John Woodroffe, J.
1. This is a suit between Certain parties whom I may call the Boses as plaintiffs on one hand and the Guhas as defendants on the other. The suit was brought by the former against the latter for declaration of title of their predecessor to the properties mentioned in the schedule to the plaint and for possession of the same. The plaintiff No. 2 claims under plaintiff No. 1 who has made a gift to him of 1/3rd of the properties claimed. The family of the Boses is given in the following table in which the parties who are dead and with whom we are not concerned are omitted.
Gopi Chandra Bose.
Nanda Bose Chandra Kumar Bose married
(Plaintiff No. 1). to Manikyamala Bose.
Durga Charan Ghose
Satish Bose. Akshoy. Chowdhury
(Plaintiff No. 2).
2. The family of the Guhas is shown in the following table:
Ambica Guha married to Lakhi Priya Sister.
(Defendant No. 1)
| | | |
Raioharan. Bimala. Kali. Nalini.
(Defendant No. 2).
3. Nanda Bose, the original plaintiff, died during the pendency of the appeal and his son Satish has been substituted as his heir. Chandra Kanta died on the 24th August 1881 and Manikyamala on the 19th January 1907. Akshoy was adopted as his son by Chandra Kanta. The adopted son died on the 25th January, 1898 and after his death Manikyamala adopted Chintaharan, the 'plaintiff No. 2. His adoption was subsequently set aside and it is admitted that the plaintiff No. 1, Nanda Lal Bose, was and now his son Satish is the next reversioner to the estate of Akshoy Bose deceased. In the table of the Guhas, Lakshami Priya Guha and Rai Charan Guha, defendants Nos. 1 and 2, are the executrix and executor respectively of the estate of Ambica Guha. The subject matter of the suit, viz., the properties mentioned in the schedule and numbered 1, 2, 3 and 4 was formerly in the ownership of certain persons named the Rebellos who mortgaged the same to Ambica Guha and Manikyamala Bose. Of the properties mentioned in the schedule representing 2 annas belonging to the Rebellos, the plaintiff is in possession of one anna and the defendants have the other anna. The plaintiffs claim from the defendants out of the one anna held by them some 13 gandas odd leaving a sum of 6 gandas odd only with the defendants.
4. The question in dispute is whether in the circumstances to be stated, the plaintiffs and the defendants are entitled to one anna each, of the properties mentioned or whether the plaintiffs are entitled to the greater share which they claim. The circumstances which give rise to this question are as follows: One Petter Rebello had two annas share of the property described in the schedule to the plaint. On his death his widow Maria Rebello got one anna and his daughters Julia Gamelia and Cecelia got anna each. These three persons borrowed from the Boses and the Guhas by a series of mortgage transactions the details of which are as follows: (a) On the 22nd January 1884 a mortgage was executed by Maria Rebello and Julia Camelia in favour of Akshoy Bose for Rs. 1,000 on the security of anna share of the property mentioned. This was Suit No. 37 of 1896, the decree in which was passed on the 29th May, 1896 and the sale under it took place on the 21st September, 1904; (b) on the 14th September, 1885 a mortgage was executed by the same persons in favour of Manikyamala Bose executrix of the estate of Chandra Kumar Bose and in favour of Ambika Guha for a sum of Rs. 1,050 of which 2/3rd was advanced by Ambica Guha and 1/3rd by Manikyamala Bose. The security was the second mortgage on the 1 anna share above mentioned and first mortgage on further half anna of the property. This was the subject matter of Suit No. 19 of 1897, the decree in which was passed on the 8th June 1899 and the sale in respect of which took place on the same date as in the other suit, namely, the 21st September 1904. In both these cases the properties were purchased by the mortgagees, (c) Then there was third mortgage executed on the 8th August, 1887 by Julia Camelia and Cecelia in favour of Manikyamala for a sum of Rs. 1,128 on the security of the remaining half anha of the property. This was the subject-matter of Suit No. 21 of 1897, the decree in which was passed on the 19th May, 1897. The sale under the decree was on the same date as the other two mortgages, namely, the 21st September, 1904 and the property was purchased by the mortgagee. The execution cases were numbered 92 in the case of the 2nd mortgage, 93 in the case of the third mortgage, and 94 in the case of the 1st mortgage.
5. The question in issue is as to the result of the various sales which took place on the same day, namely, the 21st September, 1904. According to the plaintiffs Manikyamala acquired one anna under the first mortgage, 1/6th of an anna that is -frd of half anna (2/3rd of the money being advanced by Ambika Guha and 1/3rd by Manikyamala) in the second mortgage and anna under the 3rd mortgage. According to the defendants the parties, Ambika and Manikyamala took each one anna under, it is alleged, the following circumstances. The first contention is that, the sale under the second mortgage took place first. It is then contended that Manikyamala thus acquired an interest in the equity of redemption under the sale in execution of the 2nd mortgage. Therefore, she could not enforce the first mortgage decree without reforming the decree under the 1st mortgage by a deduction of the amount which she was liable to contribute in proportion to the equity of redemption acquired by her. I am of opinion, however, that this case which is a new one cannot be raised in appeal. It is alleged that the sale under the 2nd mortgage took place first, because the execution proceedings under that mortgage was numbered 92 whereas those under the third and first mortgage were numbered 93 and 94 respectively. This, however, does not necessarily follow. There was no issue as to which sale actually took place first. Moreover the case made in the pleadings and in the lower Court is inconsistent with this contention, namely, the case that Manikyamala purchased the whole one anna under the first mortgage and then subsequently some months later gave up to the defendants 2/3rds of the properties purchased under that mortgage.
6. The next ground is that which was made in the lower Court and is stated in the 5th issue, namely. 'Is the alleged agreement and transfer by Manikyamala Bose of the 2/3rds share of the auction purchased properties in Execution Case No. 94 of 1904, in favour of the defendants true and legally valid and binding against the plaintiffs?' The first question is whether this agreement has been proved as a question of fact It is alleged that as a fact a bona fide, arrangement was made that the properties purchased by Manikyamala under the first decree would be enjoyed in equal shares and that the money payable by the defendants as their share of the money due on the, 1st mortgage was paid to Manikyamala and the rights of the parties were adjusted in accordance with a long standing practice under which the Boses as represented by Manikyamala and Guhas as represented by the defendants had been acquiring properties for several years past. It is alleged that the agreement made by Manikyamala was in the course of due management of the estate. The learned Judge on this part of the case says that the defendants asked, for and obtained five adjournments to file their written statement and got 2 months time to prepare and file their joint written statement. But in such a written statement so prepared after such a length of time they do not give the month in which the alleged agreement or adjustment was made or the transfer was effected nor give specific details as to how or when the purchase money for the 2/3rds share transferred to the defendants out of the one anna share of the properties purchased by Manikyamala at the auction-sale in Execution Case No. 94 of 1904 was paid by the defendants to Manikyamala. The 15th paragraph of the written statement alleges this to have taken place towards the end of the year 1311 B.S., and as regards the payment of the defendants of the purchase money for the 2/3rds share to Manikyamala the written statement alleges that the purchase money was paid off by adjustment of various accounts including, costs of litigation and payment of rents of purchased properties between the parties. He characterises this statement on a vital point of the defendant's case as vague and points out that if the alleged adjustment or agreement and transfer took place on the 10th Falgoon 1311 B. ., and if the transfer of 2/3rds share of Manikyamala's properties was made on that, date for Rs. 3,607-8 as sought to be made out by Ex. A (3), in that case it is not understandable why facts of such importance and on which the defendant's title rests were not specifically stated in their lengthy written statement. He further holds that there are no independent or trustworthy witnesses who could he safely relied on to prove the alleged agreement or adjustment and that oral evidence of the alleged transfer is inadmissible. Indeed it is not contested that if this was a case of transfer, a registered instrument was necessary though as stated later the appellants relied upon the doctrine of part performance. The learned Judge has held that the alleged adjustment or agreement for transfer has not been proved.
7. The documents said to be the evidence of adjustment and accounts in this transaction and Spoken to by Rajendra Nath Guha and Bar Charan Guha bear signatures which purport to be those of Manikyamala and Durga Charan Ghose Choudhury. There is, however, evidence on the other side denying both the signtaures of these alleged signatories as also the fact of adjustment. Reliance is placed on a mutation petition signed by Manikyamala. This, though it to some extent supports the defendants, is also against them on other points. Thus it makes no reference to the adjustment on which the defendant's case rests. No reference is made to the execution proceedings under the first mortgage-decree. We find further that no registered instrument of transfer was taken by Rai Charan Guha who as a Pleader, one might expect, would be more cautious if the facts were as alleged. I may also add that there is no evidence to show that this pardanashin lady knew what she was doing. I see no ground for reversing the decision of the learned Judge on this issue of fact. The contention of the appellant that the plaintiffs did not acquire any title on this ground fails. Even if there was such an agreement as alleged I am of opinion that it would not have been binding on the reversioners. There is no evidence of legal necessity for the alleged alienation of the properties belonging to the estate. It is said that the arrangement took place as a part of the management of the estate by Manikyamala in her representative capacity. But I am of opinion that if anything was done it was by her presumably as holder of a Hindu, mother's limited estate.
8. It is to be observed that on the case made in the plaint a registered instrument of transfer was necessary, In answer to this the doctrine of part performance is setup. This doctrine is only applicable where specific performance could have been obtained. Apart from the fact that a suit for specific performance is now barred and the question whether the plaintiffs claim through Manikyamala which point need not be decided the answer to this head of argument is that the agreement to which the doctrine of part performance is sought to be applied has not been proved. The case of the appellant fails, therefore, on all the grounds.
9. But then it is said that there are two preliminary objections to the suit. In the first place it is contended that the suit is bad because there is no sale certificate. This objection raises a matter of fact and was not previously taken in the lower Court or in the grounds of appeal. The plaint mentions a certificate as regards property No. 2 but no mention is made in respect of properties Nos. 1, 3 and 4. Whether there was or was not a certificate in respect of these properties, is a question of fact which fact should have been made subject of an issue if it were desired to raise it. Apart from this I hold, as a matter of law that an order confirming a sale is sufficient and further in the present case no certificate is necessary because the title is admitted and he question of certificate, which is merely evidence of title, arises. The issue admits that Manikyamala purchaced the property in execution sale under the 1st mortgage and the defendants case is (as made in the written, statement) that she transferred 2/3rds to the defendants an allegation which admits the plaintiffs title.
10. It is next said that the plaintiffs cannot maintain a suit for possession having regard to the provisions of Section 244 of the C.P.C, then in force which provisions, it is submitted, bar the present suit. This, it is alleged, was a matter which ought to have been determined in the Court executing the decree as the question is between the parties to the suit. It may be disputed whether an order for delivery of possession, to a purchaser is an order relating to the execution, discharge or satisfaction of a decree. For so far as the decree-holder is concerned his decree is satisfied. Whether property or not is a matter with which he is not concerned. But assuming without deciding it in the affirmative, the point remains whether the question which arises in an application for delivery of possession does so arise between the parties to the mortgage suit or their representatives. In the case of Shasi Bbushan Mookerjee v. Radhanath Bose 25 Ind. Cas. 19 C.W.N. 835 : 20 C.L.J. 433 it was held that the capacities of the decree-holder and auction-purchaser are radically distinct. It is admitted that if the auction-purchaser is not at the same time the decree-holder Section 244 (which was the section then in force) does not apply to bar the suit. But it is argued that it is otherwise where the, auction-purchaser happens to be also the decree-holder. But it was held, I think rightly, in the same case that there is no distinction in principle between one case and the other. I am of opinion therefore, that Section 244 is no bar to the suit. In the circumstances it is not necessary to consider further the question whether the plaintiffs are or are not the legal representatives of Manikyamala within the meaning of Section 244, C.P.C.
11.The appellants have, in my opinion, not made out any ground for disturbing the decision of the lower Court. The appeal is accordingly dismissed with costs.
12. In the suit out of which this appeal has arisen the plaintiff sued for a declaration of his title and recovery of possession of a 13 gandas, 1 kora, 1 kranti share of a certain property.
His case is as follows.
13. One Chandra Kumar Bose who was his brother died in 1882 leaving behind him a widow by name Manikyamala and an adopted son Akshoy Kumar Bose. Akshoy, therefore, inherited the estate of Chandra Kumar. Akshoy died childless in 1893 leaving behind him a widow Bidhu Mukhi. Akshoy left a Will of which Manikyamala as executrix took out Probate. Bidhu Mukhi, the widow of Akshoy, died and then Manikyamala adopted plaintiff No. 2 as her son. The adoption however was finally set aside in a suit brought by the plaintiff No. 1. On the death of Bidhu Mukhi, the widow of Akshoy, Manikyamala inherited his property. Manikyamala died in 1906 and in 1907 the plaintiff No. 1 succeeded her as the heir of Akshoy. Plaintiff No. 1 conveyed to plaintiff No. 2 a third share of the estate he had inherited from Akshoy.
14. After some time the plaintiff discovered that Manikyamala owned more property than that the plaintiff had got possession of on her death.
15. Akshoy had lent money on mortgage to certain persons known as the Rebellos.
16. In the first mortgage Akshoy was the sole mortgagee and the Rebellos mortgaged 1 anria of the 2 annas property they had.
17. In the second mortgage Akshoy and Ambica lent the money in the proportion of 1/3rd and 2/3rds. In this mortgage the mortgagors hypothecated the 1 anna share already mortgaged to Akshoy and a further anna. In the last mortgage Akshoy alone lent the money and the Rebellos hypothecated the remaining half anna which they had in the property. The money lent on the 1st mortgage was Rs. 1,000 and in the second mortgage Rs. 1050.
18. Mortgage suits were brought on, the various mortgages in 1896 and 1897 and decrees obtained. In 1904 the mortgage decrees were all simultaneously put into ration in Execution Cases Nos. 94, 92, 93 Manikyamala purchased the mortgage property in execution of decree 94. Manikya and Ambika purchased the property in Execution Case No. 92 and Manikya alone in Execution Case No. 93. The defendants who are mother and son being the widow and son of Ambika Charan Guha ignored the purchase of Manikya under the 1st mortgage, and gave out that Manikya's share was 10 gandas only in these properties. The plaintiffs are really entitled to a 1 anna, 3 gandas 1 kara 1 kranti share in these properties which were mortgaged under the 1st and 2nd mortgages and are being kept out of 13 gandas odd. With regard to the land covered by the 3rd mortgage there is no dispute. Hence this suit.
19. The defendants case in their written statement was that there was a custom by which the Boses and the Guhas always got a. half share in any property purchased by one of them.
20. In the sale in execution of the 1st mortgage Manikya purchased the 1 anna share and in execution of the 2nd mortgage Manikya and the defendants purchased in the proportion of 1/3rd to 2/63rds and Manikya purchased the whole 10 gandas of the property hypothecated in the third mortgage. Manikya then agreed to give up to the defendants a 2/3rds share of the properties purchased in execution of the 1st mortgage, in consideration of the sum of money which it was found on taking accounts, she owed to Ambika.
21. They further contended that the suit was bad because the plaintiffs proper remedy was to proceed under Section 47 of the C.P.C. and so Section 47 was a bar to the suit.
22. The learned Subordinate Judge decided all the issues in favour of the plaintiffs and decreed the plaintiffs suit. He found that the agreement relied on by the defendants was not proved and that Section 47 was, not a bar. That if there was any agreement the transfer under it required aregistered deed. The defendants who are mother and son and executors of the estate of Babu Ambika Charan Guha have appealed.
23. Their case in appeal would seem to be this:
(1) The agreement did take place as alleged by them.
(2) That even if a deed was required they relied on the doctrine of part performance by which they had acquired an equitable title.
(3) That Manikya acquired no title by her purchase of the property in execution of the 1st mortgage.
What happened was, that execution sale of the 2nd mortgage decree took place first. By her purchase in the said Manikya only acquired a 1/3rd share in the equity of redemption and the defendants a 2/3rds share. The defendants redeemed their two thirds share and so Manikya was only entitled to one-third share and defendants to 2/3rds share.
(4) Manikya did not take out any sale certificate and so had acquired no title to these properties.
(5) The plaintiffs are the representatives of Manikya and so they were bound to proceed under Section 47, C.P.C., as this was a question relating to the execution or satisfication of the decree and must be determined by the Court executing the decree.
24. To consider No. 3 first: The simple answer to this contention is that it was not the case of the appellant in the written statement and has been made for the first time in appeal. The case in the written statement, as I have already set out, was that Manikya bought the property and gave up 2/3rds to the defendants the consideration being the money she owed the defendant. The contention of the defendants depends on facts which have not been ascertained because the point was never raised before. The appellant's whole argument depends on the order in which the sale under the mortgage decree took place. It is not open to us to assume in the absence of any evidence that the 2nd mortgage-decree was put into execution first. There is not a suggestion of this case in the written statement and it is in direct contradiction to the case here made out. The appellants cannot be allowed to make out in appeal for the first time an entirely new case which is inconsistent with the case in their written statement. Taking the fourth contention next. The appellants argue that Manikya never took out any sale certificate after her purchase of the property in execution of the mortgage decree and hence has not acquired any title to the property. This point also was not apparently taken in the lower Court. It finds no place either in the written statement or in the issues.
25. In their plaint the plaintiffs state that they found, that with regard to some of the property no sale certificate had been taken out, and they duly took out sale certificate.
26. The appellant now argues that with regard to the rest of the property no sale certificate was ever taken out. No suggestion on this point was made in the Written statement and no issue was framed on it. It is directly in conflict with the case, made in the written statement where the defendants derive their title from a purchase from Manikya. If Manikya had no title she could convey nothing to the defendants. The contention must be decided against the appellants.
27. The next point argued is that the plaintiffs-are the representatives of Manikya for the purposes of Section 47 of the C.P.C., that the present question is one relating to the execution or satisfaction of the decree and that the proper remedy for the plaintiff is to apply to the Executing Court for delivery of possession. The respondents contend on the other hand that they are not the representatives of Manikya for the purpose of Section 47 and in support of their contention rely on the case of Kameshwar Pershad V. Rim Bahadur Singh 12 C. 458 : 6 Ind. Dec. (N.S.) 311. The present case is: governed, by the old code (Act XIV of 1882) and the authority cited no doubt supports the appellant. The case, however, has been dissented from in a later case, Surendra Narain Singhv, Gopi Sundari Dasi 32 C. 1031 : 9 C.W.N. 824 ,which follows the later Full Bench case, Ishan Chander Sarkar v, Beni Madhub Sarkar 24 C. 62 : 1 C.W.N. 36 : 12 Ind. Dec. (N.S.) 707. Following this authority I must hold that the plaintiff would be the representative of Manikya for the purposes of Section 47.
28. It is however quite clear that the present question is not one relating to the execution or satisfaction of the decree. The delivery of possession is not a part of the satisfaction of the decree. So far as the decree-holder is concerned the decree is, satisfied, when the property is sold and the money paid to decree-holder. Obviously he is not concerned with the property being delivered to the purchaser. The question of the delivery of possession to the auction-purchaser is not one relating to the execution of the decree as between the parties to the suit or their representatives. Sashi Bhusan Mukerjee v. Radhanath Bose 25 Ind. Cas. 267 : 19 C.W.N. 835 : 20 C.L.J. 433. It is immaterial that the auction-purchaser is also the decree-holder. As an auction-purchaser he is in an entirely different capacity.
29. The present question is one regarding delivery of possession and clearly, therefore, does not come within Section 47, C.P.C.
30. Section 47 is, therefore, no bar to the present suit. This point is decided against appellants.
31. I now deal with the first contention regarding the alleged agreement between Manikya and Ambika that Manikya should sell the 2/3rds share in what she had purchased to Ambika in return for the money she owned him. The agreement was not reduced to writing. The evidence excepting Ex. A(3) is mainly oral. The learned Subordinate Judge has disbelieved this evidence and I am not prepared to say he is wrong.
32. Exhibit A(3) purports to be an account showing the money due after taking account by Manikya to Ambika. The Trial Judge did not think this was genuine. He gave certain reasons for his conclusion and I am not prepared to say he was wrong. It has been contended that the plaintiff's conduct in not suing before showed that he, was aware of the agreement. Also he brought a rent suit in conjunction with the defendants in which he described his share as 10 gandas, But that doe's not show necessarily that he knew that Manikya had really been originally entitled to 1 anna share of the property covered by the first mortgage, and had transferred her interest. Even if he had heard of it, it cannot be said that his neglecting to sue before showed that he acquiesced in the arrangement. He may have known that he was entitled to 1 anna but at the same time may not have thought it worth his while to sue. He may have been doubtful whether he would be able to establish his claim. I do not think the conduct of the plaintiff really shows that he knew of the alleged agreement and so did not sue. And even if he had been told about the alleged agreement, that would not go very far unless it was Manikya. Who told him about it and on this point there is no evidence at all. There is another fact, which is significant the defendants took some 2 months before filing their written statement. Even then the written statement did not contain the date of the alleged agreement.
33. The case there set out (see para. 15 of the written statement) is very vague. No date is given though obviously they could have given the date, for if Ex. A(3): was then in existence it had the : date on, it and there would have been No difficulty in, giving it. I agree with the Trial Court that the alleged agreement by which Manikya sold the 2/3rds of, the property mortgaged in the first mortgage has not been proved. With regard to the second contention put forward by 'the appellants it is not necessary in view of my finding on the first point to decide it. No question of part performance can arise in the case as the agreement of which part performance is alleged has not been proved to have been entered into. It is not, therefore, necessary to discuss whether a registered document, was or was it necessary. All the points are decided against the appellant. I agree that the appeal must, therefore, fail and be dismissed with, costs.