull.ah against Kalimullah for criminal trespass in respect of a house. By a compromise Kalimullah agreed to surrender halt of the house to his brother Sanaullah. On suit by Sanaullah for possession of half house by partition, it was found that the criminal complaint was false and the giving up of a false complaint could not form a good consideration for an agreement.

10. In Gopal Sahai's case AIR 1929 Lah 689 the agent had settled the transactions of his principal at a fictitious rate and not at the market rate and proposed to institute a suit for recovery of the losses. The defendant agreed to pay a certain amount and in suit for recovery of that amount want of consideration was pleaded. The observation was that forbearance to sue constituted a valid consideration where the plaintiff acted in the bona fide belief that he had a true claim.

11. None of the cases cited are applicable to the facts and circumstances of the present case.

12. While the plaintiff had obtained saledeed from the various Thikanas he was not in possession of tile property and he obtained possession of the Haveli under a compromise for which otherwise he would have had to institute a suit. The fact that Sadasukh had executed the will was not disputed by the plaintiff and, therefore, unless the defendants withdrew their application tor probate, it was certain to have been granted to them. Again whether Sadasukh Had or had not a valid title to the house,, there were good chances of the defendants becoming successful in proceedings under Section 145 Cr. P. C. on the basis of long as well as immediate possession. Sadasukh had again asserted nis own title as owner as far back as 1933 and the evidence of permissive possession had to be appreciated side by side with the assertions and acts of Sadasukh in his life time. The defendants, therefore, certainly relinquished their present rights:

(1) to continue in possession unless evicted in due course of law;

(2) to obtain the probate of the will of Sadasukh and

(3) to carry on the proceedings under Section 145 Cr. P. C., and all these were fully to the advantage of the plaintiff. It is obvious that the plaintiffs were faced with the prospects of a tuff fight and found more advantageous to buy off Jagdambalal and Mangilal.

13. Learned counsel laid great stress on the application for withdrawal of probate and contended that Jagdambalal and Mangilal made an admission in that application that Sadasukh had no right in the property and for that reason, it must be held that there was no bona fide claim which could be the subject of a valid compromise. It may be mentioned that in probate proceedings, there is no necessity for an enquiry whether the person who made a will had any title to the property which he be-queathed.

All that the Court is concerned, is to find out whether the document set up as a will was properly executed by the person when he was in a sound mind and knew the consequence of his act. The very fact that there is a mention in the application of some thing relating to the title of Sadasukh in the property clearly proves the application to be an inspired one. Further, what after all was recorded therein. It is said that 'now we have found that Sadasukh was not the owner of the property'.

The word 'now' has to be taken with reference to the fact that the compromise had already taken place and the money had been received by the defendants. This document cannot be taken to say that at the time when the application for probate was tiled or when the proceedings under Section 145 Cr. P. C. were instituted Jagdambalal and Mangilal were aware of the fact that Sadasukh had no right or interest in the property. The learned District Judge in coming to the conclusion to which he arrived at has referred to a decision in Nathu v. Wali Mahammad, AIR 1933 Lah 121 in which it has been observed that the abandonment of a dispute or doubtful claim is a valid consideration and that it makes no difference, even if the claim is ultimately found to be without foundation as by the execution of the compromise, the party is saved from the prospect of a protracted and uncertain litigation.

14. In my opinion, the facts which have been held proved clearly show that the plaintiff received certain advantages mentioned above by the compromise and the proceedings instituted by Jagdambalal and Mangilal pending in court had good chances of success, but for the compromise. The payment of Rs. 3,200/- to Jagdambalal and Mangilal was obviously not without consideration. The contention that the plaintiff was made to part with the money on account of the threats given by the defendants is not correct for the simple reason that the plaintiff was not even a party to the two proceedings, which were pending in court. They had been launched prior to the plaintiff becoming interested by the purchase of the property from the various Thikanas.

15. There is no force in this appeal and it is dismissed in limine.


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