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Lodd Govindoss Krishnadas Varu Vs. P.M.A.R.M. Muthiah Chetty - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1925Mad660; (1925)48MLJ721
AppellantLodd Govindoss Krishnadas Varu
RespondentP.M.A.R.M. Muthiah Chetty
Cases ReferredThe Queen v. The Eastern Archipelago Company
Excerpt:
- - 2,89,000. 6. the learned vakil for the plaintiff submitted that the amount of consideration in a deed of assignment is perhaps the most important of the terms of a contract of assignment and in the clause above set out it is clearly stated in writing that the consideration agreed to be paid and payable by the assignee to the assignor is rs. but as the question, however, has been very ably argued and at great length on both sides, i might as well set out in brief my own views with regard to them. haragobinda sil (1922) 37 clj 552, justice sir ashutosh mukherji and justice chotzner held, following the madras decision, that while want or failure or difference in kind of consideration may be proved evidence to vary the amount of consideration in a deed is inadmissible. their lordships.....srinivasa aiyangar, j.1. two main questions, one of law and one of fact, are raised in the issues framed in this suit. the question of fact can be determined only on oral evidence being admitted with regard to certain allegations made by the defendant and the question of law relates to the admissibility of that oral evidence. the question of law raised is therefore really in the nature of a preliminary issue. at one stage i thought whether it would not really be wiser to allow also oral evidence to be adduced and to record a finding thereon for the contingency of a higher tribunal taking a different view, but mr. radhakrishniah, the learned vakil for the plaintiff, intimated to me that his client was willing to take the risk and cost of the court of appeal remanding the case in the event.....
Judgment:

Srinivasa Aiyangar, J.

1. Two main questions, one of law and one of fact, are raised in the issues framed in this suit. The question of fact can be determined only on oral evidence being admitted with regard to certain allegations made by the defendant and the question of law relates to the admissibility of that oral evidence. The question of law raised is therefore really in the nature of a preliminary issue. At one stage I thought whether it would not really be wiser to allow also oral evidence to be adduced and to record a finding thereon for the contingency of a higher tribunal taking a different view, but Mr. Radhakrishniah, the learned vakil for the plaintiff, intimated to me that his client was willing to take the risk and cost of the Court of Appeal remanding the case in the event of my decision on the question of law being in his favour and the same being set aside in appeal.

2. The facts so far as they are necessary for the determination of the main question of law may be set forth very briefly. The suit was originally instituted only against P. M. A. R. M. Muthiah Chetty and on his death his sons have been brought on the record as his legal representatives. The plaintiff who succeeded his father as the holder of a mortgage decree for a large amount in the District Court of Chittore assigned pursuant to an agreement with respect thereto an eighth share under the decree to the 1st defendant for an alleged consideration of Rs. 2,89,000. The deed of assignment, which has been marked as Ex. A in this case, bore the date the 1st day of October, 1917, and the material recitals in the deed were, that the plaintiff had agreed to assign to the 1st defendant the eighth share of the decree for a consideration of Rs. 2,89,000 to be paid by the 1st defendant to the plaintiff, whereof Rs. 89,000 was paid in advance on the day of the execution of the deed of assignment, and that, as regards the balance of consideration, namely, Rs. 2,00,000, other arrangements set out therein had been made for the payment thereof by the 1st defendant to the plaintiff and the operative portion of the deed proceeds to witness that the eighth share in the decree was thereby assigned by the plaintiff to the 1st defendant in pursuance of the said agreement and in consideration of the said sum of Rs. 2,89,000 paid and payable as aforesaid.

3. The plaintiff's case is, that though in the said deed it was recited that the sum of Rs. 89,000 payable under the agreement on or before the execution of the assignment had been paid up, only a sum of Rs. 60,000 had been so paid and that the balance of Rs. 29,000 had not been paid and that therefore, he was entitled to a decree for that amount with interest thereon at 12 per cent. per annum.

4. The defendant's case in substance is, that the consideration really agreed to between the parties for the assignment was only Rs. 2,60,000, that the consideration, however, was agreed to be recited in the deed of assignment at Rs. 2,89,000, that it was no doubt true that only Rs. 60,000 was paid on or before the execution of the assignment, that the balance of Rs. 29,000 was not paid as it was never intended to be paid, and that it was for that reason and for the purpose of carrying out the real intention and agreement between the parties that though only Rs. 60,000 was paid it was recited that Rs. 89,000 had been paid up by the 1st defendant and received by the plaintiff. The defendants do not rely upon any other writing for the purpose of proving their contention and it is conceded that the arrangement set out by them was only parol. It was apparently thereupon that the issue has been raised whether it is open to the defendants to plead that the consideration for the assignment was only Rs. 2,60,000 and not Rs. 2,89,000 as recited in the deed. The question is not free from difficulty and has become particularly complicated by reason of the fact that in the deed of assignment the balance which, according to the plaintiff, was still payable and had not been paid is recited to have been paid up. The learned vakil for the plaintiff, Mr. Radhakrishnayya, put his contention thus : The recital in the deed of assignment of the payment of Rs. 89,000 by the 1st defendant to the plaintiff is a recital of fact and there can be no question that the law allows the parties to a deed to show by oral evidence that a recital of fact in a deed is not true. In this case there is no question of the plaintiff having to show by oral evidence that the recital is not true because the defendants in their written statement admitted that the recital is not true. On the admission of the defendants, therefore, the plaintiff's case that only Rs. 60,000 out of Rs. 89,000 had been paid has been established. As regards the balance of Rs. 29,000 the defendants attempt to prove that the consideration agreed to was not Rs. 2,89,000, but only Rs. 2,60,000, is an attempt to vary the terms of a contract; that in this case the terms of the contract have been reduced to writing in the deed of assignment and that therefore the defendants are not at liberty to contradict the writing by parol evidence. The clause in the deed of assignment referring to the terms of the contract is as follows:

Whereas the said Lodd Govindoss has agreed to assign to the shareholder Mr. P M A R M Muthiah Chettiar 1| 8th-(one-eighth) share or 12 1|2 per cent. of the said decree amount together with the securities therefor and the outstanding arrears of rents and profits as standing on this day that may be realised according to the accounts of the Taluk Office for a consideration of Rs. 2,89,000 (Rupees two lakhs and eighty-nine thousand) to be paid by the shareholder Mr. P M A R M Muthiah Chettiar to the Said Mr. Lodd Govindoss Krishnadoss.

5. This same amount of consideration, namely, Rs. 2,89,000 is mentioned elsewhere in more than one place in the same document as the total amount of consideration or price payable by the assignee and the rights and liabilities are according to the scheme set out in the document created with special reference to that amount as the amount of the consideration or price and what is more than all it is stipulated and provided particularly that if and so long as the assignee should not have paid to the assignor the whole amount of the said consideration of Rs. 2,89,000 the profits or properties or sale proceeds he shall receive shall be that fraction of the one-eighth share which the amount he had paid till then is of the total price of consideration of Rs. 2,89,000.

6. The learned vakil for the plaintiff submitted that the amount of consideration in a deed of assignment is perhaps the most important of the terms of a contract of assignment and in the clause above set out it is clearly stated in writing that the consideration agreed to be paid and payable by the assignee to the assignor is Rs. 2,89,000, and that, therefore, under Section 92 of the Evidence Act, the defendant is not entitled to seek to adduce parol evidence to contradict this term of the contract reduced to writing between the parties. In fact his contention was that it was unnecessary for him really to go beyond the terms of the section. But he has also referred to numerous cases for the purpose of supporting his contention. The decision in Adityam Aiyar v. Ramakrishna Aiyar (1) by a Bench of this Court is a case directly in point. That case has not been sought to be distinguished from the present case and if I am bound by the decision in that case as undoubtedly I am, it is unnecessary for me to go further and discuss the various contentions raised before me by the learned vakil for the defendants, Mr. Chandrasekhara Aiyar, for the purpose of showing that that decision is wrong. But as the question, however, has been very ably argued and at great length on both sides, I might as well set out in brief my own views with regard to them.

7. In Lalasingh v. Basdeo (1923) 71 IC 768 Mr. Justice Walsh of the Allahabad High Court followed the decision of this Court in Adityam Aiyar v. Ramakrishna Aiyar : (1913)25MLJ602 . Similarly in the case of Annada Charan Sil v. Haragobinda Sil (1922) 37 CLJ 552, Justice Sir Ashutosh Mukherji and Justice Chotzner held, following the Madras decision, that while want or failure or difference in kind of consideration may be proved evidence to vary the amount of consideration in a deed is inadmissible.

8. The case of Cowasji Ruttonji Limboowalla v. Burjorji Rustomji Limboowalla ILR (1888) B 335 was also referred to on behalf of the plaintiff. The plaintiff's contention has thus been sought to be reinforced by the decision of all the High Courts in India.

9. In this state of the authorities Mr. Chandrasekhara Aiyar, vakil for the defendants, was bound to argue that the decision in Adityam Aiyar v. Ramakrishna Aiyar : (1913)25MLJ602 by this Court was wrong. He put forward his contentions in four ways. The first was that if one party to a deed came forward with the case that a particular recital in a deed regarding the consideration for the transaction was not true and he should be allowed to prove it, then, the other party to the deed should be allowed and becomes entitled to prove the real agreement between the parties in spite of the provisions of Section 92 of the Evidence Act. The second contention was that the terms of the contract of assignment on a proper construction of the 'deed of assignment were that the assignment should be made on the basis of Rs. 89,000 already paid and received by the assignor and in consideration of the arrangement made for the payment of the balance and that therefore there was really no question of varying the terms of the contract. The third contention was that on a proper construction of the deed of assignment the sale was partly for a past consideration, namely, the admitted payment of Rs. 89,000, and that there could be no question in law of the adequacy or otherwise of the past consideration. The fourth contention was that under the Indian Law a creditor was entitled to give up validly and so as to bind himself any portion of the amount due to him and that, therefore, if out of Rs. 89,000 due and payable by the assignee, the assignor gave up voluntarily Rs. 29,000 and agreed to accept Rs. 60,000 in lieu of Rs. 89,000 it was tantamount to receipt in full of Rs. 89,000.

10. I shall deal briefly with these several contentions. The first contention set out above is based on the general principle of law that a person cannot both approbate and reprobate the same transaction and the leading Indian case on this point relied on for the defendants is Shah Mukhun Lal v. Baboo Sree Kishan Singh (1868) 12 M IA 157. That was a case in which their Lordships of the Privy Council held that three separate documents constituted but one transaction and having so held refused to allow the plaintiff whose case it was to contend for other purposes of his own that only one of these three documents should be looked at. What their Lordships did was gathering the real intention of the parties from all the documents to give effect to it as far as the Usury Laws of Bengal would allow. Their Lordships themselves reiterated in their judgment that the rules of evidence and the law of estoppel forbid any addition to or variation from the deeds or written contracts and merely proceeded on the well-known principle of law that a party cannot both affirm and disaffirm the same transaction. Such a principle cannot be invoked in respect of a different recital in deeds and no such principle can be Paid down as that a person who states that any portion of a document is true and binding between the parties should not be allowed to state that any other recital in the document is false.

11. If the principle that a party cannot approbate and reprobate at the same time is applicable to the case of recitals in documents it can only be by limiting its operation to the same recital and postulating that a party should not be allowed to approbate and reprobate the same recital, that is to say, state that it is untrue and at the same time seek to rely upon it. If the principle should be applied to different recitals in the same document, then, the numerous cases in which it has been repeatedly held that a party might be allowed to prove the falsity of the recitals of facts in documents would all have to be regarded as wrongly decided, but their Lordships of the Judicial Committee in the case of Sah Lal Chand v. Indarjit ILR (1900) A 370 have laid down as settled law that where there has been a false acknowledgment by recital in a deed : of sale of the payment by the purchaser of the consideration money and its receipt by the vendor, it is open to the latter to prove that no consideration money was actually paid. The admissibility of such proof was not calculated to infringe any provision of Section 92 of the Evidence Act. In another case reported in the same volume, Balkishen Das v. Legge ILR (1899) A 149, their Lordships of the Judicial Committee lay down at pages 158 and 159 that questions regarding the admissibility of evidence should be decided only by reference to the Evidence Act and that the decisions of the English Court of Chancery have no application to the law of India as laid down in the Acts of the Legislature. Their Lordships, therefore, decided that oral evidence was inadmissible for the purpose of constructing the deeds or ascertaining the intention of parties. Strong reliance was placed by the learned vakil for the defendants on the reversal by their Lordships of the Judicial Committee of the Privy Council in their decision reported in Hanif-un-mssla v. Faiz-tin-nissa ILR (1911) A 340 of the judgment of the Allahabad High Court in Faiz-un-nissa v. Hanif-un-nissa ILR (1905) A 612. Lord Macnaghten in delivering the judgment of their Lordships summarily sets aside the judgment of the High Court as unsustainable. There is no discussion in that case of the principles of the decision, but it was contended that as the learned Lord directed that High Court should deal with the case on the evidence, it was an authority for the position that the judgment of the Allahabad High Court was wrong, which was to the effect that evidence was inadmissible to prove that what on the face was a sale deed was really intended to be and was a deed of gift. In the absence of any detailed statement of the grounds of the decision by their Lordships of the Judicial Committee I cannot assume that their Lordships intended to throw any doubt whatever on the decision of the Board in the case of Sah Lal Chand v. Indarjit ILR (1900) A 370. On the face of the judgment of the Allahabad High Court set aside so summarily by the Judicial Committee there is no doubt some room for such a contention as has been made by the learned vakil for the defendants. But on a close examination of the facts of the case of Faiz-un-nissa v. Hanif-un-nissa ILR (1905) A 612 it must be fairly clear that in the document which was the subject of construction, though there was a recital of an alleged fact that Rs. 60,000 had been paid by the transferee to the transferor, the document did not contain or purport to set out as such the terms of any contract grant of other disposition of property. If a deed does not set out the terms of the contract as such and merely contains the recital of the payment of some amount as consideration, the recital of payment is the mere recital of a fact which can be disproved, and it cannot be contended that though the terms of the contract are not as such set out the terms should be implied or inferred from the recital and parol evidence disallowed for the purpose of contradicting or varying such inferred or implied term of the contract or grant. I am therefore unable to regard the decision in Hanif-un-nissa v. Faiz-un-nissa ILR (1911) A 340 as an authority for holding that even though a deed might actually contain and set out the terms of a contract, oral evidence may be allowed to be adduced by one party to contradict or vary such terms if the other party should allege or seek to prove the falsity of any recital of fact in the deed.

12. The case that at first sight seemed to support considerably the contention of the defendant was the decision in Chunni Bibi v, Basanti Bibi ILR (1914) A 537. That was a case in which the question that arose was whether when the plaintiffs alleged that they had not received the balance of consideration for a sale which was recited in the sale deed to have been paid to and received by them it was open to the defendants-purchasers to set up and prove that the real price agreed upon was different from and less than the amount for which the sale deed was made. In the course of his decision, Mr. Justice Chamier tried to distinguish from the facts of the case before him the case of Adityam Aiyar v. Ramakrishna Aiyar ILR (1913) M 514 : 25 MLJ 602. I am, however, constrained respectfully to state that I am unable to appreciate or approve of the ground of distinction. I venture to think that there has been a great deal of confusion introduced in the consideration and discussion of the various cases referred to. At page 548 Mr. Justice Chamier sums up as follows : 'On the authorities I would hold that as the respondents have alleged and proved that the whole of the consideration, receipt of which is acknowledged in the deed did not pass, the appellant is entitled to produce oral evidence in support of her allegations and as the Court below did not allow her to produce such evidence, I would remand the case for a fresh trial. ' The other learned Judge, Justice Banerji, merely refers to the case of Hanif-un-nissa v. Faiz-un-nissa ILR (1911) A 340 and held that as in that case their Lordships of the Privy Council decided that oral evidence can be given by the defendants to prove the real nature of the transaction, their Lordships were apparently of the opinion that the case would come within the first proviso to Section 92 and on that reasoning he agreed with the order proposed by Mr. Justice Chamier. From the statement of the case by either learned Judge in that case, I am unable to ascertain whether, apart from the clause in ., the recitals referring to the receipt of the whole consideration by the vendor, there was in the document any statement of the terms of the contract as such. From the words used by Mr. Justice Chamier I am rather inclined to think there was not. If there was not any such enumeration, then I must take it that what the deed contained was the recital of the fact of the receipt of Rs. 40,000. Such a clause should be deemed merely to be a recital of fact regarding the payment of consideration and cannot be regarded as a clause setting out the terms of the contract or the terms on which the sale was agreed to be made. As I have already observed, from such a clause of the recital of the receipt of certain consideration, the terms of the agreement could only be inferred and therefore the clause itself could not be regarded as containing in writing the terms of the agreement. The expression 'terms of the disposition of property ' may be considered to be either the terms of the agreement relating to the disposition of property or the terms on which the property is alleged in the deed to be disposed of. If the latter construction should be adopted numerous decisions of all the High Courts including several of the Judicial Committee of the Privy Council would have to be regarded as opposed to the clear terms of the section. The expression should therefore be construed merely as meaning the terms of the contract made with regard to the disposition of the property. So construed and bearing in mind the weight of judicial opinion with regard to the matter, it must be held that if a document merely refers to the amount of consideration in the clause reciting the fact of the receipt of it, the document is not one in which the terms are reduced to writing, within the meaning of Section 92 of the Evidence Act. if this view is correct and if, as I think, there was no such separate enumeration of the terms in the document in the case of Chunni Bibi v. Basanti Bibi ILR (1914) A 537 the judgment in that case need not further be regarded. But if, on the other hand, there was in the document in that case a setting out the terms apart from the recital of the receipt of consideration, it seems to me to be impossible to consider that case as rightly decided. No rule of equity, it seems to me, can be allowed to over-ride the provisions of statutory law more especially of such a rule as is laid down in Section 92 of the Evidence Act with all its provisos. If therefore the decision in the case of Chunni Bibi v. Basanti Bibi ILR (1914) A 537 was to the effect that even though a document might contain all the terms of the contract, still because one party seeks to show by oral evidence that a certain recital of fact regarding the receipt of consideration is false which is not opposed to any provision in that section and which he is entitled to do as that section has been construed, the other party would then become entitled to disregard altogether the provisions of Section 92 of the Evidence Act is a proposition which I feel I cannot possibly accede to. I have therefore come to the conclusion that the first contention of the learned vakil for the defendants is not tenable.

13. The second contention of the learned vakil for the defendants that the recited payment of the consideration of Rs. 89,000 should itself be regarded as the consideration for the assignment may no doubt be arguable if all that the deed contained was merely such a recital and there were not in the document set out the terms of the contract relating to the assignment. When the terms are distinctly set out, it is impossible to regard a mere recital of payment as anything other than a mere recital of fact which may be disproved.

14. The other two contentions of the learned vakil for the defendants may be conveniently dealt with together. They are merely different aspects of one and the same thing, namely, that whatever the agreement might have been regarding the terms on which the assignment was originally agreed to be made, still when it came to the actual execution of the deed of assignment, the parties chose for reasons of their own to put through the assignment on the footing of the assignor having actually been paid and received a total sum of Rs. 89,000 and of the balance alone being payable in the manner indicated in the deed. No doubt under the Indian Law the creditor is entitled to give up a portion of his claim, and there need be no consideration for any agreement by him so to give up. But before such an argument could be advanced, there must be a plea to the effect that that was what was done. If the defence was that though originally the price was agreed to be Rs. 2,89,000, still, subsequently the parties came together and the assignor agreed to accept Rs. 60,000 in lieu of Rs. 89,000, the plea may be valid. But that is not the plea. It may no doubt be contended that it is a mere matter of form. But, in my view, it is not a mere matter of form and it is really a matter of substance, something relating directly to the exact manner in which it was done. There are also obviously many difficulties in the way of considering the payment recited in the deed of assignment of the sum of Rs. 89,000 as past consideration in relation to a contract.. Past consideration is something that had been done at the request of the promisor prior to entering into the contract. This is not such a case. I cannot, therefore, possibly accede to the, contention that the recital of the payment of consideration of Rs. 89,000 should be regarded as recital of past consideration* and that on such footing no enquiry should be permitted of the quantum of consideration.

15. The learned vakil for the defendants cited several cases to show that evidence has always been held to be admissible to show that the consideration recited in a deed was not the real consideration but that the real consideration was different. Kailash Chandra Neogi v. Harish Chandra Biswas 5 CWN 158; Nathu Khan v. Sewak Koeri 15 CWN 408; Mahomed Yusuff v. Mahomed Musa (1907) 4 ALJ 441; Lala Himmat Sahai Singh v. Llewhellen ILR (1885) C 486; and Vasudeva Bhatlu v. Narasamma ILR (1882) M 6.

16. In none of the above cases does it appear that apart from the reference to the consideration in that part of the document containing the recital of the receipt of it there was anything in the document which can be regarded as setting out in writing the terms of the contract. In fact, in the last of the above cited cases which was strongly relied upon, the learned Judges state as follows : ' The provisions of the Evidence Act, Section 92, to which the District Judge refers, do not prohibit the disproof of a recital in a contract as to the consideration that has passed by showing that the actual consideration was something different to that alleged.'

17. A sort of a supplementary contention was also put forward by the learned vakil for the defendants. It was this : The deed of assignment provided that in default of payment by the assignee of any portion of the purchase money or consideration he was not only not entitled to get a proportionate share of the rents and profits but he was further not to be entitled to a proportionate share in the properties that may be purchased by the decree-holder-assignor or the sale proceeds that may be realised by him on execution of the decree, and it was argued that if a particular remedy was provided between the contracting parties in the event of breach of contract or covenant by one of the parties, the other party should be confined only to that particular remedy and is not entitled to any other remedy and that he cannot even enforce the covenant expressed or implied in the manner of specific performance but must be relegated merely to the penalty or damages provided in the document. For this contention the learned vakil for the defendants referred to the case of The Queen v. The Eastern Archipelago Company 1 El & Bl 311. In that case the learned Judges were equally divided with the result that the rule was refused. I cannot, therefore, regard the judgment in that case as laying down any principle which is available for application to the present case.

18. After all, the question whether a person is entitled to have a covenant enforced or to any remedies other than the remedy indicated in the contract, is a question of the intention of the parties to be deduced--whether on a proper construction of the entire document the remedy provided is cumulative or exclusive. Having regard to the terms of the document before me, I cannot possibly construe the remedy given to the assignor in the event of the assignee not paying the whole of the purchase money or consideration for the assignment as an exclusive remedy. In my view, the remedy is only cumulative and cannot deprive the plaintiff of the right to enforce the contract itself. The result of my holding otherwise would really be to reduce the so-called contract to a nullity, because, if there was no obligation on the part of the purchaser to pay the purchase money, and if on a construction of the contract he should be regarded only as entitled to a proportionate share of the rents and profits or of the properties or of the sale proceeds proportionate to the amount of the purchase money paid by him, then there is really no contract binding between the parties and what the parties should be deemed to have done was only to settle the terms of a proposal which might be turn-. ed into a contract only as and when the assignee pays the purchase money or portions thereof to the assignor. I refuse to regard the document under reference in any such light. I have no doubt whatever that what the parties really intended was that the consideration stipulated should be paid by the assignee to the assignor and they were only providing a sort of cumulative remedy for the event of the assignee not paying at any time the whole of the purchase money.

19. The conclusion, therefore, that I have arrived at is that the document, Ex. A, contains the terms of the contract between the parties, that it was a term of the contract of assignment, that the sum of Rs. 89,000 should be paid by the assignee to the assignor on or before the execution of the deed, that it is admitted by the defendants that only Rs. 60,000 was paid and that the balance of Rs. 29,000 was not paid, that there is no plea by the defendants that this balance of Rs. 29,000 was ever validly given up or that any other subsequent arrangement was validly entered into with regard to that amount, that the defendants are not entitled to show by oral evidence that the price agreed to was only Rs. 2,60,000 and not Rs. 2,89,000 in the face of the writing in Ex. A to the effect that the price agreed to be paid and payable by the deceased 1st defendant was Rs. 2,89,000. This disposes of the amount in question in the suit and it follows that the defendants are liable to pay to the plaintiffs the sum of Rs. 29,000, the admitted unpaid balance.

20. The next point for determination between the parties is with regard to the claim of the plaintiff for interest on the said sum of Rs. 29,000, the amount of unpaid purchase money. Having regard to the view taken by me on this question, I consider it unnecessary to deal in detail with the various grounds on which the learned vakil for the plaintiff put his case whether the claim is under the Interest Act or under the Transfer of Property Act or under the general law as and by way of damages. The principle underlying such claims is that whereas one party has under the arrangement derived all the advantages or secured all the rights stipulated for in the transaction, the other party has not received the full consideration stipulated for, and in respect of the amount wrongfully withheld some compensation should be made by award of interest or damages which might bear some relation either to the possible profits that might have been made with the money wrongfully detained by the person so detaining or to the possible profits that might have been earned by the person, from whom the money is withheld if he had had the money which has been withheld from him. But I have already referred to the clause in the document by which in the event of the assignee not paying to the assignor the whole amount of the price, then, the profits payable or receivable by the assignee until he pays up the whole amount should be only that fraction of the one-eighth share which the amount already paid up by him is of the total price or consideration of Rs. 2,89,000. In other words, though the assignee may be compellable to pay the purchase money at any time after each particular portion thereof should become payable, still a penalty is provided for default in payment and the penalty is that he is not liable to receive from the assignor profits out of the one-eighth share, the Interest Act, it is in the discretion of the Court to allow interest or not. It cannot also be said in this case that the debt is payable by virtue of some written instrument at a certain time, because in the written instrument itself there is no covenant to pay, and unless there is a covenant to pay, the amount cannot be said to be payable by virtue of a written instrument.

21. As regards the argument that interest is payable under Clause 4, Sub-clause (b) of Section 55 of the Transfer of Property Act, assuming that the assignment of a mortgage decree is a sale of immoveable property, there can be no doubt that the particular sub-clause contemplates interest being payable only if the ownership of the property has entirely passed to the buyer and the property is in the hands and therefore in the enjoyment of the buyer. In the present case, not only is the profit claimable by the assignee proportionate to the amount of purchase money he has paid but the property or the sale proceeds to which he is entitled after execution is also stipulated and provided to be only proportionate to the amount of the purchase money paid by him. I cannot therefore regard the present case as one in which the ownership of the property has absolutely passed to the purchaser in respect of the whole interest the subject-matter of the bargain; nor can I regard it as a case in which the property is in; the hands of the buyer so as to enable him to enjoy the rents and profits thereof. The principle underlying the said clause undoubtedly is that if the buyer gets the title and enjoyment of the property purchased by him and does not pay any portion of the purchase money to the seller, he is bound to compensate him at least by payment of interest. In this case if the assignor suffered no damages and therefore does not need to be compensated, no question can arise regarding the payment of interest on the amount due. The same principles are also applicable to the claim regarded as one for damages for wrongfully withholding the purchase money. Further, no evidence has been adduced to show that so far as the plaintiff is concerned the share of rents and profits proportionate to the unpaid purchase money which the plaintiff will not have to pay to the defendants would not be adequate either as interest or as damages. With regard to the claim for interest, I have therefore come to the conclusion that the plaintiff is not entitled to any interest on the amount of the claim.

22. One last question also argued but not very strenuously by the learned vakil for the defendants should also be referred to. That related to the fourth issue as to whether the plaintiff's claim is barred by the Law of Limitation. The contention was that the plaint in the suit, when it was instituted was signed by the plaintiff but by a person who purported to act as the agent of the plaintiff but who had not at the time of the institution of the suit obtained leave to sign and verify the plaint on behalf of the plaintiff. The plaint was presented to Deputy Registrar on the 1st of October, 1920, it is said, on the last day of limitation. On that day, the plaintiff's agent had not obtained the necessary leave from the Deputy Registrar to sign and verify the plaint as the plaintiff's agent. That leave was granted subsequently by a learned Judge of this Court. The contention of the defendants is that for there being a proper plaint presented to the Court, leave to the ant to sign and verify the plaint is a condition precedent and until and unless such leave was contained, there was no proper plaint before the Court. I cannot possibly accede to the contention. On the last day of limitation there was a plain before the Court in which the plaintiff now before the Court was stated to be the plaintiff and his agent purported to sign and verify the plaint on his behalf. The failure or omission to obtain leave was a mere irregularity and to hold that>y reason of any such defect there was no proper plaint presented to the Court on that day would lead in most cases to dastrous consequences. Apart from that, I am not at all sure that with the plaint signed and verified as it was by the person who purported to act as the agent of the plaintiff and the order of the learned Judge of this Court granting leave, such leave when granted did not relate back to the institution of he suit and cure any irregularity attaching to the signing or verification of the plaint. In these circumstances I must holt that there is really no substance in the pleas of limitation embodied in the fourth issue.

23. In the view I have taken of the second issue it has become unnecessary to consider the first issue.

24. In the result, on my findings, there will be a decree in favour of the plaintiff for a sum of Rs. 29,000 without any interest. The defendants would be liable to pay interest from the date of the decree till payment at 6 per cent. per annum. There will be no personal liability as against the defendants, but the defendants would be liable to pay the amount decreed from and out of the assets of the deceased 1st defendant and the properties of the joint family in their hands. The defendants would also pay to the plaintiff the costs of the suit, the vakil's fees being calculated on the sum of Rs. 29,000 awarded to the plaintiff.

25. Mr. Chandrasekhara Aiyar, on behalf of the defendants, submits to that costs should be granted to his clients on the amount of interest claimed in the plaint and disallowed by me. I did not realise that it was such a large amount is about Rs. 10,000. I do not see any reason why costs should not follow the event with regard to the interest. The plaintiff will pay the defendants as and for costs of the interest disavowed the sum of Rs. 350.

26. The execution of the decree will be stayed for fifteen days, and if, by that time, the defendant pay into Court the amount decreed, then the plaintiff will draw the amount on furnishing security to the satisfaction of the Deputy Registrar of the Court, binding himself to repay the amount in the event of the case going against him in appeal.


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