S.A. No. 2423 of 1917.
1. This appeal arises out of a suit for recovery of possession of certain shares in a property belonging to a joint Mitakshara family and for partition.
2. The family consisted of one Mohar Singh, his wife Rani Kumari and five sons Jagannath, Nanda, Sankar, Gouri and Durga Prosad, the last being dead.
3. It appears that the property was mortgaged by Mohar Singh to one Madhu Sudan, who sued on his mortgage and in execution of his decree purchased the property on the 19th November 1890. Madhu Sudan, however, did not enter into possession of the property and the property remained as before in the possession of Mohar's family. On the death of Madhu Sudan, his executor Syama Charan sold the property to Raghu Nath, defendent No. 5, on the 8th January 1907. This Raghu Nath was a Benamdar of Mohar's family.
4. In March 1892, the property was sold in execution of a decree for rent obtained by certain co sharer landlords against Mohar, his mother, his wife Rani Kumari and two of his sons Jagan Nath and Nanda who were then minors represented by their guardian. The property was sold for Rs. 55 only and purchased by one Umesh, who has been found to be a Benamdar for Mohar. Umesh executed a conveyance in favour of Rani Kumari as guardian of her minor son Jagan Nath in June 1897. The latter again executed a conveyance of the property in favour of one Raghu Nath defendant No. 5, on the 24th August 1901. Raghu Nath trans-ferred plot No 1 only to Kristo Lal on the 21st September 1906.
5. Now, all these transactions from the date of the purchase by Umesh at the sale held in execution of the decree in 1892 up to the date of transfer to Kristo Lal on the 21st September 1906 have been found to be Benami transactions entered into by Mohar for saving the property from the hands of the purchaser Madhu Sudan, who had purchased it in execution of the mortgage decree in November 1890.
6. Defendants Nos. 2 and 3 who are some of the landlords then sued Jagan Nath, Shama Charan, Raghu Nath and Kristo Lal for their share of the rent and obtained a decree in execution of which the defendant No. 1 purchased a 2/3rd share of the property in 1910. The defendant No 1 purchased the right, title and interest of the judgment-debtors in that case.
7. The plaintiffs, who are the three sons of Mohar, namely, Nanda, Sankar, Gouri, and Rani Kumari as the heiress of her deceased son Durga Prosad alleged that their interest did not pass by the sale and that they were entitled to their share of the property and demanded a partition of the came.
8. The Court of first instance was of opinion that the rule of estoppel could not hind the minors and it accordingly decreed the claim of two of the plaintiffs, namely, Sankar and Gouri, and disallowed the rest of the claim. The share of Sankar and Gouri is 1/3rd of 2/3rds=2/9ths. The Court of first instance gave a decree for the said 2/9ths share plus 1/3rd share which had not been sold, the total being 5/9ths.
9. On appeal, the learned Additional District Judge held that the minors were also estopped and accordingly dismissed the claim of the plaintiffs except as to 1/3rd which had not been sold at all.
10. The plaintiffs have appealed to this Court.
11. Two questions have been raised before us, first, whether the rule of estoppel by conduct applies to minors and, secondly, whether there was any representation which misled the purchaser defendant No. 1 so as to constitute an estoppel.
12. Now, the position of things appears to be this. Mohar was the manager of the joint family properties. He entered into these Benami transactions for the purpose of saving a portion of the estate from the hands of Madhu Sudan, who had purchased the family property at the sale held in 1890 The plaintiffs have expressly stated in their plaint that Raghu Nath as well as Jagannath and Kristo Lal were Benamdars of their family. The Benami transactions entered into by the father, therefore, were not only not challenged by the plaintiffs but were accepted by them and if any rights have sprung up, based on those transactions, such rights cannot be defeated by the plaintiffs. If they accepted the transactions entered into by the head of the family, they must be bound by the effect of such transactions. In this view of the matter it is unnecessary to consider the question whether the rule of estoppel by representation would apply to minors.
13. The next question is whether there was representation by which the defendant No. 1 was misled.
14. It appears that what was sold in execution of the rent decree obtained by the co-sharer landlords defendants Nos. 2 and 3 was the right, title and interest of certain persons 'in possession of the land and Jama standing in the name of late Ram Singh, the father of Mohar.' Four persons were named as the persons whose interest was sold, namely, Jagannath son of Mohar, Syama Charan executor of Madhu Suoan, Raghu Nath and Kristo Lal. The plaintiffs' case was that the defendant No. 1 knew the truth, namely, that the the property had remained joint family property inspite of the ostensible transfers in the names of Jagannath, Raghu Nath and Kristo Lal. The learned Additional District Judge says in his judgment: 'I see no adequate ground for finding that the defendant No. 1 did know that the property had remained with the whole family. Had he known that, I do not see why he should have made this purchase in a sale in execution of a decree in which the persons sued were Jagannath, Raghu Nath and Kristo Lal. I cannot see that is anything positively to indicate that he knew this.' In the next paragraph he says: 'Though in the nature of the case there would have been no express representation, nevertheless it is argued on behalf of the defendants the whole conduct of Mohar or the family was such as to make people suppose that they were the owners. Raghu Nath was the ostensible owner. All open action to be taken with regard to the property had been taken by him. The family gave all the world to understand that he was the owner. I, therefore, do not see my way to accept this argument on behalf of the plaintiffs. I decide that the learned Subordinate Judge was right in giving effect to the estoppel as against the major plaintiffs.' The learned Judge accordingly came to the conclusion that the plaintiffs were estopped.
15. In arriving at this conclusion, however, the learned Judge does not appear to have taken into consideration the fact referred to above, viz., that when the property was put up to sale and purchased by defendant No. 1, certain persons were described as being in 'possession of the Jama.' One of them, no doubt, was Raghu Nath a Benamdar, another Kristo Lal a Benamdar for one of the plots. But there was Jagannath also and though at one time the property stood in his name, he Was the eldest son of Mohar and a member of the joint family and was described as one of the persons in possession. Syama Charan, executor of Madhu Sudan, was also named as one of the judgment-debtors. It was never suggested that he was a Benamdar for the family. It is true that the learned Judge has referred to the fact that defendants purchased at a sale in execution of a decree passed against Raghu Nath, Jagannath and Kristo Lal, but the fact, that they were described as persons in possession does not appear to have been considered by the learned Judge.
16. It is pointed out on behalf of the appellants that possession is notice and that at any rate the description should have led the purchaser to inquire as to who was the. real owner and in whose possession the property was. The question as to how far the matters pointed out above could operate as constructive notice in the circumstances of the case, is one which ought to be considered by the Court dealing with facts in connection with the question of representation by conduct in determining the question of estoppel; in other words, whether the defendant No. 1 was misled when he purchased the property.
17. The plaintiff Rani Kumari's share in the property as heiress of her deceased son Durga Prosad should also be considered by the Court below.
18. We think, therefore, that the case should go back to the lower Appellate Court in order that the Court may come to findings upon these questions and then dispose of the appeal according to law.
19. Costs to abide the result.
S.A. No. 2407 of 1917.
20 The appeal is by Kristo Lal's representative (Kristo Lal having died pending this litigation) and relates only to plot No. 1.
21. The contention of the appellant in this appeal is that the Benami transaction was entered into for defeating the creditors, that the creditors were defrauded and that, therefore, the plaintiffs were entitled to get back the property.
22. Now, Kristo Lal was the ostensible transferee of plot No. 1 from Raghu Nath. It has been found by both the Courts below that the conveyance in his favour was merely a Benami affair and that there was no real transfer to him. The contention now raised before us was not raised in either of the Courts below. Even if the question is allowed to be raised, we do not think that the contention has any force. In the first place, the purchase by Madhu Sudan was in 1890 and the transfer to Kristo Lal was in 1906.
23. It is contended on behalf of the plaintiffs that nobody had in fact been defrauded and Madhu Sudan actually sold the property to the joint family in the name of Raghu Nath for Rs. 1,000 on the 8th January 1907. Had the question been raised in the Courts below, they might have shewn that in fact no one had been defrauded. But assuming that this Benami transaction was entered into for getting alt advantage over Madhu Sudan or to compel him to sell the property to the family at a low price, it appears that the fraud had been completed before the transfer to Kristo Lal. As stated above, Madhu Sudan purchased in 1890. More than 12 years bad expired in 1902 and the transfer to Raghu Nath did not take place until four years later. The transfer to him, therefore, cannot be set up as having been made in order to defraud the creditors. In the next place, in order to enable Kristo Lal to retain the property, he must expressly set up the illegality of the object and admit that he had been holding for a different purpose from that for which he took the property. He did not set up any such plea. His case was that he was a bona fide transferee. That case has been found against him by both the Courts below.
24. We may mention that the legal representative of Kristo Lal who was substituted in this case wanted to put in a copy of the decree in which it was held that he was not the Benamdar of the property. It appears, however, that all the evidence in the case had been taken before Kristo Lal's death, and he never asked the Court for permission to produce any such evidence. In these circumstances, we do not think that we ought to allow his legal representative to produce that evidence a this Suage of the case and we accordingly disallow that application.
25. The appeal is dismissed. Each party to bear his own costs in this appeal.
S.A. No. 2426 of 1917.
26. In this case the defendants Nos. 2 and 3, co-sharer landlords at whose instance the property was sold, are the appellants. Their contention is that there should be no decree for partition in the present case and that they being the landlords, a partition of the lands would have the effect of splitting up the tenure and would bind them.
27. It appears, however, that they claimed a tenancy right in the lands. The finding of the lower Appellate Court is that they failed to prove that they bad any permanent tenancy right. This is a matter which they themselves invited the Court to decide and it has been decided against them. This will not, however, in any way affect their interest as landlords or have the effect of splitting up the tenure merely because they were parties to the suit.
28. With these observations we dismiss the appeal. Each party to bear his own costs, HAppeal No. 2423 remanded; Appeals Nos. 2407 and 2426 dismissed.