Skip to content


Surajmal Vs. Bheroolal and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtRajasthan High Court
Decided On
Case NumberEx. Second Appeal No. 1 of 1954
Judge
Reported inAIR1958Raj311
ActsCode of Civil Procedure (CPC) , 1908 - Order 20, Rule 14 - Order 21, Rules 1, 2 and 15; Hindu Law
AppellantSurajmal
RespondentBheroolal and ors.
Appellant Advocate M.M. Vyas, Adv.
Respondent Advocate Chandmal, Adv.
DispositionAppeal allowed
Cases ReferredJhakhri Gope v. Phagu Mahto
Excerpt:
- section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - appellant was arrested on 30.11.1998 when the 1986 act was in force and under clause (h) of section 2 a juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years - it is with the enactment of the juvenile justice act, 2000, that in section 2(k) a juvenile or child was defined to mean a child who had not completed eighteen years of a ge which was given prospective prospect -.....i.n. modi, j. 1. the appellant surajmal and the respondents bheroolal and gokalchand are rival pre-emptors and obtained a joint decree in a suit for pre-emption by which the right of the appellant to pre-empt was adjudged superior to that of bheroolal and gokalchand. by this decree which is dated 5-5-1945, the trial court (hakim of sambhar) declared that surajmal appellant do pay a sum of rs. 850/- in court by or before 15-6-1945, whereupon he would be entitled to receive possession of dhularam's house from defendants nos. 1 to 5 (ganeshilal and others, vendees).it was further provided by the decree that if surajmal fails to deposit the amount, (apparently meaning thereby, by or before 15-6-1945) then the decree passed in his favour shall stand cancelled. in that event it was further.....
Judgment:

I.N. Modi, J.

1. The appellant Surajmal and the respondents Bheroolal and Gokalchand are rival pre-emptors and obtained a joint decree in a suit for pre-emption by which the right of the appellant to pre-empt was adjudged superior to that of Bheroolal and Gokalchand. By this decree which is dated 5-5-1945, the trial Court (Hakim of Sambhar) declared that Surajmal appellant do pay a sum of Rs. 850/- in Court by or before 15-6-1945, whereupon he would be entitled to receive possession of Dhularam's house from defendants Nos. 1 to 5 (Ganeshilal and others, vendees).

It was further provided by the decree that if Surajmal fails to deposit the amount, (apparently meaning thereby, by or before 15-6-1945) then the decree passed in his favour shall stand cancelled. In that event it was further provided that if Gokalchand etc. should deposit the sum of Rs. 850/-before 15-7-1945, in Court, they would be entitled to obtain possession of the house. Certain other directions as regards costs were also made in the decree but with those we are not concerned for the purposes of the present appeal.

The appellant's case is that he paid the decretal amount (in fact he alleges to have paid a sum of Rs. 1350/- i.e., Rs. 500/- over and above the decretal amount of Rs. 850/- to dissuade the vendees from filing any further appeal) to the vendees out of Court on 11-6-1945. His case further is that as the Civil Courts were closed on account of the summer vacation, during the month of June, 1945, he had moved an application before the Hakim Sambhar for certification of this payment on 2-7-1945.

A receipt O-8 dated 11-6-1945 from the vendees was also filed along with this application. The appellant's case further is that the rival pre-emptor Gokalchand had made a compromise with the vendees on behalf of himself and his nephew Bheroolal on 9-6-1945, in which it was stated that the vendees were desirous of filing an appeal fromthe judgment of the trial Court but the dispute had been compromised and the vendees had given up their right of appeal inasmuch as Gokalchand had received a sum of Rs. 90/- from them and they (Gokalchand and Bheroolal) had given up their right of pre-emption and they would not seek execution of the decree in their favour.

It was further provided in the compromise that if in the event of Surajmal not depositing the decretal amount, the right of pre-emption should accrue in their favour that right should be deemed to have been waived, and that they would in no event exercise the right of pre-emption. It was also mentioned in the compromise that the other decree-holder Bheroolal was not present at the time, and, therefore, his signatures could not be obtained but the compromise was being made with his consent and that the sum of Rs. 90/-which had been received from the vendees would be kept half and half by Gokalchand and Bheroolal.

Lastly it was mentioned that if Bheroolal should act in any way in contravention of the terms of this compromise the vendees Madanlal and others would be entitled to recover the cost of the house under pre-emption amounting to Rs. 3500/- along with costs and damages from Gokalchand. This compromise was presented before the Hakim of Sambhar on 9-6-1945 and verified by him.

It may also be mentioned in this connection that the parties to the compromise namely Madanlal and Gokalchand had also filed an application before the Hakim of Sambhar that as they were required to go out in connection with their service and it was not possible for them to stay at home till July, 1945, the compromise be verified without delay. This application was obviously made to indicate the urgency of the matter as the Court was closed for the summer vacation for the month of June. The compromise was accordingly verified by the Court on 9-6-1945.

It is also alleged by Surajmal that a compromise was arrived at between him and the vendees. Madanlal and others on 11-6-1945. In that compromise there is a reference to the compromise reached between the other pre-emptors Gokalchaud Bheroolal and the vendees dated 9-6-1945. It is further mentioned therein that as the vendees and Surajmal belonged to the same community and were relations and as Surajmal used to live in Mirpur, and the vendees were intending to appeal against the decree of the trial Court in Surajmal's favour, Surajmal had in addition to the decretal sum of Rs. 850/- further paid Rs. 500/- in lieu of certain expenditure regarding repairs incurred by the vendees and in return for all this the vendees had agreed not to file any further appeal, and Surajmal had received possession of the suit house from them. It was further mentioned in this compromise that Surajmal would produce a receipt in token of his having received possession in, Court on the resumption of work after the summer vacation.

2. It was in these circumstances that Bheroolal filed an application for execution of the decree on 12-7-1945. Before proceeding further it maybe mentioned that there is an application from Bheroolal on the record of the execution Court from which it appears that he produced a receipt for Rs. 850/- in that Court on 16th of February, 1950. The receipt is alleged to be numbered 51 and dated 6-7-1945. There is an order of the executing Court on this application which shows that receipt must have been presented to him after the judgment had been announced. From this receipt it appears that Bheroolal had deposited the decretal amount of Rs. 850/-in Hakumat Nama on 6-7-1945.

3. This execution application was hotly resisted by vendees Madanlal and others as well as by the appellant Surajmal. The appellant's case was that he had paid the money out of Court to the vendees on 11-6-1945, and had taken possession of the house and as he had to go out to earn his livelihood to Pardesh he had handed over all his documents to his counsel with the request that the latter should produce them in the Court as soon as it reopened alter the summer vacation.

His case further was that the receipt produced by him was verified by the Court on 2-7-1945, on account of the vacation, and, therefore, it should be considered sufficient compliance with the terms of the decree as he had made the payment to the vendees, though out of Court but within the time permitted by it, that is, on 11-6-1945.

Surajmal also contended that so far as Bheroolal was concerned, his uncle Gokalchand had compromised the matter with the vendees and Gokalchand was the Karta of the joint Hindu family consisting of Gokalchand and Bheroolal, and, consequently, Bheroolal had no right to execute the decree. The vendees Madanlal and others also contended that Gokalchand had amicably settled the matter with them on 9-6-1945, and that he had accepted a sum of Rs. 90/- from the vendees as consideration for that compromise and got the same verified from the Court on 9-6-1945.

It was further contended on behalf of the vendees that they were anxious to file an appeal against the judgment of the trial Court as it had not allowed any money to them in lieu of the expenditure which they had incurred on the repairs to the house, and, therefore, on Surajmal appellant representing to them that he used to live in pardesh and that he was tired of the litigation and that he was further prepared to pay an additional sum of Rs. 500/- to them, they had accepted the total amount of Rs. 1350/- from him and made over the possession of the suit house to him on 11-6-19-15, and that thereafter Surajmal was in effective possession of the house.

4. The executing Court upheld the objections of Surajmal, Madanlal and others and rejected Bheroolal's application for execution. Thereupon the latter went in appeal to the District Judge, Merta, who reversed the decision of the execution Court and directed that the respondent Bheroolal was entitled to gel possession of the suit house as directed under the decree dated 5-5-1945. Surajmal the rival superior pre-emptor has now come up in appeal to this Court.

5. The first question which emerges for determination in these circumstances is whether the payment made by Surajmal superior pre-emptorout of Court though within the time which was permitted by the decree was sufficient compliance with the terms of the decree and was, therefore, a good and valid payment Learned counsel for the appellant placed his reliance on Sher Shah v. Sher Jang, 21 Pun Re 1889 (A) and Sukhpalsingh v. Ahdul Rahman, AIR 1921 All 159 (B), in this connection, while on the other side my attention is invited to Abul Fatteh v. Fatteh Ali, AIR 1916 Lah 249 (C).

6. Briefly put, the facts in Sher Shah's case (A), were that the decree for pre-emption directed that the purchase money should be paid on or before a specified date. The decree-holder deposited two-thirds of the purchase money due to one of the vendees in Court and filed a receipt from the other vendee for the balance. The latter vendee was present in Court and admitted the receipt of the money. It was contended that the payment was not a proper compliance with the terms of the decree.

This contention was negatived and it was held that the term 'payment' meant satisfaction of an obligation and that when the vendees certified in Court that the obligation on the part of the decree-holder to pay them the purchase-money had been discharged and filed an acknowledgment to that effect in Court, the payment without any straining of language, should be held to have been made in Court.

7. The next case Sukhpalsingh v. Abdul Rahman (B), was also a case of two rival pre-emptors. A decree was passed on 5-5-1917, directing Sukhpalsingh who was held to be the preferential pre-emptor to pay the money to the credit of the vendees within 30 days of the decree. The payment was made out of Court and on 2-6-1917, the vendees came into Court and certified that they had received payment.

The other pre-emptor then deposited the money on 4th of June and applied for execution of the decree and for possession. Sivkhpalsingh objected. The executing Court and the first Court of appeal held that the payment made by Sukhpalsingh was not sufficient compliance with the terms of the decree.

On appeal to the High Court, the decision of the Courts below was set aside and it was held that Sukhpalsingh having paid the full amount due to the vendees out of Court and the latter having duly certified the payment within the period allowed by the decree, had complied with the spirit as well as the letter of the decree. This case is slightly different from the present one inasmuch as the certification therein was also made within the time permitted by the decree but otherwise the payment out of Court was held to be a good payment.

8. I next turn to Abul Fatteh's case (G), which was decided by a learned Single Judge. In this case the decree provided that F the superior pre-emptor should pay the price into Court on or before 15-3-1915, and in default, his claim should stand dismissed and A's claim would then arise. On 5th March, F put in a receipt for the whole amount and asked the Court to certify the payment. The Court issued notice to the vendees to appear on 25th March.

Some of the vendees appeared in Court on 31st March and confirmed the receipt and the others confirmed it on 12th April. In the meantime the junior pre-emptor applied for execution on 16th March. The learned Single Judge does not appear to have been happy about the decision in the Bench case in Sher Shah's case (A), of the same Court and he was of opinion that even the decision in that case did not go farther than this that the action on the part of the pre-emptor and the vendee must have been completed before the due date and calculated to put the Court into a position to issue an immediate warrant for possession may be taken as equivalent to payment into Court. The learned Judge, therefore, held that as the payment by F to the judgment-debtors had not been certified to Court by the fixed date, his decree became a mere waste paper afterwards and on that view A was entitled to execute his decree.

9. No other ruling has been cited before me on this aspect of the case, nor have I been able to lay my hands on any. On a careful and anmous consideration of the whole matter, it seems to me that the Court should not adopt an unduly legalistic view in a case of this kind and should see whether the decree has been substantially complied with that is in its spirit, if not in its literal wording.

It was and would be indeed desirable that the money should have been deposited in Court by the superior pre-emptor by or before the date fixed, that is, 15-6-1945. But it is not seriously disputed in this case, and, at any rate, there is a concurrent finding of the two Courts below that money was paid by the appellant Surajmal to the judgment-debtors vendees on 11-6-1945, which was well within the time fixed by the decree for payment.

Thus the executing Court has said in its judgment that learned counsel for Bheroolal has not challenged the fact of direct payment but questions its legal value. The learned District Judge also came to the conclusion that the fact of payment by Surajmal is proved by the evidence of Sitaram and Madanlal who have proved Ex. O-3, the compromise between Surajmal and Madanlal and others dated 11-6-1945.

It was faintly suggested on behalf of the contesting respondent that this payment was collusive. There is, however, no evidence to support this contention and no cross-examination whatsoever was directed against Surajmal and Madanlal when they came into the witness-box in that connection. Respondent Bheroolal also does not mention a word as to that contention in his evidence. I have, therefore, no hesitation in coming to the conclusion that payment was in fact made by the appellant Surajmal to the vendees on 11-6-1945, as alleged by him.

10. The question, therefore, is whether this payment should or should not be considered to be valid compliance in the circumstances of this case. In my opinion, there seems to be no valid reason to hold such compliance to be insufficient where there is no room to doubt that such payment had in fact been made to the judgment-debtor within the time allowed by the decree though outside the Court.

I have not been able to lay my hands on any direct authority on the point involved in this case, but some support for this view is to be found in the decision arrived at in Sher Shah's case (A), already referred to above where a payment made outside the Court was held to be good where it was made within time. It is true that in that case the other judgment-debtor to whom payment was made outside the Court was present in Court and he admitted the receipt of the money before the stipulated date.

It is also true that in the present case the receipt was filed not within the stipulated time but on 2-7-1945, when the Court re-opened after the summer vacation. With all respect, the substance, of the matter, however, seems to me not to be the certification of the payment made as has been emphasized in some of the cases discussed above but the actual factum of payment within the stipulated period particularly where the application for certification has been made within time under Order 21, Rule 2, C. P. C. as in this case.

Thus, if the required payment is made in Court within the time specified in the decree, it is all well and good. But if payment has been made even out of Court but within the time fixed by the decree or is proved to have been so made, I do not see any valid considerations of legal principle or common-sense why such payment should not be held to be a sufficient compliance with the terms of the decree.

In this view of the matter, I am disposed to hold that the payment made by Surajmal was a valid payment, and the lower appellate Court was not right when it came to the conclusion that having been made outside the Court, though within the time permitted by the decree, such payment was bad and was not a proper compliance with the terms of the decree in law.

Having regard to the conclusion to which I have come, it is unnecessary to go into the question whether it was possible for the appellant to have made the payment in Court during the course of the summer vacation. I shall assume for the purposes of the present appeal that such payment could have been made; but on the view which I have felt persuaded to accept, the payment having been made outside the Court within the time permitted was sufficient compliance with the terms of the decree.

11. The next question for consideration is even if the above payment was not valid, whether the compromise having been arrived at between Gokalchand on the one hand and the vendees on the other, the contesting respondent Bheroolal was still entitled to execute this decree so far as his right of pre-emption is concerned.

Now, so far as the actual factum of this compromise is concerned, we have again a concurrent finding of both Courts below that a compromise was undoubtedly arrived at between Gokalchand and Madanlal and others on 9-6-1945. I have already set out the terms of this compromise in the foregoing part of my judgment and need not repeat them here. There can be no question that Gokalchand is bound by this compromise.

The further question which, however, arises is whether respondent Bheroolal is bound by thiscompromise. If he is, then there is an end of the matter so for as his right to execute the preemption decree is concerned on tins score also. It is true that this compromise is signed by Gokalchand only, and it is contended that Bheroolal, in any event, is not bound by the compromise.

It is significant in this connection to remember that Gokalchand had stated in the compromise that Bheroolal was not present there when the compromise was being) executed, and, therefore, his signatures could not be obtained thereon but the compromise was Being done with his consent. There is evidence on the record that Gokalchand is the real uncle of Bheroolal respondent and that both of them are members of a joint Hindu family living together.

They carry on business at the same shop which they are running in the name of Gokalchand Bheroolal. These facts have been clearly admitted by Gokalchand and have not been successfully controverted by Bheroolal. Gokalchand also admitted in the earlier part of his examination-in-chief that they (meaning thereby Gokalchand and Bheroolal) Bad entered into a compromise with the vendees (Ex. O-1).

He, however, went back on this statement and said later that he and Bheroolal had separated and that he had entered into the compromise without consulting Bheroolal. Indeed he went to the length of saying that he had entered into the compromise owing to pressure; but he entirely failed to show what that pressure was. He had himself produced an application before the Court on 9-6-1945, (Ex. O-2) which he and Madanlal had both signed for verification of the compromise.

Bheroolal's version of course is that he had never authorised Gokalchand to make any compromise with the vendees. He also said that he and Gokalchand were carrying on their business separately and that they were messing separately also and that a separation had taken place between them. There is, however, no doubt that Bherulal was indulging in falsehoods when he said that he and his uncle wore living separately or that they were not joint.

Similarly, he was also telling a brazen-faced lie when he said that ho had effected a partition between himself arid his uncle because when he was asked to say when the separation had actually been made, he was non-plussed. He also pretended to say that there was a deed of separation but that was not produced.

Bheroolal, however, admitted that all social invitations were received by them in the name of Gokalchand, and I agree in the view of the executing Court that this was a further indication that these two persons were joint and were not separate. From the entire trend of the testimony of these two persons, t have no hesitation in coming to the conclusion that Gokalchand and Bheroolal are members of a joint Hindu family of which Gokalchand being the senior member was the manager.

12. The question then is whether the compromise made by Gokalchand on behalf of the junior pre-emptor with Madanlal and other vendees was binding on the junior member namely Bheroolal. It was contended before me in this connection that both Gokalchand and Bheroolal were joint decree-holders and that in law one of these decree-holders alone, could not give a discharge of the decree to the judgment-debtors.

Now, it may be accepted that as a rule, one of the decree-holders cannot give a valid discharge to the judgment-debtors for the entire decree without the concurrence of the others, though where he is an authorised agent of the other decree-holder or decree-holders, he can give such a valid discharge on behalf of himself and the others also. The question, however, is whether this general principle bolds good even where of the several decree-holders, one is the manager and the other or others are junior members of a joint Hindu family.

The contention on the side of the respondents is that where the decree has been passed in favour of a number of decree-holders jointly even in such a case like the last-mentioned, the manager cannot give a valid discharge under the general authority permissible under the Hindu Law but that the imperative requirement is that there should be special and post-decretal agency to bring about such a result, and that the authority under the general law is not enough. Reliance was placed in this connection on Muthuswamy v. Narasimha, AIR 1934 Mad 330 (D) and Fatimabi v. Tukabai, AIR 1945 Nag 95 (E).

13. The facts in Fatimabi's case (E), were that one K filed a civil suit for recovery of money and after K's death, his widow and two sons were brought on the record as his legal representatives. One of these sons was a minor and the mother was his guardian. A decree was passed in their favour. The major brother filed an application for execution and he certified full satisfaction of the claim.

Later, the mother on behalf of herself and the minor son applied for execution of the decree after allowing deduction for the other brother's share. The judgment-debtors raised an objection that the decree has been fully satisfied by an adjustment with the brother who was of age and that it was no longer capable of execution. In these circumstances it was held that even it Mahadeo the elder brother be assumed to have acted as a manager on behalf of the joint family, he could act subject to Order 32, Rules 6 and 7 and that by virtue of the decision of their Lordships of the Privy Council in Ganesha Row v. Tuljaram Row, 40 Ind App 132 (PC) (F), the manager could not have entered into the compromise without the sanction of the Court.

It was therefore held that this payment was not binding on the joint decree-holders. Now, the precise decision which was arrived at in this case is indeed unexceptionable because the powers of the manager in such a case have been expressly limited by the law as laid down in Order 32, Rules 6 and 7 and are indeed subject to and controlled by them.

Reliance was placed while deciding this case on AIR 1934 Mad 330 (D), and the proposition was further laid down that the agency under the general law was not enough and that a special agency created subsequent to the decree must havebeen brought about for the purpose of giving a discharge on behalf of all unless any such agency was expressly declared in the decree itself. The Madras case (D), was a case of partners but it was held that the same principle was applicable where a decree-holder enters into a compromise as a manager and his authority under the general law is not enough.

14. Now Muthuswamy's case (D), came up for consideration before a Full Bench of the Madras High Court in Hanumanthappa v. Seethayya & Co., AIR 1949 Mad 790 (G), and it was held, if I may say so with respect, on an elaborate and careful examination of the relevant provisions of law by Rajamannar, G. J. (who delivered the leading majority judgment) that Muthuswamy's case (D), and the series of cases which took that view were not correctly decided, and that the true view was that where a decree was passed in favour of a firm, a payment outside the Court to one partner decree-holder binds the other partners decree-holders, provided that the other partners decree-holders would be at liberty to establish special circumstances why such payment should not hind them and the earlier decisions to the contrary were over-ruled.

The principle was laid down that the view that the legal effect of a payment out of Court to one of several decree-holders after a decree in their favour was passed could no longer be determined by the general or the personal law applicable to the parties, as the case may be, was not sound, and that if before the passing of the decree one of the decree-holders by receiving payment of the debt which was the subject-matter of the suit (as in the case of a partnership) could give a valid discharge binding on the other members of the firm under the substantive law, there was no reason of legal principle or common sense why he should not be competent to give a similar discharge after the passing of a decree.

It was also laid down that there was no doubt that in such a case the debt was merged in the decree, but it was pointed out that, even so, it continued to be a debt and that although for the recovery of the debt the machinery of the Court was available, still that fact could not destroy the rights and liabilities of the decree-hoders inter se or in relation to third parties under the general or substantive law.

It was further pointed out that the view taken in some of the decisions was that the agency under the general law was not enough, and that a special agency should have been created subsequent to the decree or that such agency must be declared in the decree itself but it was pointed out that there was no real warrant in law for that view.

15. Further the relevant provisions of the Code of Civil Procedure, namely, Order 21, Rules 1 and 2 and 15 came up for particular consideration as the former provisions have been usually called in aid of the view that one or some of the joint decree-holders under no circumstances can give a valid discharge of a joint decree to the judgment-debtor except with the concurrence of the other decree-holders. It was held in effect that the provisions of the Civil Procedure Code in this respect were after all rules of procedure and could not have the effect of over-riding the substantive law.

16. With respect I entirely agree with thisview. Now, all that Order 21, Rule 1 provides is that the money payable under a decree shall be paid (i) into the Court whose duty it is to execute the decree; or (ii) out of Court to the decree-holder or (iii) otherwise as the Court passing the decree directs. It is also true that the word decree-holder would include 'decree-holders'.

Then Rule 2 provides for certification by the decree-holder of a payment made to him outside the Court and the making of an application to that effect whereupon the Court must record the payment. Then Rule 15 provides for execution of a joint decree by one of the decree-holders for the benefit of them all.

The only consequence to my mind which follows from the aforesaid procedural provisions is that where a decree is passed jointly in favour of a number of persons, the payment may be made in Court, where, if the application for execution is made by only one or some of the decree-holders the Court may make an order safeguarding the interests of the persons who have not joined in the application; or if the payment is made out of Court it should be made to all of them or to one of them with the consent of the others.

These are enabling provisions. But there is nothing in these provisions to warrant the view that the authority, if any, which one of the decree-holders may have under the substantive law to grant the discharge of a debt is taken away by the passing of the decree. If that power was undoubtedly vested by substantive law in one of the parties to the decree before the decree was passed, it is to my mind extremely difficult, if not impossible, to hold that he has been divested of it because a joint decree has since been passed in his favour along with certain others whom he had and has the authority to bind in law. But where under the substantive law itself it would not have been competent to one of the joint decree-holders to give a discharge before the debt has been decreed, it cannot but follow that he cannot possibly give a discharge after the decree is passed,

17. It may also be pointed out in this connection that Section 7 of the Limitation Act, as amended by the Act of 1908, also lends support to the view propounded above. Section 7 runs as follows :

'Where one of several persons jointly entitled to institute a suit or make an application for the execution of a decree is under any such disability, and a discharge can be given without the concurrence of such person, time will run against them all: but, where no such discharge can be given, time will not run as against any of them until one of them becomes capable of giving such discharge without the concurrence of the others or until the disability has ceased.'

I may state at once that this section does not directly govern the question whether one of the decree-holders can give a valid discharge on behalf of all. But at the same time it is plain enough that the section clearly contemplates that the Legislature while enacting it was proceeding on the view that a discharge can be given by joint decree-holders without the intervention of the Court and further that it is possible in some cases that one or some of them would be competent to give a discharge on behalf of all provided ofcourse the law by which the parties are governed so permits. The view, therefore, that after a decree has been passed one of the decree-holders cannot except with the consent of the other decree-holders give a valid discharge appears to be entirely inconsistent with the principle of the aforesaid section and cannot be accepted as correct.

18. I now proceed to refer to a few cases in which the view has been specifically taken that where one of the joint decree-holders is the manager of a joint Hindu family and the others are the junior members thereof, it is open to the manager to give a valid discharge on behalf of himself and the other judgment-debtors without any special or post-decretal authority in that behalf.

19. But before I do so, let me reproduce here what Mulla in his Principles of Hindu Law says as regards the authority of the manager of a Hindu joint family in the matter of the grant of a discharge by him of the debts due to the family :

'Para 248-A : The manager has power to give a valid discharge due to the joint family. Hence if one of the members is a minor, he cannot claim the benefit of Section 7 of the Limitation Act.'

20. Now, the earliest case to which I should like to refer in this connection is Duraiswami Sastrial v. Venkatarama Iyer, 12 Ind Cas 503: 1911-2' Mad WN 420 (H). In that case the principle was laid down that the managing member of a joint Hindu family can receive monies on behalf of the family from debtors and give a discharge so as to bind the whole family and further that there was nothing in the Civil Procedure Code restricting the manager's power to receive such money when a decree had been passed.

21. The next case is Krisrna Hands v. Padmanabha, 21 Ind Cas 177 (Mad) (1). It was held that payment to junior members of the joint family in discharge of a decree was not valid, but such payment to the managing members was valid.

22. Similarly in Ajudhia Prasad v. Yasin Ali Khan, 16 Oudh Cas 146 (J), it was held that ordinarily one out of several joint decree-holders cannot give a valid discharge for the amount of a joint decree but the position would be different where the decree-holders are members of a joint Hindu family such as father and son and though the son objects to the discharge given by the father, the son was bound by the act of the father who was the manager of the family.

It was also observed that the father and the son were apparently colluding with each other to defeat the bond which had been accepted by the father. The case before me, to my mind, is more or less analogous to the present case, and it clearly seems to me that Gokalchand and Bheroolal are definitely colluding in the present case.

23. Again in Achhaibar Singh v. Ram Sarup Sahu, ILR 35 All 380 (K), the question whether the managing member of a joint Hindu family could give satisfaction of a decree so as to bind the other members of a joint family was answered in the affirmative. It was contended that the three brothers in that case were joint decree-holders and that satisfaction entered by one could not bind the others but it was held that where the managing member of a family gave a discharge thenthe decree was completely discharged and could not possibly be executed again.

24. The same view was adopted in Jhakhri Gope v. Phagu Mahto, AIR 1927 Pat 329 (L). The principle which appears to have been accepted was that the Karta of a joint Hindu family had full authority to act for the family even in the matter of giving discharges of decretal debts.

25. From the cases discussed above, the following propositions clearly emerge :

1. It is not open as a general rule for one of the decree-holders to give a complete discharge to the judgment-debtors out of Court without the consent of the other decree-holders or without any special authority from them to give such discharge.

2. An exception to the aforesaid rule occurs where the decree is in favour of a number of persons who are members of a joint Hindu family and one of them is the managing member of that family. In such a case he is competent to grant a discharge to the judgment-debtor or judgment-debtors as the case may be because of his general authority under the Hindu Law to do so, and his authority to give such discharge is not really affected by the circumstance that the decree is in favour of all the joint decree-holders and that a special authority after the decree has not been vested in him to grant such a discharge.

3. But where the managing member even in such a case seeks to give discharge on behalf of himself and certain other members of the family who may be minors, then he must seek the sanction of the Court, and unless such sanction is sought and obtained, the discharge will not bind the other members of the family.

4. There may be cases in which the junior members of the family may seek to have the discharge set aside on any ground which would invalidate a contract under the general law relating to contracts or on the ground of collusion or similar other considerations. It would be open to such junior members to avoid the discharge but in such a case the burden of proof will obviously fall on their shoulders, and where such burden is discharged, they cannot be held to be bound by the act of the manager.

26. Let us now apply the principles set out above to the facts of the present case. There is no doubt that Gokalchand and Bheroolal were members of a joint Hindu family at all relevant times. There is also no doubt that Gokalchand was the Karta of this joint Hindu family consisting of himself and his nephew Bheroolal. It is nobody's case that Bheroolal was a minor at the date of the compromise.

It is also fully proved on the record that Gokalchand had entered into a compromise with the vendees by which he had completely surrendered his rights under the decree of 1945. This compromise was presented by Gokalchand himself in Court and was verified on 9-6-1945. On the principles propounded by me above, it further follows that that compromise would be binding on Bheroolal in the absence of any circumstance vitiating that compromise in law.

No such circumstance was alleged much less proved. It was on the faith of this compromise that the present appellant Surajmal and thevendees entered into a compromise between themselves by which they forewent their right to file any further appeal. It seems clear to me that having done all that, both Gokalchand and Bheroolal have colluded between themselves and ask the Court to accept that the compromise of 9th June, 1945, had been entered into without, any authority, or, at any rate, that it had no legal effect. I am unable in the circumstances men Honed above to accept any such contention and hold that the compromise binds not only Gokalchand but also his nephew Bheroolal.

27. On this view, I allow this appeal, set aside the judgment and decree of the learned District Judge, and hereby hold, that Bheroolal the contesting respondent is not entitled to execute the decree of pre-emption in question. Having regard to all the circumstances of the case, I would leave both parties to bear their own costs throughout.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //