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Sutharsana Chariar and anr. Vs. S. Samarapuri Chettiar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1928Mad690; 110Ind.Cas.837
AppellantSutharsana Chariar and anr.
RespondentS. Samarapuri Chettiar and ors.
Cases ReferredNarasingerji Jyanagerji v. P. Parthasaradhi Rayanam Garu A.I.R.
Excerpt:
- srinivasa ayyangar, j.1. in this case, we have heard arguments at some considerable length but before dealing with the points that arise for determination in the appeal itself, an objection to the competency of the appeal raised on behalf of the respondents may be disposed of. the objection that was taken was really two-fold. the facts relating to the objection may be very briefly stated. in the court of first instance, before the learned subordinate judge, the plaintiffs obtained a decree and defendant 2 filed an appeal to the district court. during the pendency of that appeal, defendant-appellant 2 became an insolvent and all his right, title and interest became vested in the official assignee of madras, who was brought on the record as appellant 2. the appeal proceeded and the district.....
Judgment:

Srinivasa Ayyangar, J.

1. In this case, we have heard arguments at some considerable length but before dealing with the points that arise for determination in the appeal itself, an objection to the competency of the appeal raised on behalf of the respondents may be disposed of. The objection that was taken was really two-fold. The facts relating to the objection may be very briefly stated. In the Court of first instance, before the learned Subordinate Judge, the plaintiffs obtained a decree and defendant 2 filed an appeal to the District Court. During the pendency of that appeal, defendant-appellant 2 became an insolvent and all his right, title and interest became vested in the Official Assignee of Madras, who was brought on the record as appellant 2. The appeal proceeded and the District Judge allowed the appeal and dismissed the plaintiffs' action. It was thereupon that the plaintiffs preferred this second appeal. The objection that is now taken is that the real party interested in opposing the appeal and interested in the subject-matter of the appeal who is the Official Assignee at present, has not been property made a party to this second appeal at all, and secondly that if the Court should consider that he was properly made a party respondent to the appeal, the appeal had become barred by the law of Limitation when he was so made a party-respondent.

2. It is clear from a glance at the memorandum of appeal filed in this -second appeal that the name of the Official Assignee was not shown in the first instance as a party-respondent in the cause-title. The appeal itself seems to have been presented to this Court on 20th November 1925 and what we notice is that more than a year thereafter on 3rd December 1926, the name of the Official Assignee is inserted by way of correction and authenticated by the 'initials of the Deputy Registrar of this Court. I think there is considerable force in the argument of the learned Counsel for the respondents that the lugging in of the name of a respondent in that manner cannot properly be regarded as adding a new respondent to the appeal in the proper manner. There is also no doubt whatever that, right or wrong, the view taken by the Officer of this Court who authorized the correction was that the omission of the Official Assignee from the roll of respondents was in the nature of a clerical error, and that therefore having regard to the terms of rule 20 of the Appellate Side Rules of this Court, it was an error the correction of which the Registrar was competent to authorize. The question that therefore arises is whether in view of these facts, the true and proper view to take is whether it was merely in the nature of a clerical error that was properly allowed to be corrected by the authority of this Court entitled to do so, or whether the correction was, as contended for the respondents, tantamount to making a new party to the appeal and therefore unauthorized. One other question, of course, would also arise if the view taken should turn out to be that the Official Assignee must be regarded as having been made a party-respondent to this appeal only on 3rd December 1926, or in other words, if the view taken should be that the appeal, so far as the Official Assignee is concerned, was presented only on that date or must be so regarded, and that is the question of extension of time for filing the appeal.

3. With regard to the first of these questions, it is clear that the appellants in this case had absolutely no purpose or motive whatsoever in not making the Official Assignee party-respondent to the appeal. He was the real appellant in the Court below and a perusal of the grounds of appeal show that the appeal related entirely, if not exclusively, to matters in which the Official Assignee was directly interested. After all, an appeal is merely in law, in the nature of a petition to the Court of appeal by the party feeling aggrieved by the judgment and decree of the lower Court for the purpose of reversing or modifying such judgment or decree and the memorandum of appeal is nothing but the grounds on which the person preferring the appeal asked the appellate Court so to reverse or modify the decree. If, therefore, from the grounds of appeal it is perfectly clear that the relief prayed for by the appellants at the hands of the Court of appeal had relation almost exclusively to the matters in which the Official Assignee was directly interested, there is really no reason to suppose that for some reason unexplained, if not also inexplicable, the appellants should have abandoned the appeal so far as the Official Assignee Was concerned or should be deemed to have elected to exonerate him. There may be cases in which such an inference may be possible, but this is not such a case. Now then, if there is no room for the conclusion that the appellants may be regarded as having elected not to proceed against the Official Assignee in the appeal, what is the result? The result is that for some reason, his name alone was omitted to be inserted in the category of respondents in the cause title. 'What was it due to?' is the next question. With regard to this, we have the statement made by the learned vakil who appears for the appellants and preferred the appeal in the letter he wrote to the officer of this Court and also made personally to us that it was due to a mistake that the name was omitted and that the mistake was due to his clerk, who after the grounds of appeal were drafted was directed to copy out the cause title, happening to copy out the cause title of the case from the records of the litigation at an earlier stage, at a stage in which the Official Assignee was not a party, because the case had been before the District Court from the Court of first instance more than once.

4. One question that was raised in this connexion by the learned Counsel for the respondents may also be adverted to. Mr. K.S. Krishnaswamy Aiyangar argued that it is not open or proper to this Court merely to take the statements of the learned vakil for the appellants either made in Court or set out in a letter addressed by him to the Registrar of this Court and that the proper procedure should be to require him to file an affidavit as evidence before the Court explaining the manner in which the mistake came to be made When Mr. K.S. Krishnaswamy Ayyangar advanced this contention, we asked him whether he had instructions or materials for cross-examining the learned vakil with regard to the statements made by him, but it was not suggested that such were his instructions or that it was proposed to controvert those statements in any manner. In this connexion, it may be observed that though vakils and other practitioners of the Court, when they are called upon to speak to facts known to them by way of evidence in any litigation, are not different from other witnesses and would have to depose like all other witnesses, still a well recognised practice has grown up in all Courts of accepting the statements from the Bar of practitioners with regard to matters in connexion with the very litigation in which they are engaged as practitioners. For that purpose, they are really regarded as officers of Court owing a duty to the Court. When it comes to a question of elucidation of facts within their knowledge in the course of the litigation which is under consideration before the Court, the practice has always been to accept statements from the Bar of such practitioners, because it is expected that such statements would be made and would be truly made with a full realization of the sense of responsibility they are under. We should be sorry in any manner or measure to detract from that full sense of responsibility which members of the; Bar should be under. I do not wish to be understood that there may not be case where it would be more proper or useful that the practitioner concerned should not merely make a statement from his position in the Bar but also give evidence and be cross-examined. There may be such cases, but I am satisfied that having regard to the circumstances in this, case, such a procedure is not called for.

5. If there could be any reasonable doubt with regard to the manner in which then mistake came to be made, no doubt, I would have felt bound to accede to the request or suggestion of the learned Counsel for the respondents and require the appellants pleader concerned to make a statement on oath, but it is impossible in this case to come to any conclusion, having regard to all the facts,, other than that the mistake must have been committed by a clerk and in the manner stated by the learned vakil. I have already referred to the absence of any motive or reason for the appellants not making the Official Assignee a party-respondent. How then did his name come to be omitted? The only manner in which it could have been done therefore must have been that the clerk by a. mistake took the records in the appeal before the District Court when it came up first before that Court and copied the names of the parties omitting necessarily the name of the Official Assignee that did not appear in the cause title.

6. The next question is whether such a mistake can be regarded as what has been termed to be a clerical error or clerical mistake. What is a clerical error or mistake? An error that is committed in the course of the performance of what may be regarded as clerical duties must necessarily be regarded as a clerical mistake or error. With regard to this, the learned Counsel for the respondents argued that the practitioner who files the appeal is bound to take due care with regard to the cause title also and see that the names of the parties are properly put in. I do not think it can 'be said that the petitioners are under no such obligation. But the question is not with regard to this whether the practitioner was or was not under an obligation but how the mistake came to be committed. If we accept the facts as we have done, then it follows that what the clerk was required to do was merely the clerical work of copying out the cause title. There can be no doubt that copying work may reasonably be regarded as clerical work and a mistake committed in the course of performing that clerical duty must be regarded as a clerical error. We have nothing to do with the nature of the clerical error, or mistake. Provided it is clerical error or mistake and provided that the proper officer of this Court is satisfied that the error or mistake is of clerical nature, then the rules authorize him to permit amendments to be made, not even by the practitioners concerned but by their gumasthas. There can be no doubt whatever that the Deputy Registrar of this Court, when the facts were brought to his notice, was satisfied that this mistake was a clerical mistake and that therefore, he was under the rules entitled to allow the correction to be made. I cannot consider that the view he took was so radically wrong that it calls for interference on our part.

7. In this view it really becomes unnecessary to refer to or discuss the other two questions which were also argued as part of this preliminary objection, but as the matter has been argued at some length, it may be useful also to state our opinion with regard to the same. Assuming that the insertion of the name of the Official Assignee in the roll of respondents was not a clerical mistake and the appeal must be regarded as having been instituted or presented so far as the Official Assignee is concerned only on 3rd December 1926, then the question is what follows? I shall refer later to the discussion with regard to the question of (the extension of time by the Court of appeal, but before I proceed to consider that question it will be useful to refer to another aspect. The appeal was presented as already adverted to in November 1925. Nobody seems to have noticed the fact that the Official Assignee was not a party respondent in this appeal. About September in the following year the Official Assignee, purporting to be or claiming to be a respondent in this very appeal, presented an application to this Court for the purpose of obtaining an order directing the appellants to furnish security. Apparently, on receipt of this petition the attention of the office was drawn to the circumstance that the Official Assignee Was not a party respondent at all. So the petition comes to be returned with an endorsement that it was incompetent because the petitioner was not a party-respondent. Then what happens? On or about the 3rd January 1927 the learned Counsel for the respondents who presented the petition for security for costs returns the petition which had been returned to him and represents it to the Court with the endorsement that it may now be received because the Official Assignee was 'now a respondent to the second appeal.' That endorsement and the presentation of a pleading on that basis and proceedings taken thereon are conclusive of the fact that so far as the Official Assignee was concerned, there was an acceptance by him of his position as respondent in the second appeal. It seems to me that apart from other circumstances, when a party claiming to be a proper party to a legal proceeding, takes steps for the purpose of securing some relief from the Court in that capacity, he really becomes estopped from afterwards setting up that he was not a party. No doubt if such steps had been taken without the full knowledge of all the circumstances and without notice of the manner in which the thing had come about, it may be that no estoppel may arise, but this is not such a case because the word 'now' in the endorsement is sufficient to indicate that it was brought home to the mind of the Official Assignee that there was a stage in the appeal previously when he was not regularly a respondent and that certain things had happened between the date of the original presentation of the petition and his representing the same which has the effect of making him a respondent in the appeal.

8. But even assuming that it is open to the Official Assignee to take the objection now that he was not properly made a respondent for the purpose of the appeal and it must be regarded that the appeal so far as he is concerned was presented only on 3rd December 1926, then the question arises for determination whether the circumstances are such that this Court would be justified and entitled in extending the time for the filing of the appeal. It seems to me really unnecessary to discuss this question at any very great length. The circumstances have already been referred to, having regard to which the appeal must be considered substantially as an appeal preferred by the appellants with regard to the Official Assignee also. In substance, therefore, it is proper and correct, but even if it is open to the respondent to insist on the contention that the appeal became barred by the law of limitation because merely of the form of the appeal, the question is whether having regard to the terms of Section 5, Lim. Act, this Court has the power to extend the time for the filing of the appeal, and whether having regard to the facts of this particular case the Court would be acting properly in regarding the delay in filing the appeal as excusable delay.

9. Under Section 5, Lim. Act, what the appellant has to do for the purpose of getting the time limited for the appeal extended is to satisfy the Court that he had sufficient cause for not preferring the appeal within such period. If the expression 'sufficient cause' should be taken literally, it may lead to the absurd result that as everything is brought about by some cause, the mere fact of his not having filed the appeal within the time may easily be regarded as sufficient cause. There can be no doubt whatever that that is not the true intention of the legislature, for, the expression 'sufficient cause' in the context must be regarded merely as indicating that the Court must be satisfied that the delay was, what I have already said, an excusable delay. In this connexion the learned Counsel for the respondents who took the preliminary objection, referred to two cases decided by English Courts. The first was.... In re Helsby Ex parte The Trustee [1894] 1 Q.B. 742, and the other case was In re Coles & Ravenshear [1907] 1 K.B. 1. With regard to both these cases, it may be observed that there is considerable difference between the wording of the English Statute bearing on this point and the language employed in Section 5, Lim. Act. According to the English rule the appeal has to be preferred within the time limited subject to the power of the Court of appeal in special circumstances to admit the appeal even beyond the period. The expression 'special circumstances'' cannot be regarded as identical in connotation or significance with the expression 'sufficient cause.' Even in England it may be observed that in the judgment of Collins, M.E. in the latter case it is stated that that learned Judge would have held that, in the particular case before him, the circumstances were covered by the expression 'special circumstances but, having regard to the previous decisions by which he felt bound, he could not do so. It is true that having regard to the decisions in these two cases, if we should hold that this case would be governed by those decisions, we could' not come to the conclusion that this was a proper case in which the Court would be entitled to regard the circumstances-as special. If, therefore, the English rule applied and the English decisions were binding for the purposes of this case, then we might have had great difficulty in holding that the Court had power, having regard to the facts of this case, to extend the time. But so far as this question is concerned, there are decisions of the Privy Council which put the question beyond all doubt. I may also advert to another case cited by the learned Counsel for the respondents Tin Tin Nyo v. Mating Ba Saing A.I.R. 1924 Rang. 148. In that case no doubt it was held that the mistake made by a pleader must a be a bona fide mistake, that is, a mistake made in spite of due care and attention before it can be regarded as sufficient cause within the meaning of Section 5, Lira. Act. It is really unnecessary to discuss the decision in that case further in view of the cases to which I shall immediately refer. In Brij Indar Singh v. Kanshi Ram A.I.R. 1917 P.C. 156,. the English cases were referred to in the course of the arguments before their Lordships of the Judicial Committee and in spite of it their Lordships came to the conclusion that even a mistake of law may be regarded as sufficient cause for the purpose of Section 5, Lim, Act. Similarly in the case of Nagindas Motilal v. Nilaji Moroba A.I.R. 1924 Bom. 399, it was held by the learned Judges that when an appeal was failed to be presented within the time limited by law for the time being in force and the mistake was due to the pleaders concerned being unaware of the change in the law, it would be sufficient; cause for excusing the delay within the meaning of Section 5. Again in the case of Sundara Bai v. Collector of Belgaum A.I.R. 1918 P.C. 135, their Lordships of the Judicial Committee observed as follows:

The fact that the defendants had acted on mistaken advice as to the law in appealing to the High Court in 1910 did not preclude them from showing that it was owing to their reliance on that advice that they had not presented the appeal to the Court of the District Judge within the prescribed period of limitation.

10. From a consideration of these decisions it follows that even if it were necessary for us in this case specially by an order to extend the time of limitation for the purpose of the appeal against the Official Assignee till the actual date on which his name was formally inserted in the cause title, I should be prepared to do so. That it is a proper case in which our discretion should be so exercised there can be no doubt at all, because, if in substance the appeal when originally presented was an appeal in which the Official Assignee was directly interested and there was no reason to suppose that there was any abandonment or exoneration by the appellants of the relief so far as the Official Assignee was concerned and if we also find that the Official Assignee has in the interval himself accepted the situation of being a party respondent, there can be no doubt that this would be a proper case in which discretion should be exercised in favour of the appellants. That disposes of the preliminary objection to the appeal.

11. Now passing on to the questions that arise for determination in the appeal itself, it is necessary to state the facts briefly. The plaintiffs appellants in this Court originally instituted the suit for redemption alleging that on a proper construction of two documents Exs. A and B in this case their true legal position with regard to the property, the subject matter of the suit, was that of mortgagors. Ex. A purports to be a deed of sale executed by the plaintiffs and one Pushpavalli Thayarammal in favour of Samarapuri Chettiar and for all purposes we may take it that the sale was really in favour of the respondent and may be referred to as such hereafter. Ex. B is in terms an agreement to re-sell the property to the plaintiffs in this case, two of the three vendors under Ex. A. The defendants' contention was that on a proper construction it should be held, by the Court not that the plaintiffs were mortgagors and that the defendants were mortgagees but that there was a sale and a mere agreement to re-sell the property. When the case came on first before the trial Court, the learned Subordinate Judge attempted a short cut and taking the view that the time limited for the plaintiffs' concluding the purchase was not of the essence of the contract, gave a decree in their favour on that basis. There was an appeal from that judgment to the District Court and the District Court concurred in that view, but on second appeal this Court took the view that if the transaction should be regarded merely as a sale and an agreement to re-sell the property, the stipulation as to time should be regarded as being of the essence of the contract and therefore remanded the case for the trial and disposal of the case on the other issues that arise, namely, having regard to the contention of the plaintiffs that their true legal position was that of mortgagors. After remand, the learned Subordinate Judge in a very carefully considered judgment came to the conclusion that the plaintiffs were truly in law in the position only of mortgagors and that therefore they had the right to redeem and gave a decree accordingly.

12. The defendants appealed from the judgment to the District Court. The learned District Judge on appeal held that;' having regard to the decision of this Court in Narasingerji Jyanagarji v. P. Parthasaradhi Rayanam Garu A.I.R. 1921 Mad. 498, the plaintiffs were not mortgagors but must be regarded merely as persons who had entered into an agreement for re-purchasing the property. From that, the plaintiffs filed a second appeal and Mr. Justice Phillips, as ho then was, reversed the decree and judgment of the learned District Judge, finding that the learned District Judge, in coming to the conclusion that he did, must have bean largely influenced by the view of this Court as stated in the case already referred to, which decision, however, had since been reversed by their Lordships of the Judicial Committee, and the learned Judge directed that the case should be reheard and disposed of in the light of the observations of the Judicial Committee in the case of Narasingerji Jyanagerji v. P. Parthasaradhi Rayanam Garu A.I.R. 1924 P.C. 226, the Pamur case. On remand, the District Judge in the lower appellate Court has taken the view that the plaintiffs were not mortgagors but were only parties that had agreed to repurchase the property on the terms and conditions set out in Ex. B and that, having failed to perform the contract according to the stipulations, they had no right to the property. In the result, he dismissed the suit. The first observation that falls to be made with regard to the judgment of the learned District Judge in the case is, that, though he was directed by Mr. Justice Phillips to dispose of the case having regard to the observations of the Judicial Committee in the Pamur case, there is no reference at all in the whole of the judgment to that case, nor does it appear that any careful examination was made by the learned Judge of that case. But we cannot say from the mere fact that he has not referred to the case that he has not attempted to discuss the present case having regard to the observations of their Lordships in that case. The case has been argued before us with regard to this very ably and rather fully by the learned. Advocate General for the appellants and Mr. K.S. Krishnaswamy Ayyangar for the respondents and having carefully considered their arguments and the reasoning of the learned Judge in the Court below, I have come to the conclusion that this appeal should be allowed.

13. It is unnecessary to re-state the whole of the law with regard to this point as it has been very carefully and lucidly stated by their Lordships of the Judicial Committee in that case. It is clear that when the question with reference to such documents as Exs. A and B is whether the transaction is a mortgage or whether it is merely a sale with an agreement to re-purchase, the case has to be decided on the instruments and the language employed in them having regard to the surrounding circumstances. No oral evidence is admissible to prove the real meaning or intention of the parties and not even the subsequent conduct of the parties can be looked at or regarded for the purpose. Now then, what are the surrounding circumstances in this case? A great deal of argument was advanced on behalf of the respondents in this case with regard to the exact state of things when Exs. A and B came to be executed. Before those documents, the plaintiffs had a transaction with Pushpavalli Thayarammal already referred to. That transaction would also appear to have been brought about by two documents more or less simultaneous just in this case. Mr. Krishnaswami Ayyangar for the respondents argued that what we should have regard to is not the relationship that was brought about by these two documents but the relationship as it was admitted or altered to be in and by Ex. 2 in this case.

14. I think that that contention is right because when what have to be looked at are the surrounding circumstances and when we find that Ex. 2 has taken the place of the previous documents, we must have regard only to the terms of Ex. 2. It was strongly contended on behalf of the respondents that on a proper construction of Ex. 2, the true position is that the parties had arranged for the sale of the suit property - it did not matter whether the sale was to be to the plaintiffs in this case or to some third party' and the learned Counsel for the respondents contended that if on the date of Ex. 2, both the parties had made up their minds to effect a sale of the suit property and we find that in Ex. A there was such a sale, it should not be open to the Court to come to the conclusion, having regard to that very important circumstance, that the suit transaction was really a mortgage. Though such an argument was ingenious, the true position having regard to Ex. 2, was this. As very properly observed by the learned Advocate General one has only to read Ex. 2, t6 come to the conclusion that it was, if not in terms at any rate in substance, exactly like a mortgage decree passed by a Court of law. The amount due is ascertained; interest at a particular rate is made payable, the date on or before which the amount due should be paid is fixed, and provision is made for the reconveyance of the property if payment should be made or for the sale of the property on default. A more comprehensive mortgage decree, it is difficult to imagine. I must, therefore, take it that the exact position of affairs when Exs. A and B came to be executed was that the plaintiffs were in the position of persons who had made default in the payment of the amount decreed under a mortgage decree and that the property was impending sale.

15. The second point to be noted with regard to the surrounding circumstances is that this very property had been, we must take it having regard to the terms of Ex. A, mortgaged to Pushpavalli Thayarammal some 12 years before the date of Ex. A for a sum of Rs. 5,000. If we should now accept the contention on behalf of the respondents, it would come to this that property which 12 years previously had been mortgaged for and accepted as sufficient security for the sum of Rs. 5,000 came to be sold outright for a sum of Rs. 4,500. I do not say that such thing is not possible. I am aware of transactions relating to property with regard to which there was a great reduction in the price but there is no evidence in this case with regard to the market for lands that there was any sudden or unforeseen fall. I must take it that naturally speaking the price of property especially in the locality must have gone on increasing. If therefore, 12 years before the date of Ex. A, it was regarded by all parties concerned that the property was sufficient security for Rs. 5,000 I must take the value to be at least Rs. 7,000 or 8,000. That is the sum which I find has been -accepted by the District Judge in the 'Court below as the value of the property on the date of Ex. A. There is clear and. reliable evidence in regard to that and there is no reason to reject that evidence, more especially when the lower appellate Court has accepted it. It follows then that, though the property was worth about Rs. 8,000 on the date of Ex. A, it comes according to the contention of the respondents to be sold outright for Rs. 4,500. When a question of this nature has to be decided by reference to surrounding circumstances, it may be that one single circumstance may be sufficient to induce the Court to hold one way with regard to the transaction, as for instance, we often find that one conclusive element of probability in any case is allowed to outweigh a mass of oral evidence. Now, what is the explanation, if any, that has been offered by the parties for our supposing that property worth Rs. 8,000 came to be parted with by the plaintiffs for a sum of Rs. 4,500. There is really no explanation which has been offered which can be accepted. This is, therefore, one of the chief features to be taken into consideration, according to the view of their Lordships of the Judicial Committee. It seems to me to be a very strong element in favour of the contentions on behalf of the appellants. No doubt, it may be said that the difference in the value in this case is not even in proportion anything like the difference referred to by their Lordships of the Judicial Committee in the Pamur Case, but I do not think it really matters. The question is whether taking the value of the property and the consideration for the transaction, anybody with any common sense can come to the conclusion that the transaction was or could have been really a sale and not a mortgage. So looked at, it seems to me that there can be only one conclusion possible. Taking the value of the property into consideration, the only conclusion that is consistent with the facts is that the transaction is a mortgage.

16. There is also one other aspect with regard this transaction to which reference may be made and that is, this case is not of the type of cases which we ordinarily come across, namely of A selling a property to B and B agreeing to reconvey the property on certain terms to A. In this we have the sale-deed Ex. A executed by three vendors, the plaintiffs and one Pushpavalli Thayarammal. The persons who are entitled to the benefit of the contract under Ex. B are only the plaintiffs and Pushpavalli Thayarammal, one of the vendors, is not a party to that agreement. That has got a great bearing on the question for solution, because that fact taken by itself is inconsistent with the contention put forward on behalf of the respondents. For if it was an agreement to re-sell, the resale must be to the persons who effected the sale. The party entitled to sell according to their contentions having been Pushpavalli Thayarammal, there is no reason which can be accepted why, if the transaction was a sale, Pushpavalli Thayarammal was not also a party to Ex. B; whereas on the basis of the contentions for the appellants the matter is fully explicable. The property really belonged to the plaintiffs. It was only under a mortgage to Pushpavalli Thayarammal. This transaction in effect transferred the mortgage to the defendants and that was why the plaintiffs alone were parties to Ex. B, as they alone were the mortgagors and Pushpavalli Thayarammal ceased to have any interest in it.

17. The third element we have to consider is the possession of the property. After this transaction, it is clear that actual physical possession of the property was only with the vendors. No doubt Ex. 12, the Muchilika, executed by the plaintiffs in favour of the defendants was some time later and not at or about the time of Exs. A and B. But, there is absolutely no evidence that between the dates of Exs. A and B and the date of Ex. 12, possession was parted with by the plaintiffs or that the purchasers even got into possession. What happens is that the plaintiffs execute a Muchilika and continue in possession of the property. That is often referred to in various eases as an important element to be taken into consideration in deciding such questions.

18. Another element with regard to this question is the amount of rent reserved as payable under this Muchilika, Ex 12. The lease under it purports to be for the whole of the fasli from 1st July of that year to 30th June of the following year. In spite of it, the sum reserved as rent is Rs. 270. There is also reference to the fact that the annual rent for the fasli agreed to between the parties was Rs. 350. Therefore, the sum of Rs. 270 was really arrived at apparently as the amount proportionate to the period. No doubt if the sum of Rs. 350 or the sum of Rs. 270 should work out exactly at a particular rate of interest on the sum of Rs. 4,500, then the question would be beyond all doubt; but neither figure agrees with any rate of interest which we can regard as having been agreed to between the par-ties. But even so, we have this important circumstance, namely, that though the lease purports to be for the whole of the fasli, the amount agreed to be paid was rent not for the whole fasli but only for the broken period. That seems clearly to have reference to the fact that the use of the money is had only for a broken period. That would be the only acceptable explanation with regard to this. There is no doubt some force in the contention that the figure Rs. 270 is not shown to be exactly proportionate either, but on the whole, taking the circumstances into consideration, I cannot help coming to the conclusion that this fixing of a fractional amount is more in consonance with the transaction having been a mortgage than an outright sale of the property.

19. One other small circumstance may also be referred to and that is the provision for the payment of kist under the muchilika by the plaintiffs. No doubt it is not a very important circumstance. Still, having regard to the fact that in this country, owners of property are anxious to make it appear that they have themselves been paying the Government kist in respect; of their property, some value must be attached to the stipulation in this document that the Government kist was to be paid only by the plaintiffs-No doubt, if the plaintiffs are still regarded as owners of the property, that would be quite natural, but some explanation might be regarded necessary if under the transaction the defendants became the absolute owners and yet allowed or required the kist to be paid by the plaintiffs, instead of requiring the plaintiffs to pay an additional amount into their own hands and themselves paying, the same.

20. Another very important circumstance in this case is the manner in which this transaction according to the evidence comes to be concluded. The plaintiffs and their friend or adviser approaches' the late Rathnavelu Chetti, and Rathnavelu Chetti is asked to advance a sum of Rs. 4,500. In his own evidence, he states: he agreed to advance that amount, and there is no evidence of any bargaining for the price of the property. There is no reliable evidence with regard to the inspection of the property or the examination of the title deeds and the transaction, we find, is concluded. Now, are these facts by themselves consistent with the transaction having heer a purchase by Rathnavelu Chetti? It seems to me impossible to come to that conclusion. It is very significant that the transaction was described by Rathnavelu Chetti himself as one in which he was asked to advance an amount, and I noticed more than once the learned Counsel for the respondents himself using that language. The expression ' advance the amount ' while being very characteristic of money lent and intended to be repaid and secured by an instrument, is absolutely inconsistent with the purchase of property or the payment of price. There is no evidence that there was any motive for Rathnavelu Chetti seeking to acquire property in this locality. Why should there have been no bargaining at all unless it was that the transaction did not allow of any bargaining, because it was a transaction in which an amount was required to be advanced by way of loan '? Looking at all the circumstances of this transaction, it seems to me difficult to resist the conclusion that it was one merely of a loan and security and not of purchase of property by the late Rathnavelu Chetti. I have referred to Rathnavelu Chetti because it is admitted that it was Rathnavelu Chetti that paid the purchase money and brought about the transaction. Though the document stands in the name of Samarapuri Chetti, no question really arises, because Samarapuri Chetti did not go into the witness box and it has not been contended that he had anything to do with the transaction itself beyond perhaps lending his name. Though one or two other matters with regard to the surrounding circumstances were dealt with in the course of the argument, it seems to me sufficient to refer to these important matters so far as surrounding circumstances go.

21. Now to pass on to the language of Exhibits A and B. The first point that was discussed with regard to it related to the respective dates of these documents. The sale-deed was on 19th October 1908 and the agreement to resell Exhibit B, bears date 21st October 1908. The evidence, however, which seems to have been accepted is that both the documents were executed on the same date and registered on the same date simultaneously. There is no explanation or evidence on which it is possible to say that Exhibit B came to be executed two days after Ex. A was executed. The circumstances seem clearly to point to the fact that Ex. B came to be written on 19th October and that subsequently when the documents were about to be executed the date 21st October was inserted in it. The question is whether both these documents were really part of the same transaction That they, were parts of the same transaction, there can be no doubt whatever. No circumstances were adverted to and no reason was shown or even alleged why and how these two-deeds which were apparently got prepared at the same time, executed at the same time and registered at the same time should not be regarded as constituting but one transaction. In Ex. B, there is one expression which seems tome to' be really conclusive of the case and that is the expression in Tamil selluthividumpatchathil. The connotation of that word is much more in consequence with its being a discharge by a re-payment than the payment of purchase money. It passes my understanding that with reference to any persons who is required or expected to pay purchase money such a Tamil phrase would be used. The expression selluthividumpatchathil must be understood as it always has been, that there is an obligation to discharge or pay and it is an expression generally used only with reference to the discharge of a debt or similar liability. It is not the mere expressions selluthumpatchathil that is used, but the particle vidu makes the meaning much clearer, and having regard to that phrase, it is impossible to contend that what the parties contemplated by Ex. B was not the repayment of a loan secured by mortgage but was merely the payment of purchase money which the purchaser had an option not to pay. Again, it is provided at the conclusion of that document, Ex. B as follows:

After the expiration of the said period, you. will claim no right or privilege whatever to this agreement or to the properties detailed below; and I shall be in undisputed possession of the said properties.

A more conclusive indication, it is difficult to conceive of, of what the parties really contemplated. If it was a mere-agreement to re-sell, obviously the would-be-purchasers have no interest whatsoever in or over the properties. The provision here includes a necessary implication that till the date of default according to the true meaning and understanding of the parties, the would-be purchasers have an interest in the property itself. If the transaction was a mortgage, clearly they have an interest; it was a sale, they will not have any interest. Having regard to this very specific clause and condition in the document, the only conclusion that is reasonable in the circumstances is that what the parties really contemplated was only a mortgage, and not a sale and an agreement to re-purchase. It is also significant that it is provided in that clause that it is only after the default made by the would-be-purchasers that the defendants are provided to become the absolute owners entitled absolutely to the enjoyment of the property. It seems to me really unnecessary to labour the point further. On a proper construction of both these documents and the words, phrases and clauses in them, the only conclusion that is in consonance with what may be regarded as the real intention of the parties is that the transaction was only a mortgage and that the sale was merely by way of security for the amount that was advanced.

22. In this view, it follows that the finding of the lower appellate Court was wrong and that the appeal should be allowed with costs throughout, the judgment and decree of the lower appellate Court being reversed and the decree passed in the Court of first instance by the learned Subordinate Judge in favour of the plaintiffs restored. There would be the ordinary decree for redemption of the property. The plaintiffs, for the purpose of redemption, undoubtedly have to pay the sum of Rs. 4,500, the principal amount. This appears to have been paid into Court along with other amounts making up in all Rs. 4,850. As the plaintiffs have continued to be in occupation and enjoyment of the property as tenants of the defendants, they would also be bound to pay rent in respect of the property till the date on which the principal amount was paid by them. Parties are not agreed about the amounts of payment and the exact calculation. In order (to avoid a reference to the lower Court for the purpose of checking the accounts, parties want time to see if they can arrive at an amount between themselves. The defendants would be entitled not only to Rs. 4,5000 but also all unpaid rent or interest up to the date on which the sum of Rs. 4850, was paid by the defendants in respect of the property will also have to be included in the accounts. The parties will, if possible, arrive at the figure on such basis. Final orders will be passed with regard to this on the adjourned date. Adjourned one week.

Reilly, J.

23. I agree that the preliminary objection in this case must be over-ruled. In the course of the long history of this unfortunate suit defendant 2 was adjudged an insolvent. That happened between the second remand by this Court and the second hearing in the lower appellate Court, that is the District Court. Before the second hearing in the District Court the Official Assignee was brought on record as supplemental appellant and he prosecuted the appeal in that Court and succeeded in getting the plaintiffs' suit dismissed. Then the plaintiffs came here on second appeal, in which they could only succeed if they prosecuted their appeal against defendant 2's estate represented by the Official Assignee. In the appeal memorandum it happened that defendant 2's name was entered as respondent but nothing was said about the Official Assignee. That, it is now admitted, was due to the mistake of a clerk in the office of the plaintiffs' vakil Mr. S. Venkatarama Ayyar, in writing out the cause-title, which mistake was unfourtunately not noticed by Mr. Venkatarama Ayyar when he signed the appeal memorandum. I did not understand Mr. Krishnaswamy Ayyangar, who appears for the Official Assignee to dispute the accuracy of Mr. Venkatarama Ayyar's statement to us on that subject during the hearing of the appeal; but he suggested that Mr. Venkatarama Ayyar's statement ought to have been supported by an affidavit. I quite agree with what has been said by my learned brother on that point, that we ought to accept Mr. Venkatarama Ayyar's statement on the subject. Speaking for myself, I have never asked any Advocate or vakil appearing before me to substantiate a statement made by him about his conduct in his own case by an affidavit, and apart from any proceedings for professional misconduct, I hope I shall never do so. When the mistake was noticed which was long after the appeal time had expired, the Official Assignee's name was entered in the memorandum of appeal in the presence of the Deputy Registrar as if the omission had been merely a clerical error within the meaning of Rule 20 of the Appellate Side Rules. The question is whether we can treat it as a clerical error. No suggestion has been made before us that the plaintiffs or their vakil were under any mistaken notion as to the person against whom they ought to have prosecuted the appeal. All that happened was that there was an omission of the Official Assignee's name. Mr. Krishnaswamy Ayyangar, contends that that omission was negligence in bringing on record an essential party and he has urged before us that mere negligence is no excuse for delay in bringing a party on record and that, when a party has got a decree which has become ordinarily unassailable by appeal through lapse of time, it is not right that he should be dragged before the Court on appeal, unless there is a really sufficient reason for the appellant having failed to bring him on record in time. With these two general propositions I should not quarrel; but it appears to me that they are not applicable to this case.

24. The fallacy of Mr. Krishnaswamy Ayyangar's arguments on this point appear to me to be that he does not take into account the fact that in this matter the Official Assignee is not really a separate and distinct party from defendant 2 The Official Assignee only comes into this litigation to represent defendant 2'? estate, and he stands in defendant's shoes. When defendant 2'3 name was entered in the appeal memorandum, that was an indication that the plaintiffs wished to prosecute their appeal against defendant 2s' estate; and the failure of the clerk and the vakil to go on and complete the description of the party by words showing that defendant 2's estate is now represented by the official assignee appears to me to be a clerical error within the meaning of Rule 20 of Appellate Side Rules. There is only one thing which I think be added to that. If under the impression that the decree which he had obtained in the District Court had become unassailable by appeal the Official Assignee had sold the property concerned for the benefit of defendant 2's estate or had taken steps to sell it or had in any other way spent. money upon it under that impression, then, complications might have arisen and it might have been necessary that the plaintiffs should compensate him in costs or otherwise. But here we have been informed that all that the Official Assignee did in connexion with this 'property between the date of the District Court's decree and the date on which his name was added before the Deputy Registrar was to spend Rs. 20 on an execution application in the District. Court, which he might have done whether there was an appeal pending or not On the other hand it appears that the Official Assignee was really aware that the plaintiffs were prosecuting this appeal before his name was added in the memorandum of appeal as, before that was done, he put in an application for security for costs.

25. On the merits Mr. Krishaswami Ayyangar was at pains to insist that Ex. A is by its language a sale-deed. Though he tried to make much of that, it does not carry us any distance towards the solution of the problem before us. Ex hypothesi in a case like this the deeds must ostensibly be a sale-deed. But we. do not have to go outside the documents in this case to find indications that the transaction was something less than a sale. Besides the Tamil expression to which my learned brother has drawn, attention in Ex. B there is a statement-in Ex. B that after the expiration of the period the plaintiffs will have no claim or interest in the property, implying, that until that time they will have an interest. Then Ex. A refers to Ex. 11, which provides that Thayarammal shall sell the property and pay over any balance beyond Rs. 4,100 then settled as due to her, to the plaintiffs. If the plaintiffs were only anxious that the property should be sold, there was no necessity after that provision for them to join in a sale-deed such as Ex. A. Again Ex. A when examined implies-that the previous transaction between the plaintiffs and Thayrammal represented by Ex. 1 and 1 (a) was a mortgage and that is still more clearly implied by Ex. 11. But yet Ex. A itself shows that the plaintiffs purported to sell for Rs. 4,500 property which they had mortgaged 12 years before for Rs. 5,000. There are other indications to be obtained from the documents. Ex. A shows that there was some pressure on the plaintiffs at the time of the sale. Though Exs. A and B are divided in date by two days, 'there is undisputed evidence that they were executed on the same day and the endorsements show that they were registered on the same day. The stamp paper for Ex. A was bought by the plaintiffs, as it would naturally have been, if the transaction had been a mortgage under Ex. A 45 1/2 acres of wet land and 11 acres of dry land were sold for Rs. 4,500, an obviously low price, even if we omit from consideration the fact that they had been mortgaged 12 years before for Rs. 5,000. There is no evidence that there was any bargaining about the price. The defendant 1, who conducted the negotiations, says that what the plaintiffs asked for was an advance of a particular amount; and according to his own evidence he does not profess to have made any investigation into the character or value of the land. Possession remained with the plaintiffs; and I think it is clear that the rent which they had to pay for the broken period of the first fasli after the date of Ex. A although the date was such that they would take the whole wet crops of that fasli, was calculated rather as interest than as ordinary agricultural rent.

26. On the other hand Mr. Krishna--swami Ayyangar drew attention to the fact that Exs. A and B do bear different dates, which fact he pressed as significant to show that they were not intended to be parts of the same transaction. He also drew attention to the facts that Ex. B is not described as a counter part, an expression which might have been expected if this was a mortgage by conditional sale and that there are several differences in points of detail between the terms of Exs. A and B on the one hand and of Exs. 1 and l(a) on the other, which it 'is now admitted represent a mortgage. But in my opinion these points, which have been urged by Mr. Krishnaswami Ayyangar, are by no means sufficient to counterbalance the weight of the clear indications which I have mentioned in both the documents and the surrounding circumstances that this transaction was a mortgage by conditional sale and not a sale and an agreement to reconvey. I agree that the appeal must be allowed with costs thoughout and that a decree for redemption should be made on the terms indicated by my learned brother.

27. [This second appeal again coming on for hearing this day as to the exact amount payable by the appellants this day for redemption of the suit properties the Court delivered the following judgment ]

Srinivasa Ayyangar, J.

28. With regard to the balance of the amount payable by the appellants for the purpose of redemption a question was raised only with reference to one point and that was whether the defendants who had obtained a decree for the rent of one fasli personally against the plaintiffs and realized the amount by attachment of a portion of moneys deposited into Court in this very suit by the plaintiffs are entitled to treat it as arrears of rent and charge interest thereon till payment, or whether they should be satisfied with the interest as provided in the decree. There can be no doubt that they elected to take it under the decree because it is clear that even at the time when the Subordinate Judge was passing a decree for redemption they did not ask that the amount of the decree should be included in the amount payable by the plaintiffs.

29. In these circumstances they are not entitled to any charge in respect of the amount covered by the decree. On this basis both parties are now agreed that the balance payable by the plaintiffs to the defendants for the purpose of redemption would be Rs. 762-11-0 with interest thereon. It is now agreed between the parties that the total amount payable by the plaintiffs for the purpose of redemption as on this date will be Rs. 5044-1-0 together with interest on the sum of Rs. 762-11-0 at 9 per cent per annum from 11th September 1916 till 26th March 1920. If the amount deposited by the plaintiffs up to the date in Court to the credit of the suit should happen to be sufficient to pay to the defendants the said amounts the whole of the said amount subject, however, to the provision for the payment of costs to be hereinafter referred to will be liable to be paid out to the defendants. If, however, the amount already deposited should be found insufficient to pay the said amounts, the plaintiffs will be liable to deposit such balance as may be necessary to make up the amount within one month of the date of the ascertainment of the same.

30. As regards costs the plaintiffs having already been adjudged to be entitled to all costs up to date the same will be taxed and the whole of such amount will be deducted from the amount as found due and payable by the plaintiffs and it is only after such deduction is made that the balance will be paid over to the defendants.

31. As regards the form of the decree the learned Advocate General intimates that already under the decree passed by the Subordinate Judge in the first instance by way of specific performance a conveyance has already been executed and registered in favour of the plaintiffs. There will be an ordinary decree for redemption, on the payment to the defendants of the whole amount due as aforesaid, the Official Assignee, the respondent before us, will execute and register at the cost of the plaintiffs such conveyance of the property as may be necessary. All the title-deeds of the property, if any, in the hands of the other respondents will be liable to be delivered over to the plaintiff on such payment being made.

Reilly, J.

32. I agree.


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