Patna High Court
Babu Deonandan Prasad Singh vs Janki Singh And Ors. on 30 March, 1920
Equivalent citations: 56IND. CAS.322, AIR 1920 PATNA 89
JUDGMENT Mullick, J.
1. This litigation arises out of the sale of an estate which was held tinder Act XI of 1859 in consequence of the default of the proprietors of the twelve-annas share to pay the Government revenue due from that share.
2. It appears that a separate account has been opened for the 4-annas share and that the residuary 12-annas share stands in the names of plaintiffs Nos. 1 to 20; plaintiffs Nos. 7 to 16 and Nos. 17 to 20 are respeatively owners of 9 annas and 3 annas therein; plaintiffs Nos. 1 to 6 claim to be assignees as to portions of the above 3 annas share, while the defendant Deo Nandan Prosad Singh holds an usufructory mortgage over the same and was the auction-purchaser at the sale.
3. The plaintiffs brought the suit in the Court of the Subordinate Judge to set aside the auction sale, on the ground that the defendant No. 1 had fraudulently withheld payment of the Government demand, and they claimed that the defendant should convey the property to the plaintiffs and give possession with mesne profits. An alter' native claim for damages was also made, bat it was withdrawn with liberty to being a fresh suit thereon.
4. The Subordinate Judge dismissed the suit with costs.
5. On appeal to the High Court it was decreed that the sale was invalid and that upon the plaintiffs paying into Court the purchase money with interest from the date of the sale, the defendant should through his guardian convey the property to the plaintiffs by a proper deed of sale.
6. On appeal to the Privy Council this decree was modified and their Lordships were of opinion that the declaration in the decree, that the sale and purchase ware invalid, was misconceived as a description of the legal position, and that in its place should be substituted a declaration that the property purchased must be held for the benefit of the plaintiffs and the 1st defendant-, according to their several interests, and that subject to the repayment of Rs. 425 with interest there should be a direction for a conveyance as decreed by the High Court on payment of that amount on or before a date to be fixed by the Subordinate Judge. With this variation the decree of the High Court was affirmed in all respects.
7. The plaintiffs then applied on the 7th of September 1918 for the execution of the above decree. The judgment debtor, defendant No. 1, filed an objection on the 21st November 1918. On the 28th April 1919 the Subordinate Judge of Monghyr dismissed the objection and held that execution must proceed. The present appeal is directed against this order of dismissal.
8. The first point urged before us is that there can be no delivery of possession in this execution proceeding.
9. It is contended that their Lordships of the Privy Council only directed the execution of a conveyance and that as the decree is silent as to delivery of possession, the plaintiffs must bring a separate suit on the completed contract.
10. Now it is admitted that in a suit for specific performance of a contract for sale of land, it is open to the plaintiff to join with his prayer for specific performance a claim for delivery of possession, unless the contract expressly disentitles him to such relief. A contrary view has sometimes been taken, but I think it is now settled that a cause of action for delivery of possession may arise both upon the contract and the completed conveyance. [See Ranjit Sinha v. Kalidasi Debt 6 Ind. Cas. 205 : 37 C. 57 : 14 C.W.N. 527 and Madan Mohan Singh V. Gaja Prosad Singh 11 Ind. Cas. 228 : 14 C.L.J. 159.] Forms Nos. 47 and 43 given in Appendix A in the First Schedule to the Civil Procedure Code also support this view.
11. Ordinarily the plaintiff would be entitled to ask for both reliefs and a subsequent suit for delivery of possession would, I think, be barred under the provisions of Order II, rule 2, Civil Procedure Code, which in its application to oases of contract merely asserts the principle that the Court will not direct the performance of a part of the contract where the whole can be enforced. is an exception to this rule, the Court will decree a claim for a conveyance only in oases where it embodies the substantial part of the agreement and where the Court can direct its execution without regard to the question whether or not its provisions can be specifically enforced.
12. Where the tight to possession springs out of the contract for sale, delivery of possession would, in my opinion, be included in relief by specific performance. Generally the right arises coincidently with the right to the execution of the conveyance, and if their Lordships of the Madras High Court in Krishnammal v. Manandiar Sandararaja Aiyar 23 Ind. Cas. 912 : 38 M. 698 : 15 M.L.T. 103 : (1914) M.W.N. 200 : 1 L.W. 147 intended to lay down a contrary view I would respectfully venture to differ.
13. The plaintiffs before us did in fact ask that the sale should be set aside and delivery of possession given after the execution of a conveyance, and in my opinion their Lordships of the Calcutta High Court as well as their Lordships of the Judicial Committee intended that the relief as to possession, being ancillary, should be included in the relief as to execution of the necessary document. Therefore, although their Lordships of the Judicial Committee have not expressly made an order for delivery of possession, that relief follows immediately from the order for the execution of the conveyance.
14. It has been contended by the learned Vakil for the appellant that other equities may arise and it has been hinted that a decree for delivery of joint possession is in the nature of a declaratory decree and cannot be executed, Such a view has sometimes been taken, but the weight of authority, in my opinion, shows that delivery of joint possession can be made among co proprietors.
15. Then it is said that the 3 annas share is under usufructuary mortgage and that for this reason and for the reason that assignments have been freely made by the recorded co-sharers, a decree for possession could not be worked out in the execution department. The Taw, however, merely requires that the vendor shall make to the vendee such delivery of possession as the nature of the property admits of, and in this case I see no difficulty in giving to the plaintiffs that possession which they had at the time of the sale. There is no reason why the plaintiffs should be relegated to a separate suit for obtaining a relief which can without difficulty be given in the execution department, and I cannot conceive that it is the intention of their Lordships of the Judicial Committee that litigation should be multiplied for this purpose.
16. It is contended that if a suit for possession lies upon the executed conveyance, then delivery of possession should not be made in execution. I do not think Section 47, Civil Procedure Code, is any bar. That section says that if the decree gives a certain relief, a separate suit for obtaining that relief will not lie during the pendency of execution proceedings founded on that decree. In the view that I take of the meaning of the decree, delivery of possession can and should be made.
17. I think, therefore, that the first objection must fail and upon the officer of the Court executing the document on behalf of the judgment-debtor, if he refuses to execute it, a right to possession vests in the decree-holder which can be enforced by the execution Court.
18. The next point urged on behalf of the appellant is that the decree of "their Lordships of the Privy Council is a nullity, inasmuch as the heirs of one of the respondents who had died before the decree were not brought upon the record. It is contended that so far as the interest of the deceased plaintiff respondent is concerned, the suit has abated and as the cause of action has not survived to the remaining plaintiffs respondents, they cannot execute the decree.
19. Now apart from the question of fact as to whether or not Eklal, the deceased respondent, bad died before their Lordships of the Privy Council heard the appeal, I am unable to accede to the proposition that any Court in India can regard the order of the Sovereign as a nullity. It has been held in Flood v. Egan (1889) 20 N.S.W.R. 337 that where, pending the hearing of the appeal, the respondent died and the Judicial Committee heard the appeal in ignorance of the death, and the appellant was ordered to pay" costs, the Court below should refuse to ignore a decree of the Sovereign in Council. The provisions of Will. IV, C. 41, Section 23, seem to furnish express statutory authority for this view. Indeed it would be a curious result if the defendant appellant should now be permitted to take advantage of his own negligence or wilful omission. It was his duty to substitute parties in the Privy Council and it is certain that if he had succeeded in his appeal, he would have strenuously resisted the plea that the decree was a nullity. I think, therefore, that the contention, that the only decree which it was possible to the Subordinate Judge to execute was the decree of the High Court, is untenable and must fail.
20. But there is a more substantial ground upon which the appellant's contention must fail. The learned Subordinate Judge has found that Eklal did not die in 1916, as has been alleged by the appellant, and that he was alive at the time that their Lordships heard the appeal. One witness, a karpardaz, has given evidence on behalf of the appellant that Eklal died in 1916. On the other hand the respondents have produced one of their co-sharers named Janki Singh, who says that Eklal died in 1917. The learned Subordinate Judge, having taken the oral evidence of both sides into consideration, has some to the conclusion that the judgment debtor has failed to discharge the onus that, lay upon him. The appellant also, produced a report from an officer of the Collector's office at Monghyr, stating that in a certain death register kept in the Collectorate for the year 1919 the name of Eklal is shown as having died on the 29th March of that year. The report was signed on the 3rd January 1919 and the register in question was destroyed on the 15th March of that year. The original register was, therefore, not available to the respondents in the Court of the Subordinate Judge on the 26th April, when the hearing of the execution case began. It is clearly impossible to place any reliance upon a report of this kind. The respondents had no opportunity of (sailing for the original register or even obtaining copies of the relevant entries therein with a view to eliciting what was the nature of the register, who was the person who gave the information of the death of Eklal and what was his official status.
21. It is very pertinently observed by the learned Subordinate Judge that in the execution petition filed by the judgment-debtor on the 21st November 1918 no particulars were given showing that the judgment-debtor would contend that Eklal died on the 29th March 1916, and that the date of his death was not disclosed till the 18th of March 1919, that is to say, 3 days after the destruction of the register. The appellants have also filed two reports from the office of the Collector, Exhibits 2 and 2A, to the effect that in the death register for 1917 there is no entry of Eklal's death. The learned Subordinate Judge observes that Eklal may have died in a village other than the village to which the register relates.
22. We agree with the learned Subordinate Judge that in this state of the evidence, both documentary and oral, it would be impossible to hold that the onus cast upon the appellant has been discharged.
23. These are the only two points which have been argued before us and on both the appellant must fail, The appeal is, therefore, dismissed with costs.
Sultan Ahmed, J.
24. I agree.