Patna High Court
Kailash Singh vs Sheopujan Singh And Anr. on 21 December, 1951
Equivalent citations: AIR1952PAT380, AIR 1952 PATNA 380
ORDER Rai, J.
1. This application on behalf of the plaintiff is directed against the judgment and order dated the 16th of January 1951 passed by the 2nd Additional Subordinate Judge, Chapra, remanding the suit for fresh trial with certain directions.
2. The facts leading to the present petition may shortly be stated as follows. The plaintiff instituted a suit for specific performance of contract for sale said to have been entered into by one Musammat Jaimurta Kuer in respect of her properties, including the residential house, for a consideration of Rs. 3500/-. According to the case of the plaintiff, the terms of the agreement between the parties had been reduced into writing in a Mahada-nama, exhibit I, on the records of the case. (3) The defendant contested the suit on various grounds. She pleaded that she had not agreed to sell any portion of the properties inherited by her from her husband and that there was no necessity at all to enter into such an agreement. She further pleaded that the plaintiff had taken her to Chapra on several occasions for taking probate of the will of her husband and in that connection he had taken her thumb impression on several plain and stamped papers, one of which appears to have been converted into the alleged Mahadanama.
4. The suit was decreed by the trial court. The order portion of its judgment ran as follows :
"The suit be decreed on contest with costs against the defendant......
It is declared that the defendant did enter into an agreement for executing a sale deed in favour of the plaintiff for a consideration of Rs. 3500/- with respect to the lands and the house in question and it is further declared that in pursuance of that a Mahadanama was executed and the defendant has received Rs. 500/- by way of advance. The plaintiff is ordered to pay the balance of the consideration money to the defendant within one month of this order or deposit the same in court to the credit of the defendant. On such a deposit being made, the defendant is ordered to receive the said sum of Rs. 3000/-and execute a sale deed for the lands and the house in suit for a consideration of Rs. 3500/- in favour of the plaintiff within 15 days of the said deposit or the receipt of the said consideration money by the defendant. In the event of failure, the said sale deed will be executed by the court on behalf of the defendant. If the plaintiff fails to pay the deposit the balance of the consideration money within the period prescribed he will lose his right of getting the sale deed executed. Let a decree be prepared accordingly."
5. The defendant went in appeal. During the pendency of her appeal she died, and the present opposite party were substituted in her place. I have been told that the sale deed in question has not yet been executed. The court of appeal below has remanded the suit for a fresh decision with a direction that after the death of the defendant it had become necessary to find out whether the alleged contract for sale was for legal necessity so as to bind the reversioners. As this matter had not been gone into, the parties were given liberty to amend their pleadings and to adduce fresh evidence on that point.
6. In this Court, the learned advocate for the petitioner contended that the Court below had erred materially in the exercise of its jurisdiction by remanding the case with liberty to introduce the question of legal necessity in the suit. He argued that the opposite party who were substituted in place of Musammat Jaimurta Kuer should not have been permitted to set up a plea of want of legal necessity to, defeat the claim of the plaintiff which could not have been raised and pleaded by the original defendant. He submitted that the substituted legal representatives were entitled to carry on the litigation in the form it had originally started. He argued that the legal representatives of the original defendant, who had been substituted at the appellate stage should not have been permitted to set up their status as reversioners because they were not substituted qua reversioners. In my opinion, there is not much force in argument advanced on behalf of the petitioner. The word "legal representative" as defined in Section 2 (11) of the Code of Civil Procedure does include a reversioner also who does not claim under the limited owner but under the absolute owner.
7. Mr. Srivastava relied upon the cases of 'KAMESHWAR SINGH v. RAJBANSI SINGH', AIR 1943 Pat 433; 'ELAYA PILLAI v. RAMA-SAMI JADAYA', AIR 1947 Mad 165; 'DAREPPA v. MALLAPPA', A. I. R. 1947 Bom. 307; 'RAM UGRAH v. GANESH SINGH'. I. L. R. (1940) All. 153 (F. B.) and 'SADHU SHARAN v. DEONATH SARAN', 22 Pat 411 (FB). In my opinion, the observations made in those cases regarding the right of substituted legal representatives do not apply to the facts and circumstances of the present case. Here the position is different. The plaintiff obtained a decree for specific performance of a contract for sale against the limited owner. There is no doubt that the alleged contract by the limited owner must be prima facie taken to be a contract for sale of her life interest only. Now, if she died before the execution of the sale deed, I doubt if any right was left in the plaintiff to claim specific performance from the reversioners upon the basis of the original contract even if it be genuine. A reversioner cannot be asked to execute a sale deed in respect of the life interest of Musammat Jaimurta Kuer after her death. In this view of the matter, the remand order by the court of appeal below cannot be said to be without jurisdiction. It had every jurisdiction to take the view that the question of legal necessity had to be gone into before an effective decree could be passed against the reversioners. I may, however, mention that I should not be taken to have expressed any opinion that a decree can be passed against the reversioners. It will be for the trial Court to decide.
8. Mr. Srivastava strongly relied on the case of 'ELAYA PILLAI v. RAMASAMI JADAYA', A.I.R. 1947 Mad 165, but with all respect to the learned Judge who decided that case I do not subscribe fully to the view taken by him. My own view is that amendment should be allowed to shorten litigation. [It is admitted by Mr. Srivastava that the op-Iposite party have every right to bring a suit for possession on the ground that they are not bound by the action of Musammat Jaimurta Kuer. Thus, the effect of the amendment is to decide that very matter in the present suit after giving opportunity to both the parties to adduce fresh evidence.
9. Mr. Srivastava has further directed my attention to an unreported decision of this Court in L. P. A. 24 of 1941 decided by my Lord the Chief Justice and Chatterji, J. on the 6th of October 1944 where their Lordships refused to allow additional evidence to be put in at the Letters Patent stage. In my opinion, that decision has no bearing on the present case.
10. Now, even if the Court of appeal below took an erroneous view of law, I do not think that I am justified in interfering with its judgment in my revisional jurisdiction as contemplated by Section 115 of the Code of Civil Procedure.
11. The result is that the application fails and is dismissed with costs; hearing fee : one gold mohur.