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R.D.K. Venkatalingama Nayanim Bahadur Varu, Rajah of Kalahasti Vs. Rao Muni Venkatadri Rao Garu - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1927Mad911; (1927)53MLJ533
AppellantR.D.K. Venkatalingama Nayanim Bahadur Varu, Rajah of Kalahasti
RespondentRao Muni Venkatadri Rao Garu
Cases ReferredVenkatalingama v. Arunachellam Chettiar
Excerpt:
- - whether or not there has been an adjustment here within the meaning of the rule, it is perfectly clear that it has not been certified to the court. sourindra mohan sinha 24 indcas 391 has been disapproved by napier and krishnan, jj. , also held that under section 92 of the evidence act it could not be set up as it was clearly a new agreement contradicting or varying the terms of the original decree. in fasli 1324 the rajah failed to pay the peishcush and road-cess amounting to some rs. the learned judges refer to the policy underlying the act, and decide that a mortgage decree for sale is unenforceable unless the terms of section 4 are satisfied. that consent was not obtained, but the prohibition accordingly stands good......shall any court attach or sell them. it was contended that, notwithstanding this prohibition, the decree for sale must be carried out. the learned judges (subramania aiyar and sankaran nair, jj.) held that if the interdiction upon alienation were merely for the benefit of particular persons, it might be waived; but where the prohibition had some object of public policy in view the rule was to enforce the prohibition literally and strictly. finding that section 5 had been framed on considerations of such a policy, they declined to order the sale. the same principle underlies the decision in vasanji haribhai v. lallu akhu ilr (1885) b. 285, where a mortgage suit was brought in respect of a land held upon a certain special tenure without obtaining the collector's sanction, as required by.....
Judgment:

Odgers, J.

1. This is an appeal against the order of the Subordinate Judge of Chittoor ordering an execution to proceed. The appellant is the 30th defendant in the case. The 1st defendant died and the 30th defendant was brought in as the legal representative of the 1st defendant, the Rajah of Kalahasti. The suit was to recover money paid by the plaintiff on behalf of the defendants for cess, peishcush, etc. The plaintiff owns two villages in the zamindari and obtained a decree in the suit which makes the defendants jointly and severally liable, and not only directs recovery by the sale of the assets of the late 1st defendant in the hands of the 30th defendant but it is also said that in a portion of the decree, not printed, certain villages now held by the 30th defendant are ordered to be sold to satisfy the decree. The first thing to be noticed is that there has been no appeal and the reason that is given to us for that is this. 30th defendant wanted to appeal, but the plaintiff assured him orally that proceedings would be taken against him only in respect of his proportionate liability. So the question has arisen whether this is an adjustment of the decree out of Court under Order 21, Rule 2, and further whether the oral agreement is inconsistent with the decree. A further point is raised by Mr. L. A. Govindaraghava Aiyar for the appellant, and that is, that under the Impartible Estates Act (and it is not disputed, the estate of the 30th defendant is such an estate) it cannot be sold without the consent of the Collector and that the decree in so far as it asks for such a sale is void. The 30th defendant put in a defence in his character as legal representative and contended that he was not personally responsible, that he had succeeded to the impartible estate, that the plaintiff was not entitled to the first charge on the villages in the B Schedule or the jodi right of agraharam in C Schedule, that the liability of the 1st defendant to the plaintiff for non-payment of peishcush is one which cannot be enforced against this defendant or against any portion of the estate of Kalahasti which may have devolved on him by succession. The 9th issue raises the question which of the defendants, if any, and to what extent they, are liable, and whether the defendants or any of them are personally liable. The Subordinate Judge found that the plaintiff was entitled to recover from the 30th defendant the decretal amount from the assets of the 1st defendant in his hands and as the peishcush is the first charge on the zamindari the plaintiff was entitled to enforce this charge against the villages in the possession of the 30th defendant and on his jodi right over the villages in the plaint C Schedule and the villages in A, B and D Schedules which have not been separately registered and the proportionate peishcush unascertained.

2. On the matter coming before the Subordinate Judge he decided that it was not a plea of adjustment under Order 21, Rule 2 and that if it were, it would be barred by the limitation of 90 days. The Subordinate Judge, however, based his finding on his view that an agreement of this sort cannot be proved as it is not only contrary to the provisions of Section 92 of the Evidence Act but against the policy of the Civil Procedure Code. Any order for adjustment to be valid must comply with the requirements of Order 21, Rule 2; that is to say, the decree-holder must certify the adjustment and the same must be recorded by the Court. If it has not been certified or recorded as aforesaid, it shall not be recognised by any Court executing the decree. Whether Or not there has been an adjustment here within the meaning of the rule, it is perfectly clear that it has not been certified to the Court. The learned vakil for the appellant urges that the case ought to be sent down to the Subordinate Judge to find as to the truth or otherwise of the fact of the adjustment. Adjustment is said in Venkataswami v. Kotilingam : AIR1926Mad184 to be some method of settling the decree which is not provided for in the decree itself. If the decree-holder can still execute the decree in spite of the adjustment, then there has been no adjustment at all. Much stress is laid on the case reported in Debendra Narain Sinha v. Sourindra Mohan Sinha 24 IndCas 391, a case of the Calcutta High Court, and Ananda Priya Baishnavi v. Bijoy Krishna Ray 91 IndCas 705 simply follows it, where the learned Judges held that Section 92 of the Evidence Act does not apply to decrees and therefore oral evidence may be admissible in proof of an alleged oral agreement between the decree-holder and a judgment-debtor. This is based on the assumption that the words 'as between the parties to any such instrument or their representatives in interest' are to be read along with the words 'contract, grant or disposition of property' and also along with the words 'or any other matter required by law to be reduced to the form of a document'. On this assumption the learned Judges proceed to hold that the object of the Legislature was to deal with only two classes of cases, namely, first, contracts, etc., reduced to writing by the act of parties as mentioned in Section 91, and secondly, contracts, etc., required by law to be reduced to the form of writing; in other words, the expression 'any matter required by law to be reduced to the form of a document' is controlled by the expression 'as between the parties to any such instrument or their representatives in interest' and has in Section 92 a much narrower scope than in Section 91. This case though not quoted was obviously before two other Judges of the same High Court in Ananda Priya Baishnavi v Bijoy Krishna Ray 91 IndCas 705 and was followed. It is to the same effect, i.e., that Section 92 of the Evidence Act only refers to 'dispositive' documents, in other words, the words 'any other matter required by law to be reduced to the form of a document are ejusdem generis with contracts, grants or dispositions of property'. The case in Debendra Narain Sinha v. Sourindra Mohan Sinha 24 IndCas 391 has been disapproved by Napier and Krishnan, JJ., in S. A. No. 62 of 1920. They agree in saying that there is no warrant for the narrow construction placed on the material words by the Calcutta High Court, and, if I may say so, I respectfully agree with their opinion. In Lachman Das Baba Ramnath Kalikandiwala (1921) ILR 44 A 258 the judgment-debtor alleged an oral agreement and the decree-holder denied such an adjustment taking place. Both the Judges held that such an agreement as alleged could not be set up under Order 21, Rule 2 as a bar to execution and one of the learned Judges, Walsh, J., also held that under Section 92 of the Evidence Act it could not be set up as it was clearly a new agreement contradicting or varying the terms of the original decree.

3. Further it was contended by Mr. L. A. Govindaraghava Aiyar that under Order 21, Rule 2 there must be an actual payment in order to be an adjustment and not a promise. He quotes Lodd Govindoss v. Ramdoss (1915) MWN 225 for that proposition where the learned Judges held that an adjustment extinguishes the decree either in whole or in part and that a transaction by which the parties do vary the mode in which the reliefs granted by the decree are to be realised in execution is not an adjustment of a decree but it is an attempt to vary the terms of the decree. Such a variation is against the policy of the Civil Procedure Code and cannot be allowed as it is an attempt by the parties to alter the decree by methods which are not those recognised by way of review or appeal by the Code. It seems to me that this is enough to dispose of the first two points.

4. The third point is that even in execution the executing Court ought to have held that the decree is void in so far as it seeks to render liable the impartible properties of the 30th defendant. The preliminary decree in this suit was passed on the. .30th September, 1920 and the final decree on the 27th July, 1922. There was no appeal against the preliminary decree and this point was never even taken in the executing Court before the Subordinate Judge. It is taken here in an appeal from an executing Court for the first time. But the question turns on whether Section 6 of Act II of 1904 contains an absolute prohibition against the alienation of this impartible estate such as to render it incapable of being bound by the decree of the late Rajah. It was held in Venkatalingama v. Arunachellam Chettiar (1923) 19 LW 132 by Krishnan, J., and myself that no portion of the estate in the hands of the son could be made liable for a decree which had been passed against the late holder of the estate for misappropriating certain moneys that belonged to a temple. The policy of this Act is stated to be the preservation of the property in the family of the Zamindar who is practically for the time being in the position of a life-estate holder with powers of dealing with the estate under certain contingencies. I was at first inclined to think that the circumstances of this case, namely, the land itself being made liable for the Government revenue, would take it out of the line of cases where the land has been held, as in Venkatalingama v. Arunachellam Chettiar's (1923) 19 LW 132 case, to be inalienable for what may be called the private debts or defaults of the holder. There is, however, a line of cases which hold that, although the ordinary rule may be that you cannot go behind a decree in the executing Court, still, if there is a prohibition enacted by the Legislature on considerations of public policy, that prohibition is absolute and must be given effect to when the executing Court has it brought to its notice. For instance, in Raja of Viziamagaram v. Dantivada Chelliah : (1904)14MLJ468 (Subramania Aiyar and Sankaran Nair, JJ.) it was held that a decree directing the sale of lands prohibited from being attached and sold by Section 5 of the Madras Hereditary Village Offices Act is ultra vires. As the learned Judges point out there, if the interdiction upon alienation by parties or attachment or sale by the Court were merely for the benefit of private persons, they can waive the benefit introduced in their favour. But where the prohibition has some object of public policy in view, the rule is that the prohibition must be enforced literally and strictly, and in these circumstances it must be taken to be absolute and to deprive Civil Courts of all jurisdiction to give a direction for sale of such property in question. So again in Mayan Pathuti v Pakurm ILR (1899) M. 347 : 18999 MLJ. 98 (Subramania Aiyar and Davies, JJ. ). That was a sale in contravention of Section 99 of the Transfer of Property Act, and Subramania Aiyar, J., points out that, if you could say that the section was enacted for the protection of public interests and the law was to be regarded as laying down a rule of general policy rendering the prohibition absolute, the sale would be void. If, on the other hand, it were introduced simply for the benefit of a particular class of persons, the sale would only be voidable. Further again in Rangaswami Naicker v. Thirupati Naicker ILR (1904) M. 26 : 14 MLJ 413 it was observed that, if a decree is passed by a Civil Court which had absolutely no jurisdiction to pass it, the party to the proceeding may impeach it as a nullity though it has not been set aside in an appeal or otherwise. So also in Lakshmi Bibi Kujrani v. Atal Biliary Haldar ILR (1913) C. 534, a sale in contravention of the provisions of Chota Nagpur Tenancy Act and in Katwari v. Sita Ram Tiwari ILR (1921) A. 547, a sale in contravention of Section 20 of the Agra Tenancy Act. Finally, Wallace and Jackson, JJ., in L. P. A. No. 37 of 1927 have, I understand, decided, in considering the Full Bench ruling in Zamindar of Ettiyapuram v. Chidambaram Chetti : (1920)39MLJ203 , that the waiver of objection to the passing of the final decree did not carry with it the waiver of the right to object in execution to sale of the properties outside the jurisdiction of the Court. That, of course, was a case of territorial jurisdiction, but it appears to me that the same principle must apply. Therefore there seems to me to be a considerable body of opinion that, although a final decree may be passed without objection or even by consent, still the parties have no power by their act, nor indeed has the Court power, to evade the clear provisions of a statute, if it is passed in the interests of public policy and not merely to benefit a particular class or individual. With some hesitation and with some regret, considering the course this, case has taken in the Court below, I have come to the conclusion that this objection urged by the learned vakil for the appellant, though it is urged in appeal from an executing Court, must be given effect to.

5. The result is that the appeal must be allowed. As this has been taken as pointed out for the first time in the High Court, I am not disposed to make any order as to costs.

Curgenven, J.

6. In or about 1827 the then Rajah of kalahasti, which at that time was not, as it has subsequently become, an impartible estate, made a gift of three villages. Anjur, Pallam and Adaram, to his daughter and son-in-law on the occasion of their marriage. Attached to this gift was an obligation to pay a sum equivalent to Rs. 800 to the Rajah as the proportionate share in the peishcush. A. few years later the Rajah took back Adaram, at the same time relieving the donees of their liabilities to make the contribution, so that they held the other two villages as a tenure similar to free-hold. The present respondent has succeeded to the possession of Anjur upon these terms, while Pallam is in the hands of the 2nd defendant in the suit out of which this appeal arises. Various others of the zamindari villages were from time to time alienated to persons represented by others among the defendants. In Fasli 1324 the Rajah failed to pay the peishcush and road-cess amounting to some Rs. 14,000 upon the villages in his possession, and eleven villages, including the respondent's village, Anjur, were advertised for sale Anjur was in fact ordered to be sold first, and, to avert this, the respondent was forced to pay a sum of nearly Rs. 13,000 in order to obtain the release of his property from attachment. Accordingly he sued the Rajah and others holding portions of the estate for reimbursement of this sum. While the suit was proceeding, the Rajah (1st defendant) died and his successor was added as 30th defendant. A decree was passed in the terms set out by my learned brother against the assets of the 1st defendant in the hands of the 30th defendant and against various others of the defendants, making them jointly and severally liable for a certain sum. It is said that the 30th defendant, who is the appellant here, resolved to appeal against this decree in so far as it did not make his liability proportionate only to the extent of the estate still in his possession, and that he desisted from so doing upon receiving an undertaking from the decree-holder that he would not proceed against him beyond this limit. Nevertheless an execution petition was filed praying for the sale of certain of the appellant's villages in discharge of the whole amount recoverable from him under the decree. The petition was resisted upon the ground of the alleged undertaking, and it is from the order of the learned Subordinate Judge of Chittoor directing execution to proceed that this appeal is preferred.

7. The agreement, if in fact it was entered into, was oral, and the question how far such an agreement can be pleaded in bar of execution has been discussed under two aspects:

(a) that it was an agreement to adjust, if not an adjustment of, the decree;

(b) that it was an oral agreement varying the terms of the decree.

8. Now, as to (a), it is clear that if the agreement amounted to an adjustment of a portion of the decretal amount, it would be invalid as not certified under Order 21, Rule 2(3) of the Code of Civil Procedure, it has not been very strenuously argued that it does amount to an adjustment, and if we adopt Sadasiva Aiyar, J.'s definition in Lodd Govindoss v. Ramdoss (1915) MWN 225 of that term as 'a transaction which extinguishes the decree as such in whole or in part and results in a satisfaction of the whole or a portion of the decree in respect of the particular relief or reliefs granted by the decree' the agreement cannot be said to conform to that description. The further argument that a mere agreement to adjust, which falls short of an adjustment, need not be certified under Order 21, Rule 2 in order to bar execution, appears to me to be wholly untenable. If there must be not only an adjustment but, further, a certification of it, a fortiori, an agreement to adjust cannot avail the judgment-debtor.

9. I think it is clear that the alleged agreement falls under (b) above; it modifies the decree by restricting the appellant's liability in a manner for which the decree does not provide. As an oral agreement, I hold that it offends against the terms of Section 92 of the Indian Evidence Act. The learned Judges who decided Debendra Narain Sinha v. Sourindra Mohan Sinha 241 INDCAS 391 considered that the words 'any matter required by law to be reduced to the form of a document,' being controlled by the words 'as between the parties to any such instrument or their representatives in interest', must be construed as meaning 'contracts, grants, or other dispositions of property which are* required by law to be reduced to the form of a document'. With great respect I do not feel constrained by the language of the section to narrow its scope in this manner, more especially as it seems as objectionable that the parties to a decree should orally vary its terms as that they should so vary the terms of any 'dispositive' instrument. It does not therefore seem reasonable to attribute to the Legislature an intention to permit the one while prohibiting the other. Nor do I see any difficulty in applying the phrase 'the parties to any such instrument' to a decree-holder and a judgment-debtor. I prefer therefore to adopt the construction favoured in Lachman Das v. Baba Ramnath Kalikamlwala ILR (1921) A. 256 and by Napier and Krishnan, JJ., in S. A. No. 52 of 1920 and to hold that Section 92 does preclude the proof of an oral agreement modifying the terms of a decree.

10. The appellant has for the first time raised a further objection in this Court that Section 6 of the Impartible Estates Act is a bar to the execution of the decree against any villages in the estate, the consent of the Collector to the creation of a charge upon the estate, in respect of a debt incurred for the payment of land revenue, which that section requires, not having been obtained. This was a matter which might have been taken into consideration in framing the decree itself. Neither was this done, nor was an appeal against the decree preferred, nor did the appellant even raise the point before the Lower Court in the execution petition.

11. In all ordinary circumstances, therefore, it would be necessary to disallow it, and to adhere to the general principle that an executing Court cannot inquire into the validity of the decree. Hut there is a class of cases to which, 1 think, these considerations do not apply, namely, where execution of the decree would involve the infraction of a provision of law enacted in the public interest. The consideration that the parties may not have raised the point does not apply, because it may not have been in their interest to do so; and however far the doctrine that the executing Court should enforce the decree as it stands may be pushed, it cannot extend to an enforcement which involves breach of such a provision. It is the duty of the Court, however and whenever such a consequence becomes apparent to it, to stay-its hand. It is, of course, otherwise when the provision of law is designed to protect the interests only of the class of persons to whom the judgment-debtor belongs, so that it may be dispensed with without infringing any public right or public policy. (Maxwell on Interpretation of Statutes, 5th Edition, page 625.) This principle has been applied in a Madras case, Raja of Visianagaram v. Dantivada Chelliah ILR (1904) M 84 : 14 MLJ 468, where the Maharaja of Vizianagaram obtained a decree for the sale of a land under a mortgage. After the decree was passed it came to light that the land was a service in am, being the emoluments attached to the office of the village carpenter. Section 5 of the Madras Hereditary Village Offices Act (III of 1895) declares that such emoluments shall not be liable to be transferred or encumbered in any manner whatsoever, nor shall any Court attach or sell them. It was contended that, notwithstanding this prohibition, the decree for sale must be carried out. The learned Judges (Subramania Aiyar and Sankaran Nair, JJ.) held that if the interdiction upon alienation were merely for the benefit of particular persons, it might be waived; but where the prohibition had some object of public policy in view the rule was to enforce the prohibition literally and strictly. Finding that Section 5 had been framed on considerations of such a policy, they declined to order the sale. The same principle underlies the decision in Vasanji Haribhai v. Lallu Akhu ILR (1885) B. 285, where a mortgage suit was brought in respect of a land held upon a certain special tenure without obtaining the Collector's sanction, as required by law, and the decree was held to be void for that reason. . The distinction between a rule of law founded upon general policy and a rule enacted for the benefit of persons in the situation of the judgment-debtor is brought out in Mayan Pathuti v. Pakuran ILR (1899) M 347 : 1899 9 MLJ 98, where the question which arose was whether a sale under a mortgage decree in contravention of Section 99 of the Transfer of Property Act (now Order 34, K. 14 of the Code of Civil Procedure) was void. It was held that the object of the rule being to protect only persons concerned with the right to redeem mortgaged property, it could not be held to be void. For another instance of the effect of the introduction of a provision of law founded upon public policy, reference may be made to Lakshmi Bibi Kujrani v. Atal Bihary Haldar ILR (1913) C. 534, where the Chota Nagpur Tenancy Act, 1908, came into force between the passing of the preliminary and final decrees in a mortgage suit. The Act disabled the Courts from passing a decree or order for the sale of the right of a ryot in his holding, and it was held that neither should the final decree have been passed nor, if passed, should the property in question have been sold in execution. A plea of estoppel against the judgment-debtor was urged but the answer made to it was that he could not be estopped from bringing to the notice of the Court what the Court must be taken to have known of itself, that there was a distinct provision of law which prevented the sale of the property. A Full Bench of the Allahabad High Court has held to the same effect upon the general question in Katwari v. Sita Ram Tiwari ILR (1921) A. 547.

12. Raja Ramachandra Suru Harischandra Deo Garu v. Akella Venkatalakshminarayana (1918) 37 M.L.J. 65 is a case under Section 4 of the Impartible Estates Act, which prohibits a proprietor from alienating any portion of the estate except for family necessity. The learned judges refer to the policy underlying the Act, and decide that a mortgage decree for sale is unenforceable unless the terms of Section 4 are satisfied. Another case under the same section is Venkatalingama v. Arunachellam Chettiar (1923) 19 LW 132 decided by my learned brother and Krishnan, J. There, however, no question of refusing to enforce the decree arose, as it was a money decree; but it was held that the decree-holder could not proceed against the estate unless he showed that the debt was binding on the family.

13. The provision of law which, it is said, will be infringed by the sale directed under the decree is Section 6 of the Madras Impartible Estates Act (II of 1904). It lays down that 'the proprietor of an impartible estate shall be incapable of alienating or binding by his debts such estate or any part thereof beyond his own life-time for the payment of land-revenue due to Government, unless he shall have first obtained the consent in writing of the Collector of the district in which the estate is situated'. The Act of which this section forms part applies, as the Schedule shows, to a large number of estates throughout the Madras Presidency. Besides Section 6, Section 4, as I have already mentioned, also imposes a restriction upon the power of alienation by the proprietor for the time being; and it cannot be doubted that the object of the Act is the preservation of these estates in the hands of successive heirs, as a measure of public policy. Now if Section 6 incapacitates a proprietor from alienating the estate or any part of it, or binding it by his debts, beyond his own life-time, for the payment of land revenue, it is clear, I think, that he cannot do this indirectly by failing to pay the land revenue with the result that, after his death, the estate becomes bound in respect of a liability incurred on his behalf by a person interested to pay it. Under Section 69 of the Contract Act a person who is interested in the payment of money which another is bound by law to pay, and who therefore pays it, is entitled to be reimbursed by the other. The illustration furnished to this section affords a curiously close parallel to the present case; and there can be no question, 1 think, that, as soon as the decree-holder paid the arrears of land revenue, his right to reimbursement became ,a debt due to him from the Zamindar. (Cf. Section 35 of the Madras Revenue Recovery Act (II of 1864) which makes such a sum, when paid by a bona fide mortgagee or other incumbrancer 'a debt from the defaulter'). For that debt, now that the Zamindar who incurred it is dead, the estate cannot be proceeded against. It can be of no avail to urge that Section 6 does not impose an absolute bar, inasmuch as the bar may be removed by the consent in writing of the Collector. That consent was not obtained, but the prohibition accordingly stands good. I conclude, therefore, that the relief prayed for in the execution petition of 26th July, 1924, and allowed by the learned Subordinate judge in his order under appeal, must be refused, and I would allow the Civil Miscellaneous Appeal and dismiss the petition. I agree in making no order as to costs.


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