Patna High Court
Sukhdeo Dubey And Anr. vs Ram Prasad Dubey And Ors. on 26 November, 1964
Equivalent citations: AIR1965PAT192, AIR 1965 PATNA 192
JUDGMENT Misra, J.
1. This appeal is directed against the judgment of Shib Chandra Prasad, J., who allowed the appeal from the judgment of the learned Additional Subordinate Judge I, Hazaribagh. He allowed the appeal setting aside the judgment of the learned Munsif of Hazaribagh. The trial court decreed the suit. The present appeal has been preferred by defendant Nos. 1 and 2, The suit was brought for a declaration that the plaintiffs-respondents wove entitled to -/4/9 3/4 pies interest in the lands described in schedule 'Kha' of the plaint. They sought the relief of confirmation of possession and, in the alternative, if they were found to be out of possession, for recovery of possession by dispossessing the defendants-appellants. They also prayed for carving out the patti of their own share separately by appointment of a commissioner by the court.
The plaintiffs' case was that they and the defendants were residents of the same village, viz. Tatra, and were also related as gotias. They entered into an agreement with the defendants for taking settlement of the suit lands. The agreement was dated the 2lst of May, 1947, and was an unregistered document. The circumstances in which the agreement was entered into wore, as stated in the plaint, that near Tatra there were two villages, Koiria Nawada and Kami. Bisunlal Singh, who was a Mokhtar, hold eight anna proprietary interest in village Koiria and -/10/6 proprietary interest in village Kami. He intended to Kettle his bakasht and ghair mazrua lands lying in these two villages on raiyati basis. Accordingly, the parties Approached the landlord for taking settlement of the lands in the two villages.
It appeared to them, however, that if they would enter into a competition the rate of salami payable to the landlord might lie enhanced; hence, they came to an amicable arrangement that they should take settlement of the bakasht land of both the villages contributing their share of the salami according to the extent of their interest, The amount fixed as salami was Rs. 4,000/- and the annual rent was Rs. 150/-. Accordingly, the plaintiffs and defendants Nos. 2 to 5 executed a deed of agreement before the execution of the patta by the landlord. In accordance with their previous decision, they mentioned it in the agreement that the shares of the parties in the land to be taken in settlement in the two villages would be as mentioned in schedule 'Ka' of the plaint. The patta to be executed by the landlord would show the payment of Rs. 2,000/- only as salami although the amount actually to be paid was Rs. 4,000/-, This device was adopted in order to save the higher cost of the stamp to be affixed on the document.
2. The defence case, on the contrary, was that the sum of Rs. 2,000/- mentioned as salami was the correct amount. The plaintiffs did not pay anything towards that amount. The land in suit was taken in settlement by the defendants on their own account with which the plaintiffs had no concern. They wore put in possession by the landlord. The deed of agreement, however, was executed by them allowing the plaintiffs to take a shave in the land to be settled, because the plaintiffs held out threats of going to the landlord and pushing up the amount of salami by offering to take settlement themselves at a higher rate, Nothing, however, was contributed by the plaintiffs towards the salami payable in respect of the lands in suit and the plaintiffs acquired no interest therein.
3. The learned Munsif, however, acting mainly upon the deed of agreement (exhibit 1), held that the plaintiffs were entitled to claim a share in the lands settled by virtue of the agreement contained in Exhibit 1. He accepted the plaintiffs' case with regard to the salami being fixed at Rs. 4,000/- and not at Rs. 2,000/-. He also accepted the plaintiffs' evidence that they paid their share of the salami due to defendant No. 1 Sukhdeo Dubey. On appeal, however, the learned Additional Subordinate Judge, on a consideration of the evidence led by the parties, came to the conclusion that the salami payable was only Rs. 2,000/-ancl, in fact, the landlord would not have agreed to have a lower amount mentioned in the patta. He held also that the plaintiffs' story of having contributed their share of the salami money was not substantiated. He held against the plaintiffs even on the question of their possession of the suit land.
He agreed, however, with the learned Munsif in so far as his finding on the deed of agreement (Exhibit 1) was concerned, i.e., he also came to the same conclusion that there was no undue influence exercised by the plaintiffs in obtaining the deed of agreement. He held, further that the actual settlement was not made in favour of the plaintiffs as well along with the defendants, because, if that were so, there was no reason why the names of all the parties would not be mentioned in the patta itself. He negatived the case of the plaintiffs that defendants Nos. 1 to 3 were farzidars of the plaintiffs in respect of their interest of four annas and odd and that the transaction was benami. It may be stated that the lawyers for both the parties in the court of the learned Additional Subordinate Judge directed their argument to the question of banami. The learned Additional Subordinate Judge, however, for good reasons, came to the conclusion that the plaintiffs' case of benami settlement had no foundation. Accordingly, he allowed the appeal and dismissed the suit.
4. The learned single Judge, who heard the second appeal in this Court, accepted the findings of fact recorded by the learned Additional Subordinate Judge. He thought it proper, however, to allow the appeal all the same on the ground that if the learned Additional Subordinate Judge found the deed of agreement (exhibit 1) to be genuine, then the settlement in the name of the defendants-appellants must be deemed to have been taken by them in a fiduciary capacity. In substance, therefore, he held that if the contract between the parties embodied in the deed of agreement was to the effect that whatever land would be taken in settlement from landlord would be divided by the parties according to their interests as mentioned in the deed of agreement the same must be given effect to after the settlement was actually taken. The mere fact, therefore, that the plaintiffs did not contribute their share, or that the salami was a sum of Rs. 2,000/- only could not make any difference in the legal position so as to affect the right of the plaintiffs claimed in the land in terms of the deed of agreement (exhibit 1).
Mr. B. C. De who has argued the case on behalf of the appellants has raised a number of questions in support of the appeal.
They are as follows:--
(1) Exhibit 1 being a document creating interest in immovable property in favour of the plaintiffs could not be admissible in evidence unless it was duly registered.
(2) The suit of the plaintiffs must be construed to be one for specific performance of the contract contained in Exhibit 1. The document having been executed on the 21st May, 1947, and the present suit having been instituted on the 9th of January, 1951, it would be beyond three years from the date of the execution of the agreement and as such barred by limitation.
(3) If the present suit is a suit for specific performance of a contract, it must fall for the simple reason that the plaintiffs did not offer to pay their share of the salami; on the contrary, they made out a case that they had already paid the amount to defendant No. 1 which, however, has not been accepted by the final court of fact. Moreover, the case of specific performance of a contract was not set up in the plaint.
(4) The suit would be also barred under Article 113 of the Limitation Act because the proceeding under Section 144, Code of Criminal Procedure, which is the basis of the order under Section 145, was started on the 9th of November, 1947, and order therein was passed on the 28-1-1949, whereas the present suit was filed on the 9th November, 1951.
5. In support of the first plea that Exhibit 1 is inadmissible for want of registration, Mr. De has relied upon the following: Section 17(1)(b) of the Registration Act; Rani Hemanta Kumari Devi v. Midnapur Zamindari Co. Ltd. 46 Ind App 240: (AIR 1919 PC 79); Bageshwari Charan Singh v. Jagarnath Kuari, ILR 11 Pat 272 at p. 277: (AIR 1932 PC 55 at p. 50); Kameshwar Singh v. Rajbansi Singh, AIR 1043 Pat 433 at p. 442. In support of the second point, that as a suit for specific performance of contract it is barred by limitation and that, no offer to pay the amount having been made by the plaintiffs, it may be bad on that account as well, ho has relied upon; Ariff v. Jadunath Majumdar, 58 Ind App 91: (AIR 1931 PC 79); Pir Buksh v. Mahomed Tahar, 61 Ind App 388: (AIR 1934 PC 235). In support of his argument that the plaintiffs' case of having paid their quota having failed, they would not be entitled to a decree for specific performance, he has referred also to: Ardesbir H. Mama v. Flora Sassoon, AIR 1928 PC 208 and Madan Choudhry v. Kamaldhari Thakur, AIR 1930 Pat 121. I may state at this stage that Mr. T. K. Prasad appearing for the respondents has conceded that the plaintiffs' suit cannot be construed as a suit for specific performance of a contract. The suit must succeed or fail on a consideration of Exhibit 1 itself. If the plaintiffs acquired title by virtue of that document, their suit would be decreed; and if that document would be hold not to confer any title upon the plaintiffs, their suit must be dismissed, and the present appeal is to be allowed. It is accordingly not necessary to refer to those decisions cited by Mr. De which have a bearing on the question of the present suit being decreed as a suit for specific performance of a contract.
Mr. T. K. Prasad has urged, however, that Section 17(1)(b) of the Registration Act cannot operate as a bar against the plaintiffs acquiring title to the suit land under Exhibit 1, because the document would be held to he a valid document in terms of Section 17(2)(v) of the Registration Act. He has relied in support of his contention upon ILR 11 Pat 272: (AIR 1932 PC 55) and Ramjugeshwar v. Gajadhar, ILR 29 Pat 980 at p, 981. He has contended that Exhibit 1 is an executed document and not an executory document. He has also referred to Ss. 82, 88, 92 and 94 of the Indian Trusts Act as also to the decision in Satgur Prasad v. Har Narain Das, AIR 1932 PC 89. Mr. De has, however, referred to the decision of the Privy Council in Siddik Mahomed Shah v. Mt. Swan, AIR 1930 PC 57 (1) and Hem Chand v. Pearey Lal, AIR 1942 PC 64 for his contention that the learned single judge was in error in applying the principle of fiduciary capacity which was never pleased by the plaintiffs in the Courts below. In my opinion, however, it may he entirely academic to enter into most of those questions in view of the pleadings of the parties and the findings recorded by the final Court of fact below. The Ekrarnama, dated the 21st May, 1947, in so far as it is relevant runs thus:
"We, the executants are residents of the same mouza Tatra and belong to the same caste. Mouzas Koria Nawadih and Kami are near mouza Tatra. Hence we, the executants, are trying to take settlement of both the mouzas. Hence we, the executants of our own accord and free will, in a sound state of body and mind, in one proper sense, without pressure and coercion on the part of anybody else and quite in good faith willingly, decided among us and do hereby declare that we the executants, shall take settlement of raiyati lands in both the mouzas according to our (respective) share described herein below and that if any one party from among us or more than one party, or any one member of us shall take settlement in his personal name or in the name of his relation or farzidar, we the executants shall have share therein according to the shares defined herein below. To this, none of us or our heirs and representatives shall raise any kind of objection. If we do so, the same shall be null and void and illegal in face of this deed and shall be liable to pay costs and damages".
It is thus clear that if this document is admissible In evidence by itself it would create an interest in favour of the plaintiffs.
6. Mr. B. C. De has contested that the instrument created an interest in immovable property which was a piece of land to he taken in settlement by either of the two contracting parties and, as such, it would not he admissible in evidence, since the value of the property covered under it was Rs. 4,000, unless it was duly registered. He has relied upon Section 17 (1) (b) of the Registration Act which provides for the compulsory registration of non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property. Mr. De's contention is that the stipulation contained in this agreement between the parties is general to the effect that any one of the contracting parties getting the settlement would be bound to divide the land in the manner indicated in the instrument whenever the settlement would be taken. It is a clear case of creating a title In property which would be taken in settlement in future and, as such it is an instrument which unless it is registered, will not be operative to create any title, nor will It be admissible in evidence in terms or Section 49 of the Registration Act.
Mr. T. K. Prasad, on the contrary, has relied upon Sub-section (2), Clause (v) of Section 17 which provides that any document not itself creating, declaring, assigning, limiting or extinguishing any right, title or interest of the value of one hundred rupees and upwards to or in immoveable property, but merely creating a right to obtain another document which will, when executed, create, declare, assign, limit or extinguish any such right, title or interest, will not be required to be registered in terms of this provision. His argument is that this deed of agreement did not create by Itself any title to the property to be taken in settlement, As I have already stated, Mr. De has relied upon a number of decisions including one in 46 Ind, App 240: (AIR 1919 PC 79). The principle of law on this point is well settled the only question is how far it applies to the facts of this case. On a careful consideration of the respective contentions of the learned counsel for the parties, I am inclined to hold that the argument advanced by Mr. De has substance and that advanced by Mr. T. K. Prasad is not correct.
So far as the plain wording of Section 17 (1) (b) is concerned, it applies in all respects to the facts of the present case. The endeavour of Mr. T. K. Prasad to bring the present agreement within the terms of Clause (v) of Sub-section (2) of Section 17 can only succeed in terms if it were provided in this agreement that another document would be executed by the parties for transference of the interest to be acquired by way of settlement. That is not the position here. It may, however, be urged that even if it is not so provided in specific language, the intention of the parties should be taken into account as was held in the case of Ramchandracharyulu v. Rangacharyulu, AIR 1926 Mad 1117 at p. 1119. It may very well be contended that the effect of this instrument would be the creation of an interest in favour of the plaintiffs by virtue of this contract between them. That decision also, however, shows that it was a case of agreement among the persons who were tenants-in common of the property and every one was entitled in theory to every particle of the property when they entered into an agreement to share them in certain proportions.
Reliance was placed in that case on a decision of the Privy Council in Rajangam Ayyar v. Rajangam Ayyar, AIR 1922 PC 266. That too, however, was a case of an agreement among the members of a Hindu joint family so that the question of any one acquiring title to the property in which he had no pre-existing interest did not arise. It is true, no doubt, that in the Madras case it was observed further that the agreement among the parties in that case might well be construed as impliedly creating the right to have the document executed in future, if necessary, and, in fact, the plaint was sought to be amended by adding this prayer which was allowed by the High Court. In me present case, however, not only there is no such prayer and the parties are not members of the same family, but some land was to be taken to settlement from the landlord in which the plaintiffs claimed an interest even if the settlement was taken by the defendants-appellants.
It appears to me to be a clear case of an agreement by which title would be created in favour of the plaintiffs in the immovable property exceeding the value of rupees one hundred, even if the property was acquired by any one of the contracting parties. In my opinion, therefore, it seems clear that the document is not admissible in evidence and, as such, the plaintiffs acquired no title of any kind under Ex. 1, which must be held to be inadmissible for want of registration.
7. Assuming, however, that the document contained a contract between the parties creating an implied right in favour of the plaintiffs to get their due share in the properties to be taken in settlement, it would still be ineffective to create any interest in the properties in favour of the plaintiffs for another reason. If the plaintiffs' case had rested entirely upon Ex. 1 which is in general terms specifying the shares to go to the parties when settlement could be taken, the plaintiffs might have a good case for a decree. As it is, however, it does not specify what amount of Salami was to be paid for the land nor the amount which was payable by the plaintiffs as their share of the Salami money. In the plaint, however, a case has been made out that the amount of Salami was fixed at Rs. 4,000, although in the Patta granted by the landlord the amount of Salami mentioned was Rs. 2,000 only. It was further pleaded that the plaintiffs paid their share of money to the defendants who took settlement and actually put the plaintiffs in possession. The contract relied upon by the plaintiffs, therefore, is not the one contained in Ex, 1, but a new contract altogether with all the details set out in the plaint.
I have already pointed out, however, that except on the question of the execution of Ex. 1 without undue influence, on which the finding of the learned Additional Subordinate Judge was in favour of the plaintiffs, on all other questions the learned Additional Subordinate Judge has recorded findings against them, i.e., (1) Salami payable was not Rs. 4,000 but Rs. 2,000 only; (2) the plaintiffs did not pay any money whatsoever to the defendants as their share and (3) they were never put in possession. In view of these findings, it must be held that the contract set out in the plaint has not been established. It is a substantially different kind of contract, therefore, which is contained in the plaint, from that contained in Ex. 1. Upon the findings of facts recorded by the learned Additional Subordinate Judge, the contract set out in the plaint and supported in evidence on behalf of the plaintiffs has not been established, if the contract, therefore, is not established, the plaintiffs cannot claim to have acquired any right, title or interest in the suit properties. It is the common case of the parties that the Patta was granted in the name of the defendants. They advanced the consideration for the payment of Salami and they came into possession. The plaintiffs' claim, there-
fore, cannot succeed to any portion of these properties.
8. Another aspect of the matter, however, in which the point has been canvassed before us, and which appealed to the learned single judge, is that the defendants-appellants became a trustee in the eye of law by virtue of the agreement Ex. 1. If Ex. 1 is held to be inadmissible in evidence, this argument must be overruled. Moreover, it has been contended by Mr. De that this is an aspect of the matter which was never pleaded by the plaintiffs in the plaint who set out a simple case of a contract on foot of which they acquired title to the lands settled with the defendants. The learned single Judge was not correct in making out a third case for the plaintiffs and allowing the appeal on that ground. Whether a person would become a trustee in the eye of law on the facts and circumstances is a matter of evidence and not merely a question of law. In my opinion, the contention of Mr. De is well founded. Neither in the plaint nor in the evidence, nor before the Courts of fact, was such a case made out on behalf of the plaintiffs. The learned single Judge was not, therefore, justified in taking into consideration the matter of fiduciary relationship between the plaintiffs and the defendants.
Moreover, none of the sections of the Trusts Act upon which reliance has been placed to which reference was made by the learned counsel for the parties, is relevant. Section 82 of the Act is a case of property which is transferred to one person for a consideration paid or provided by another person, and it appears that such other person did not intend to pay or provide such consideration for the benefit of the transferee, then the transferee must hold the property for the benefit of the person paying or providing the consideration. In this case, the finding of fact is that no consideration was either paid or provided by the plaintiffs. In terms, therefore, Section 82 will not be available to the plaintiffs in the present case. Section 88 refers to the case of a fiduciary under which term comes a trustee, executor, partner, agent, etc., or other person bound in a fiduciary character to protect the interests of another person. If such a person enters into any dealings by taking advantage of his position, which dealings are adverse to the beneficiary, then the advantage gained by him shall inure for the benefit of the beneficiary. The defendants cannot be brought within the scope of the term 'fiduciary' and Section 88, therefore, is not relevant.
Section 90 relates to the case of advantage gained by a qualified life-owner, such as tenant or co-owner and mortgagor, etc., and it must also be ruled out of consideration as having no bearing on the point. Section 92 refers to the case of a purchase by a person contracting to buy property to be held on trust. That also provides for a case where a person purchases the property expressly to be held on trust for certain beneficiaries, and then he himself would hold the property for their benefit to the extent necessary to give effect to the contract. In the present case, however, it cannot be said that defendant No. 1 entered into a contract to take the settlement on trust for beneficiaries, but it is the case of an ordinary contract between two persons who entered into an agreement to divide the properties in certain proportions. In any view of the matter if the finding of fact stands, as I have held above, that the contract set out by the plaintiffs has not been established, then Section 92 also by no stretch of language can be invoked to govern the relationship between the plaintiffs and the defendants under the agreement (Ex. 1).
9. In the result, therefore, it must be held that the learned single Judge was in error in allowing the appeal and setting aside the judgment of the learned Additioned Subordinate Judge. This appeal, therefore, must succeed. The judgment of the learned single Judge is set aside and that of the learned Additional Subordinate Judge is restored. The appellants shall be entitled to costs throughout.
G. N. Parsad, J.
10. I agree.