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Nirmal Singh and anr. Vs. Satnam and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtRajasthan High Court
Decided On
Case NumberFirst Appeal No. 54 of 1956
Judge
Reported inAIR1960Raj313
ActsHindu Law; Code of Civil Procedure (CPC) , 1908 - Order 41, Rule 1
AppellantNirmal Singh and anr.
RespondentSatnam and ors.
Appellant Advocate L.M. Singhvi, Adv.
Respondent Advocate Chandmal and; Kishore Singh, Advs.
DispositionAppeal dismissed
Cases Referred and Hemraj Dattubuva v. Nathu Ramu
Excerpt:
- - their case was that the sale of the land in question was for consideration and perfectly proper. 7 respectively). it must, therefore, follow that the plaintiff had a right in this land since his very birth by right of survivorship and that according to the well-established principles of hindu law, daulatram, plaintiff's father, would have the authority to dispose of this land only for legal necessity or for the benefit of the estate. .theirlordships think that the lender is bound to inquire into the necessities for the loan, and to satisfy himself as well as he can, with reference to the parties with whom he is dealing, that the manager is acting in the particular instance for the benefit of the estate. but all this may not necessarily amount to the 'benefit to the estate' which to.....i.n. modi, j.1. this appeal by the defendantsnirmal singh son of ujagar singh and tara siughson of arud singh is directed against the judgmentand decree of the civil judge, ganganagar dated 20-3-1956, decreeing the plaintiff's suit for declaration and possession.2. the dispute relates to half of one murabba no. 23 measuring 12% bighas situate in chak 20 bb, tehsii padampur. it is common ground between the parties that this murabba originally belonged to melaram, deceased grandfather oi: the plaintiff satnam and of defendant bishan singh, and father of defendant daulatram, who have been impleaded as defendants nos, 4 and 3 respectively in this suit. it is not disputed that melaram had two sons laxmansingh and daulatram, and that there was a private partition between these two persons as a.....
Judgment:

I.N. Modi, J.

1. This appeal by the defendantsNirmal Singh son of Ujagar Singh and Tara Siughson of Arud Singh is directed against the judgmentand decree of the Civil Judge, Ganganagar dated 20-3-1956, decreeing the plaintiff's suit for declaration and possession.

2. The dispute relates to half of one Murabba No. 23 Measuring 12% bighas situate in Chak 20 BB, Tehsii Padampur. It is common ground between the parties that this Murabba originally belonged to Melaram, deceased grandfather oi: the plaintiff Satnam and of defendant Bishan Singh, and father of defendant Daulatram, who have been impleaded as defendants Nos, 4 and 3 respectively in this suit. It is not disputed that Melaram had two sons Laxmansingh and Daulatram, and that there was a private partition between these two persons as a result of which the Murabba was divided between them in two equal shares. The plaintiff Satnam and defendant Bishen Singh are sons of Daulatram, The plaintiffs case is that on the 15th April, 1953, the defendants appellants managed to get a sale-deed executed in their favour with respect to Daulatram's half Murabba and got it registered by the Sub-Registrar, Padampur, on 16-4-1953.

It is also disclosed in the plaint that earlier Ujagarsingh, father of defendant No. 1 Nirmalsingh and Jogendra Singh, a first cousin of defendant No. 2 Tarasingh had obtained an agreement to sell this very land in their favour on 26-2-1953, but with this we are really not concerned. The case of the plaintiff further is that the defendants appellants had purported to purchase the land in suit for an ostensible consideration of Rs. 10,000/- in the following manner.

It was mentioned in the sale-deed that a sum of Rs. 3000/- had already been paid to Daulatram and that they would pay a further sum of Rs. 3000/-on a date which was mentioned in a separate agreement executed for the purpose and the balance of Rs. 4000/- was alleged to have been paid before the Sub-Registrar. The contention of the plaintiff is that the sale was entirely without consideration and that the sum of Rs. 3000/- alleged to have been paid prior to the execution of the sale-deed as 'Peshgi' or advance had not been paid at all and that the sum of Rs. 4000/- which was of course paid in the presence of the Sub-Registrar had been taken back from Daulatram by some kind of subterfuge which was practised on him and that the remaining sum of Rs. 3000/- which was agreed to be paid on the occasion of 'Lohdi' had not been paid at all.

The plaintiff further alleged that his father Daulatram had no need to sell the land as he had no debts to repay and that the land had been given on 'Theka' and fetched an income of Rs. 600/- per annum and Daulatram was himself an earning member of the family, and, consequently, the sale was entirely without any legal necessity, and, therefore, void and inoperative against him. It was also mentioned in the plaint that Bishansingh, the other son of Daulatram and brother of the plaintiff was un-traceable having disappeared some two years prior to the institution of the suit and, therefore, he was impleaded as a defendant.

On these allegations, the plaintiff who was a minor aged ten years brought this suit in forma pau-peris with his mother Mt. Prasanni as his next friend, and prayed that the sale-deed in question be cancelled and declared to be inoperative against him and that a decree for possession with respect to the land in dispute be also awarded in his favour.

3. Deiendant Daulatram allowed the suit to proceed ex parte against him. The defendants appellants resisted the suit. Their case was that the sale of the land in question was for consideration and perfectly proper. It was contended that Daulatram vendor had admitted the receipt of the sum of Rs. 3000/- as advance before due Sub-Registrar and (that the plaintiff's story that a sum of Rs. 4000/-was manoeuvred to have been paid before the Sub-Registrar and it had been really taken back after the parties came out of his office was entirely false and unfounded.

As for the balance of Rs. 3000/- the defendants stood by their promise and stated that they would have paid the amount but before the time for the payment thereof came, the present suit had already been filed. The defendants further raised the contention that the sale was for the benefit of the estate. It was admitted in this connection to be correct that the plaintiff did receive a sum of Rs. 600/- annually as lease money for the suit land from one Bachna Chamar but it was contended that Daulatram vendor was a tailor by profession and did not do any personal cultivation and he lived in the Punjab.

According to the defendants appellants, the defendant Daulatram knew that the Rajasthan (Protection of Tenants) Ordinance, 1949 (No. IX of 1949) had come into force and so also the Rajasthan Produce Rents Regulating Act, 1951 (No. XV of 1951), and, he was, therefore, under an apprehension that he might lose all his rights with respect to the suit land or that its value might fall down and that the lessee Bachana would not be prepared to vacate the land and so he was anxious to sell his land and, therefore, the sale of the land in their favour was for the benefit of the estate. The defendants also finally contended that the suit had been brought as a result of collusion between Daulatram and the plaintiff, and deserved to foe dismissed.

4. The trial court decreed the plaintiff's suit. Its main findings were (1) that the suit land was ancestral; (2) that the impugned sale had been proved to be for consideration and (3) that it had not been established that the sale was for the benefit of the estate, and, consequently, the plaintiff's suit for declaration and possession was decreed. Aggrieved by this judgment and decree, the defendants have come up iu first appeal to this Court.

5. It may be stated at once that the main controversy in this appeal has centered round the issue relating to the sale being for the benefit of the estate only and the finding of the court below as to the sale having been for consideration was not seriously challenged on behalf of the plaintiff respondent. It may also be pointed out by way of clearing the ground that although the case of the defendants as disclosed in their written statement was that they had no knowledge that the suit land was ancestral in the hands of the plaintiff, the finding of the trial court that the land was ancestral is unquestionably correct, as it is supported by the evidence of the defendants themselves. (See in thisconnection the evidence of the defendants Nirmalsingh and Ujagarsingh who examined themselves as D. W. 5 and D. W. 7 respectively).

It must, therefore, follow that the plaintiff had a right in this land since his very birth by right of survivorship and that according to the well-established principles of Hindu Law, Daulatram, plaintiff's father, would have the authority to dispose of this land only for legal necessity or for the benefit of the estate. The only defence an which the sale is sought to be supported on behalf of the defendants is the plea that the sale was for the benefit of the estate, and it is in the light of this plea, therefore, that the present appeal requires to be tested.

6. The question which then arises is, what is the meaning of the expression 'benefit of the estate?' is this to all intents and purposes identical with and indistinguishable from the concept of legal necessity or is there some real difference between the two, and if so, what is it? The contention of learned counsel for the appellants is that the doctrine of 'benefit of the estate' should not be confounded With that of 'legal necessity', and whereas the latter would save transactions merely of a defensive nature, the doctrine of 'benefit of the estate' is wider and thereunder every transaction which a prudent owner may make for the benefit of the family would fulfil the requirements. As to this, it seems to me that there has been a divergence of judicial opinion in the various High Courts.

7. The leading case on the subject of alienation by a manager of a joint Hindu family is the case of Hunooman Pershad v. Mt. Babooee Mundraj, 6 Moo Ind App 393. What their Lordships of the Privy Council said in the aforesaid case is this:

'The power of the manager for an infant heir to charge an estate not his own is under the Hindu Law, a limited and qualified power. It can only be exercised rightly in a case of need, or for the benefit of the estate. But where, in the particular instance, the charge is one that a prudent owner would make, in order to benefit the estate, the bona fide lender is not affected by the precedent mismanagement of the estate. The actual pressure on the estate, the danger to be averted, or the benefit to be conferred upon it, in the particular instance, is the tiling to be regarded. ..........TheirLordships think that the lender is bound to inquire into the necessities for the loan, and to satisfy himself as well as he can, with reference to the parties with whom he is dealing, that the manager is acting in the particular instance for the benefit of the estate. But they think that if he does so inquire, and acts honestly, the real existence of an alleged sufficient and reasonably credited necessity is not a condition precedent to the validity of his charge, and they do not think that, under the circumstances, he is bound to see to the application of the money ..... Their Lordships do not think that a bonafide creditor should suffer when he has acted honestly and with due caution, but is himself deceived'.

8. The above case, among others, was considered by their Lordships of the Privy Council in Palaniappa Chetty v. Devasikamony Pandara Sannadhi, AIR 1917 PC 33, and it was pointed out that no indication was to be found in any of them as to what was the precise scope of the doctrine of the 'benefitto the estate'. Their Lordships proceeded to point out that it is impossible to give a precise definition ot this term which should apply to all cases and they gave certain illustrations such as the preservation ot estate from extinction, i.e defence against hostile litigation affecting it, the protection thereof from injury or deterioration by inundation, and observed that these would obviously fall within this doctrine.

It was, however, pointed out that the difficulty was to draw the fine as to what would be benefits and what not. It also seems to mo clear from a perusal of this case that the two concepts namely of legal necessity and benefit to the estate are not identical, though, I confess, that it is easy enough to see that they would be found to be over-lapping in a large number of eases. What the concept of legal necessity essentially connotes is that the manager is pressed to do certain things by the actual compulsion of events or by a pressure serious and sufficient in law which is signified by the phrases, namely, 'the actual pressure on the estate' or 'the danger to be averted', used by the Privy Council in Hunooman Pershad's case, 6 Moo Ind App 393 or again where the manager is under a pious albeit legal obligation to do certain things such as to perform the marriages of the male coparceners or their daughters or the payment of debts incurred for family business or similar other things.

But all this may not necessarily amount to the 'benefit to the estate' which to my mind is a broader expression, and may well include certain other purposes. Reverting to Hunooman Pershad's case 6 Moo Ind App 393, these would be covered by the phrase 'or the benefit to be conferred upon it' occurring after the phrases 'the actual pressure on the estate', 'the danger to be averted'. Reference may here be made to paragraph 27 Chapter I Section 1 of the Mitakshara translated by Colebrooke where it is pointed out that the father has no independent power to make a gift or sale of immoveable property without the consent of his sons. Paragraph 28 then lays down an exception in these words:

'Even a single individual may conclude a donation, mortgage, or sale of immoveable property, during a season of distress, for the sake of the family, and especially for pious purposes'.

It seems to me that in the above extract the concept of legal necessity is primarily connoted by the expression 'a season of distress' while the subject of benefit to the estate by the next following expression 'for the sake of the family', which is obviously of a wider import.

9. This brings me to the Full Bench decision of the Allahabad High Court in Jagat Narain v. Ma-thuradas, AIR 1928 All 454. It seems that there was a. conflict of authority in that Court within itself as to the precise meaning and implication of the term 'benefit of the estate', one line of decision 'taking the view that an alienation to fall within the phrase 'benefit of the estate' must necessarily be of a defensive character, that is, such as would save the estate from some threatened injury, (See Inspector Singh v. Kharak Singh, AIR 1928 All. 403), and the other line of decisions taking a broader view, namely, that the transaction in order to be binding on the estate need not be of a defensive nature pureand simple. (See Mahabir Prosad Misir v. Amla Prasad Bai, AIR 1924 All 379 and Jado Singh v. Natthi Singh, AIR 1926 All 511).

After an elaborate discussion of the whole matter and a number of rulings, the Full bench held that there was no real justification lor the view that an alienation by the manager binding on the estate must necessarily be of a defensive character, and that if tile transaction was for the benefit of the estate and was such as a prudent owner would have carried out with the knowledge that was available to him at the time, it could not be set aside.

It was further laid down that the degree of prudence required would be that which an ordinary man would exercise with the knowledge available to him and the transaction would have to be judged not by the results but what might have been expected to be its results at the time it was entered into, and that the degree of prudence requisite might well the held to be analogous to that which would be demanded of a trustee in an ordinary case.

The learned Judges also held that there was nothing in the ease of AIR 1917 PC 33 which should support the restricted meaning attributed to the phrase 'benefit of the estate' on the reasoning that the instances given by their Lordships in that case were all of a defensive nature but these instances were illustrative, and their Lordships could not be rightly understood to have said that the transactions justifiable on the principle of the benefit of the estate were limited to such instances only.

10. Turning next to the Bombay High Court in Nagindas v. Md. Yusuf, AIR 1922 Bom 122, the facts were that the adult co-parceners of a joint Hindu family contracted to sell to the plaintiff a house belonging to the family which was in a ruinous condition and which did not fetch any rent. When the plaintiff sued for specific performance of the, contract to sell, the minor co-parceners objected on the ground that there was 110 necessity for sale and that therefore the contract should be held to be inoperative against their interests. It was found that it was not necessary to sell the house as the family was in affluent circumstances.

It was held in effect that the transaction was for the benefit of the estate inasmuch as the house was in a dilapidated condition and that the defendants had received a notice from the municipality to pull it down. It seems that the learned Judges were treating the terms 'legal necessity' and 'benefit of the estate' as interchangeable, and, therefore, they proceeded to hold that the benefit to the family may under certain circumstances mean a necessity for the alienation. One of the learned Judges Shah J. observed however that the expression 'Kutumbharthe' used in the Mitakshara must be interpreted with due regard to the conditions of modern life.

11. There is a subsequent case of the Bombay High Court in Venkataraman v. Janardhan, AIR 1928 Bom 85 which however appears to have taken a narrower view wherein it was laid down that there was no general power in a Hindu father to alienate property in any way he liked for anything that might be of general benefit to the family, whether or not there was any necessity. It may be pointed out, however, that the earlier case of Nagindas, AIR 1923Bom 122 cited above does not seem to have beenbrought to the notice of the Bench which decided the subsequent case.

12. In a still later case in Ragho v. Zaga, AIR 1929 Bam 251, Patkar J. observed that from the decided cases it appeared that the benefit to the estate was to be of a protective character. The case of AIR 1922 Bom 122 was brought to the notice of the learned Judges in this case but they seem to have preferred the narrower line of decision taken in the High Court of Allahabad which line of decisions has been departed from in the Allahabad High Court itself in its Full Bench case of AIR 1928 All 454.

It may also be pointed out at this place that the last mentioned case was followed by another Full Bench of the Allahabad High Court in Amraj Singh v. Shambhu Singh, AIR 1932 All 632, though Mukerji J. struck a discordant note, and it was again approved as correct in another Full Bench decision of the same High Court in Ram Nath v. Chiranji Lal, AIR 1935 All 221.

13. A Full Bench of the Lahore High Court in Hayat Ali v. Nem Chand, AIR 1945 Lah 169 after considering a number of cases brought to us notico including the three Full Bench cases of the Allahabad High Court and Division Bench decisions of the Bombay High Court in AIR 1929 Bom 251 and Hemraj Dattubuva v. Nathu Ramu, AIR 1935 Bom 295 expressed itself in favour of the view that the words 'for the benefit of the family' have a wider meaning than 'mere compelling necessity' and that these cannot be limited to or exhausted by transactions of purely defensive nature.

14. From a review of the aforesaid decisions, I have no hesitation in stating that the balance of authority is in favour of the view that the two concepts of 'legal necessity' and 'benefit of the estate' should not necessarily be taken as identical though they are some times over-lapping. But all the same, the doctrine of 'benefit of the estate' is essentially independent and may save transactions which cannot be justified by the mere principle of legal necessity. It may of course be admitted that what actually amounts to 'benefit of the family' or the 'benefit of the estate' does not admit of any precise definition and whether the transaction impugned in a particular case would satisfy this principle, must depend on the facts and circumstances of each particular case. Thus where the manager of a joint Hindu family sells family property in order to run a new business and thereby imposes the risks and liabilities of such business upon the other members of the family, it cannot be accepted as something done for the benefit of the estate.

Similarly a mortgage or a sale of family property for the purposes solely of purchasing another property cannot be treated as having been made for the benefit of the estate. In all these cases, there is a central or basic principle which seems to have weighed in the system of our Hindu jurisprudence that immovable property is far more stable and safe than liquid money, and any alienation of the former cannot be accepted as legal unless a very strong case is made out for the same.

A prudent transaction, however, such as the sale of a dilapidated house which is of no use to the family unless it is renovated and such renovation isunnecessary or involves needless outlay of money thereon has been held, and in my Opinion, rightly, as a valid alienation under the doctrine of 'benefit of the estate' though it may not be strictly justifiable on the principle of necessity. In ail such cases a degree ot prudence would be required and the principle which has prevailed is that the prudence must be of an honest or conscientious trustee. I hold accordingly.

15. Let us now see how these principles apply to the present case. It is unnecessary to discuss the evidence of the witnesses produced by the parties one by one, for many of the salient facts are admitted or not disputed at this stage. It is thus clear that the land in suit was ancestral. It has not at all been shown that the joint family of which the vendor defendant Daulatram was the Head had any debts to pay. He had no personal debts either. Again it is not disputed at this stage that the sale was not for consideration (Sic). It is also not disputed that the suit land which had fallen to the share of Daulatram was in the possession of Bachna Chamar for a number of years, the lease money being fixed at Rs. 600/- per annum.

16. Now the defendants-appellants' case is that Daulatram was anxious to sell the land and that he had approached a number of persons in that connection such as D. W. 1 Santoksingh because he himself dad not live in 20 BB where the land was situate but instead lived in Hoshiarpur in the Punjab, that he did not cultivate the land himseif, that there was a dispute with the lessee Bachna who was in actual occupation of the land and that legislation had been introduced providing for the protection of tenants from ejectment from their holdings as else for regulating the produce rent and that there was an intention to purchase land in the Punjab, and, therefore, the impugned sale was protected by the principle of the benefit of estate as interpreted above and docs not deserve to be interfered with.

17. 1 now proceed to examine each of these arguments. Now there is no clear evidence to show that Daulatram at the relevant time was living in the Punjab and not in 20 B.B. But still accepting that he used to live in the Punjab, it is the admitted case of the parties that he was not doing any personal cultivation on the land but that the same had been given out on lease and that that lease used to fetch him a sum of Rs. 600/- annually. Again, there is no evidence, worth the name, to show that there was any dispute between Daulatram and Bachna the lessee although Ujagarsingh D. W. 7 father of Nirmalsingh has had the brazcnness to say that there was a long-standing dispute between them.

This witness would have us believe that Daulatram and Bachna had been at loggerheads in connection with the land in question since 1927 and yet on his own showing, not even once they went to a court of law. In my opinion, therefore, the story of any dispute or disagreement between these two persons is completely destitute of truth and no reliance can be placed on Ujagarsingh when he says so. Besides, Tarasingh one of the defendants appellants clearly admitted in his cross-examination that he did not know whether, there was any dispute between Daulatram and Bachna.. The other defendant appellant Nirmal Singh has the same storyto tell. Bachna himself has not been produced in evidence, and it should have been the easiest thing for the defendants to do so, if there was any bad blood between him and Daulatram.

I have, therefore, no hesitation in holding that the story of the defendants that there was any trouble between Daulatram and Bachna because the former lived in the Punjab and was not able to look after the land himself and disputes had arisen between them is all false. On the other hand, there is every reason to suppose that the relations between the two were perfectly cordial and that at no time any dispute between them had arisen as regards the payment of lease money from time to time. It could not, therefore, be held that it was for the benefit of the estate for Daulatram to have sold out this land as it had become unremunerative or difficult of management.

It may also be pointed out in this connection that admittedly Daulatram was receiving a sum of Rs. 600/- per annum as lease money for this land. It will be remembered in this connection that Daulatram's share of the land has been sold for Rs. 10,000/-. Assuming that this was a fair price for the land, Daulatram was already getting a net return of 6 per cent per annum thereon without any trouble, and this could not be said to be a poor return. It is, therefore, difficult to justify the sale of the land in suit on any such ground. It may also be pointed out here that any alienation of land (such land in itself being by far more safe and stable) for the sake of getting a higher return on the money that might be secured by sale cannot by itself be defended on the principle of the benefit of the estate. For, in the very nature of things, money is easily spent and it may not be possible for the junior members of the family to protect their interests with respect to it half as well as it should be possible for them to do so with reference to immovable property.

18. Turning next to the ground that certain legislation had come into force in the shape of the Rajasthan (Protection of Tenants) Ordinance and the Rajasthan Produce Rents Regulating Act, and, therefore, Daulatram had become apprehensive of his rights with respect to the land in question and thought that he might altogether lose it or his rights with reference thereto may get unduly truncated, this grievance seems to me to be more imaginary than real. It may be Pointed out in this connection that the Rajasthan (Protection of Tenants) Ordinance, 1949, had been brought into force on 21-6-1949, while the Rajasthan Produce Rents Regulating Act, 1951, had been brought into force some time in June, 1951. Now I am not able to see how the Ordinance of 1949 adversely affected the vendor Daulatram or should have affected him.

It is common ground between the parties that be was tailor by profession and never cultivated the land himself, and, consequently, he would always have to depend on a sub-tenant to do cultivation on the land, and, therefore, any legislation giving protection to a tenant or a sub-tenant could not have adversely affected him at all. He did and would stand in need of somebody to cultivate the land in order to make it remunerative and he had such a person already in Bachna, and, there is not the slightest reason to suppose, as already discussed, thatBachna was not or had ceased to be acceptable to him. As for the Rents Regulating Act of 1951 it did not affect him either because the Act regular ted produce rents, and so far as Daulatram was concerned, he had leased out the land to Bachna on a cash premium. The introduction of this last-mentioned legislation, therefore, could not possibly affect the return which he was getting on the land.

19. The only other point which remains to consider in this connection is that the intention of Daulatram was to dispose of the suit land with a view to purchase another land, and learned counsel inthis connection relies on the statement of Laxmansingh P. W. 3 the proprietor of the other half share, who had also sold his share of the land and had said that he had not purchased any other land because both brothers had decided to purchase land jointly and he also added that his brother had not received the full consideration for the impugned sale. I have no hesitation in saying that the version of Daulatram as well as Laxmansingh that the former had received no consideration whatever for the sale in question has been rightly rejected by the court below and seems to have been motivated by a desire on the part of these persons perhaps to extract more money if possible from the appellants vendees. Be that as it may, it is not right to raise an inference from Laxmansingh's statement that Daulatram had sold his share of the land in order to be able to purchase another land and more particularly in the Punjab. It clearly seems to me from the evidence of Laxmansingh that he has been living in 20 BB and it is not suggested by the defence that he lives in the Punjab. Consequently if he wanted to purchase any other land, such purchase would in all probability be in Rajasthan or round about the same area in which he has been living at present.

The theory put forward by the defence, therefore, that Daulatram had sold the suit land to the defendants appellants in order to be able to purchase some other land in the Punjab is not borne out by Laxmansingh's statement. Even if that were so, I am disposed to think that the disposal of joint family land by the manager without any legal necessity and for the purpose of purchasing another land elsewhere which purchase has not been made and may not be made at all cannot be held to be justified on the doctrine of 'benefit of the estate.'

20. For these reasons I am altogether unable to hold that the sale made by Daulatram in favour of the defendants appellants can be saved on the principle of benefit to the estate, and, therefore, the judgment of the court below does not call for any interference.

21. Learned counsel for the appellants next contended that even if this Court should decide the question of the validity of the sale against his clients, it should take into account the equities arising out of the sum total of the findings arrived at and give effect to them. In other words, it was prayed that this Court should be pleased to set aside the sale only on condition that the plaintiff do return to the defendants appellants the sale consideration to them which has been held by the Court below to be proved to have been given to his father Daulatram. This contention is answered by the contesting respondent by the plea that this particular question was never raised by the appellants in thetrial court and that no issue had been struck or invited thereon on behalf of the appellants. It was further urged that the grounds of appeal filed on behalf of the appellants in this Court also do not raise this contention and consequently the appellants should not be allowed to make out an entirely new case at this stage.

On a careful consideration of the whole matter, I have come to the conclusion that the objections raised by learned counsel for the respondent Have force. The objection is indeed well-founded that the appellants did not raise this ground in their written statement or in the issue or even at the time of arguments in the trial court. Not only that, they failed to raise this ground even in the grounds of appeal filed in this Court and, therefore, the controversy sought to be raised is rightly objected to, as being in the nature of a complete surprise to the plaintiff respondent, at this stage. If this point were to be allowed to be argued at this stage, quite obviously the hearing of the appeal would have to be adjourned.

And this I am not prepared to allow particularly is the appeal has remained pending in this Court for over three years and no steps were ever taken to amend the grounds of appeal during this entire period, I have, therefore, arrived at the conclusion that the appellants should not be allowed to protract the hearing of this appeal by being allowed to raise this particular controversy at the fag-end of the case. I may also add that so far as the recovery of the sale consideration paid by the appellants is concerned, they have a clear remedy against the vendor Daulatram, father of the plaintiff, and it is open to them to file a suit for the purpose in a civil court iF they care to do so.

22. The result is that this appeal fails and is hereby dismissed, but having regard to all the circumstances of the case, I would leave both parties to bear their own costs throughout.

23. NOTE: After the foregoing judgment had been dictated, learned counsel for the defendants has filed an application dated 9-3-1960, in which he has reiterated his prayer for being allowed to argue the point mentioned in the penultimate paragraph of this judgment and has further stated that he had also prayed for permission to amend his written statement and to add a further ground of appeal in the memorandum of appeal filed in this Court. To the best of my recollection the prayers for the amendment of the written statement as well as for the addition of a specific ground in the memorandum of appeal are being specifically made for the first time in this application and what was really pressed towards the close of the arguments was that this Court should allow the point 'of equities arising in the case' being argued even for the first time as it was a point of law.

Be that as it may, I am entirely reluctant to accept the prayer for amendment of the written statement which has been made at a very late stage or to allow this point to be argued for the first time --a point which is by no means simple and which according to learned counsel for the respondent is quite controversial and upon which I have not had the benefit of the opinion of the court below, and for an adequate relief in connection therewith an alternative remedy is clearly open to the appellants as already pointed out above. With those observations I would reject the application and conclude that this appeal must be dismissed as already ordered above.


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