Patna High Court
Deb Lal Jha vs Baldeo Jha on 30 March, 1920
Equivalent citations: 56IND. CAS.277, AIR 1920 PATNA 647
JUDGMENT
1. The dispute between the parties principally relates to two Mouziba known as Banaily and Matsopa. It is admitted that the plaintiff and the defendant were members of a joint family and continued to be joint until Baisak 1318 Mulki. It is the common case between the parties that after an iufructuous attempt at partition by arrangement, a suit for partition of the Ijmali properties was instituted by the defendant against (he plaintiff, as a result of which the properties in dispute were allotted to the parties in equal shares. The plaintiff relies upon the decree of Court allotting him an eight anna share in the Mouzahs in question, and says: 'I have an 8-anna share in these properties by virtue of a decree of Court. Nothing that happened subsequently could take away my properties and give them to the defendant. I wag dispossessed of these properties in Baisak 1322 Mulki. I claim to be put in possession of these properties with mesne profit payable by the defendant."
2. The suit was, therefore, of a simple nature and, unless the defendant could show that something did happen subsequently which had the effect of transferring the title in like properties to the defendant, the plaintiff was, on the pleadings in the care, entitled to a decree for possession. The defendant says, however, that there was a re arrangement between the parties in January 1915 as a result of which the defendant secured 16 annas interest in the properties in dispute. The subsequent rearrangement is set out in Exhibit A, furdbuttrara, as it is called, prepared by Bhek Nath Misser, arbitrator, and signed by both the parties. It is the validity of this transaction that is in debate before us. This document shows a complete partition between the parties. Certain properties were allotted absolutely to the plaintiff, and certain other properties including the properties in dispute were allotted to the defendant. This document was, however, not registered, but Mr. Manuk on behalf of the respondent argues that though he cannot defend his title on the conveyance, since none took place and the furdbutwara was not registered, still he can defend it on the equities resulting from ret gestae subsequent to and arising out of the agreement between the parties. On behalf of the plaintiff it was argued that the furdbutwara did not represent the final engagement between the parties, that the matter rested in negotiation and never ripened into an agreement, and that, in any event, the alleged agreement, was never acted upon by the parties.
3. The doctrine of part performance rests on the principle that Courts of Equity will not permit the Statute of Frauds to be made an instrument of fraud. There is no Statute of Frauds in India, but there is a Registration Act and the doubt which at one time existed on the question whether the equitable doctrine of part performance was applicable to India has now been set at rest by the decision of the Judicial Committee in the case of Mahomed Musa v. Aghore Kumar Ganguli 28 Ind. Cas. 930 : 21 C.L.J. 231 : 17 Bom.L.R. 420 : 28 M.L.J. 548 : 19 C.W.N. 250 : 13 A.L.J. 229 : 17 M.L.T. 143 : 2 L.W. 368 : 42 C. 801 : (1915) M.W.N. 621 : 42 I.A. 1 (P.C.). The Judicial Committee in the case cited thought that there was nothing in the Law of India inconsistent with the doctrine of part performance on which Courts of Equity in England have acted for many years.
4. But the jurisdiction to carry into execution transactions clothed imperfectly in legal forms being purely equitable, it is necessary to see what are the limits which the Courts of Equity have imposed on themselves for the exercise of the jurisdiction. Those limits must be clearly recognised and carefully guarded, for it is well settled that the doctrine cannot be extended beyond the limits within which it has hitherto been confined. The first essential condition for the exercise of the jurisdiction is that there mast be a final engagement between the parties. If the circumstances in the case suggest that the matter still rested in negotiation, clearly there is no room for charging a person on the equities resulting from the acts done in execution of the contract. The second essential condition is that there are such actings of the parties as must be uneqaivocally and in their own nature referable to the agreement alleged. If the alleged part performance cannot be connected with the alleged agreement, then clearly there is nothing which the Court has to undo and consequently nothing which has been left undone and which ought to be carried into further execution.
5. The principles being well established, it is necessary now to consider whether circumstances exist in this case which make it obligatory on the Court to apply the doctrine of part performance.
6. First, as to the alleged agreement. The defendant relies upon Exhibit. A, the funlbutwara, which shows that the allotment made by Bheknath Misser was accepted by the plaintiff; but, in my view, Exhibit A cannot be read apart from Exhibit B, a draft of a partition deed which ought to have been, bat was not, executed by the parties. It will be noticed on a reference to Exhibits A and B that Bheknath Misser's partition had reference to the properties kept joint by the Pleader Commissioner Sheo Prasad in the previous partition suit instituted by the defendant against the plaintiff. Apart from the properties which were specifically dealt with by Bheknath Misser, there were other properties as to which there were disputes, and I am satisfied on a perusal of Exhibit 8 that it was the object of the parties by a fresh arrangement to settle all their disputes once for all. Now, what does Exhibit B shew? It shews that there were various other disputes which ware not finally settled between the parties. It is sufficient for this purpose to refer to paragraphs 3 and 4 of the draft deed of partition. It appears that in addition to the properties specifically dealt with by Bheknath Misser, the parties did want to alter the arrangement with reference to certain other properties effected by the Pleader Sheo Prasad. The parties intended that certain lands in a certain Mouza which had been allotted by Sheo Prasad to the defendant should be transferred to the plaintiff. But neither the bigha, area nor the name of the Mouza is filled in the draft deed of partition. They are represented by dots in Exhibit B, Exhibit B further shows that in respect of the properties kept joint by the previous partition decree and dealt with by Bheknath Misser, the intention of the parties was that there should be an adjustment of account as to the rents realized, and that the liability of the party found on the taking of such accounts to have realized rent in excess of his share not only definitely ascertained, but discharged by the final arrangement between the parties. Paragraph 4, however, shows that the adjustment of account never took place between the parties and that it was never ascertained who was liable to whom and in what amount, for these important matters are not filled in the draft deed but are only represented by dots. The plaintiff says: "The whole object of the new arrangement was to settle every dispute between us. Ought it in equity to stand good as to part, when it is clear that we never came to an arrangement as to many important disputes between us?" The answer is furnished by the defendant's own evidence. The defendant in his evidence said, "At the time when we signed the Exhibit A. it was settled that a formal deed of partition should be executed," Bheknath Misser said, "It was settled that a partition dead will be executed according to the furdbutwara." In my view, the partition of the ijmali properties, being an it-em in the disputes between the parties, cannot stand, when it is shown that there ware various other disputes which remained unadjusted. I hold that the matter rested in negotiation and that the furdbutwara cannot confer a title on the defendant as to the properties in dispute.
7. The next point is equally clear, namely, whether there have been such actings as are unequivocally and in their own nature referable to the agreement alleged.
8. On referring to Exhibit A it will appear that Mouza Barbara Gopal was Allotted to the defendant. It is the defendant's case that the parties took possession according to the partition effected by Bheknath Misser. Exhibit 9 shows that the plaintiff, in a suit to which the defendant as co-proprietor was a party, recovered a decree for rent in repent of his 8 annals for a period up to March 1915. The alleged partition was effected on 7th January 1915. In my view the actings of the parties at a period immediately following the date of the alleged agreement are very important for considering whether there was such an agreement at all. If this view be correct, then there is no explanation why the plaintiff was allowed to sue for rent in respect of a property as to which he ceased to be a proprietor on the 7th of January 1915. Exhibit 7 is a petition for re hearing of the case filed by the defendant, on the ground that summons was not served on him. There is no suggestion in the petition that the plaintiff's suit was fraudulent inasmuch as he ceased to have any title to the property after 7th January 1915. On the other hand, there is an admission of the plaintiff's title by implication. In my view, it has not been shown that the defendant got exclusive possession of Monza Barbara Gopal on the 7th January 1915. I now come to Milik Dhaneshri which, it will be noticed, was allotted to the plaintiff. Exhibits 13 and 14 are plaints filed by the defendant for recovery of his share of rent in respect of Dhaceshri up to March 1916. The suits were filed on the 9th September 1916. They are absolutely inconsistent with the defendant's case that the parties took possession according to the furdbutwara. They show that, inapite of the furdbuiwara, the parties were in possession according to their shares
9. With reference to Matcopa, the property allotted to the defendant, the position is the same. In this village, the family had 8 annas share, the remaining 8 annas being held by a stranger. Exhibit 11 is a plaint filed by the defendant on 13th April 1916 to recover rent in respect of his four-annas share of rent, and not eight annas to which be would have been entitled had the furdbuiwara been given effect to. Exhibit 12 is a similar suit filed by the defendant on 11th April 1917 for recovery of his 4-annas share of rent up to March 1917. The plaintiff was added as a party defendant to these suits on the allegation that he was entitled to 4 annas interest in the village. These documents are, in my opinion inconsistent with the case set up by the defendant, namely, that the parties acted on the furdbutwara and took possession in accordance therewith.
10. I now come to Punchier, the property allotted to the plaintiff. This property was purchased by the family in the name of one Manna Lal Jha, After the decree in the partition suit, the result of which was to give each of the parties 8 annas share in the village, the defendant set up the heirs of Manna Lall to claim this village as their own. The heirs of Manna Lal filed a suit for rent which was resisted by the tenant on the ground that they were not the proprietors of the village at all. In the Appellate Court, the heirs of Manna Lal sumeeded in getting a decree for rent. Thereupon, Deb Lal Jha, the plaintiff in this action, filed a title suit against the heirs of Minna Lal and brought the defendant on the record as defendant No. 5. A compromise decree was passed in this action on 2nd February 1915, that is to say, nearly a month after the date of the furdbutwara. By this decree the title of the plaintiff to eight annas share of the village was declared, the defendant being declared entitled to the remaining 8 annas share of the village It is impossible to think that the plaintiff would have consented to this decree if the furdbutwara, which gave him 16 annas interest in the village, was intended to be acted upon.
11. The last item of property which I have to consider in this connection is Dhusar Tika Patti, which was allotted to the plaintiff. Portion of the village was leased out to a darpatmdar and portion was held Khas by the family. So far as the darpatni interest is concerned, the documents establish conclusively that, inspite of the furabutware the parties continued to be in possession according to their shares as determined by the partition decree. It is necessary to remember that, in this village, the family bad 8-annas interest, so that by the partition decree the plaintiff and the defendant were each entitled to collect his 4-annas share o! the rent By the furdbutwara the plaintiff became entitled to collect his 8-annas share of the rent, but the documents show that the furdbutwara made no difference to the rights of the parties. Exhibits 4 (7), 4 (8), 4 (9), 4 (10), 4 (11), 4 (12) and 4 (13) show realization of 4-annas share of the rent by the plaintiff up to 1917. There are similar rent receipts showing realization of 4-annas share of rent by the defendant. This is absolutely inconsistent with the whole interest of the family in the village having been allotted to the plaintiff.
12. With regard to that portion of the village which was held khas by the family, the rent receipts produced in the case show that the plaintiff collected the entire rent due to the family after the furdburwara. This is in favour of the plaintiff, but, in favour of the defendant, this may be Said that all these rent receipts were granted by the patwari who was the common patwari of both the parties, whereas the receipts granted in respect of the darpatni were all granted by the parties themselves. 1 will assume, however, that the plaintiff took possession of the entire village Dhusartika Patti held khas by the family, but this, in my view, does not affect the question. It is the defend ant who is relying on the doctrine of part performance, and the defendant must, therefore, show such acts on his part as are unequivocally and in their own nature referable to the agreement alleged. The evidence, in my judgment, does not establish such actings on the part of the plaintiff, and I must accordingly hold that the furdbutwira, not being a registered document, cannot be relied upon by the defendant as giving him title over the plaintiff's 8-annas share of the properties in dispute, namely Mataapa and Banaily.
13. Apart from the properties dealt with by Bheknath Misser, there are disputes between the parties with raferene to some other properties. Bat Mr. Rajendra Prosad, on behalf of the appellant, has confined his arguments to one of them, namely, a plot of land comprising an area of 9B. IK. 4Dh. in Khata No. 97. The appellant relies upon a Kebala, Exhibit 8, but the learned Subordinate Judge has rejected the appellant's claim on the ground that the identity of the property, the subject-matter of Exhibit 8, has not been established. I am wholly unable to agree with the learned Subordinate Judge, and Mr. Manuk, on behalf of the respondent, concedes that the finding of the Subordinate Judge is not correct, but ha argues that Exhibit 8 has not been legally proved. Mr. Manuk frankly stated before us that his objection was a purely technical one. His argument was that the certified copy of the document was not admissible in evidence. The plaintiff's case on this point is that the original document is with the defendant, but Mr. Manuk shows that the 9th clause of the original partition deed (Exhibit 3) provided that all documents of title of the properties dealt with by that deed shall remain in the custody of the plaintiff. Mr. Manuk'a argument is that the original of Exhibit 8 must accordingly be with the plaintiff, To this technical argument, there, is, however, a technical answer; and it is this, that the property, the subject-matter of Exhibit 8, was not included in the previous partition, and the document of title would not, therefore, be with the plaintiff by virtue of Exhibit 8. In my view the document was properly admitted in evidence, and the identity being established, the plaintiff is entitled to recover his 8 annas share of this property.
14. There only remains the question of mesne profits. As between co owners, the question of mesne profits does not arise, but the defendant must account to the plaintiff for his share of the profits from the date of dispossession alleged. in the plaint, Mr. Manuk urged before us that the story of dispossession as alleged in the plaint is an impossible one and ought not to be accepted. But if we disbelieve the story of the defendant, as we do, that ha got possession of the properties in dispute by virtue of the furdbutieara, there is no reason why we should not accept the plaintiff's case on this point. He was undoutedly dispossessed. He was not dispossessed by virtue of the furdbutwdra. He says that the plaintiff with the assistance of the Srinagar Raj dispossessed him in Baisak 1322 Mulki corresponding with May 1914. There is no reason to discredit this evidence, especially as there were undoubtedly disputes between the plaintiff and the Srinagar Raj.
15. In the result, then, we allow this appeal and set aside the judgment and decree of the Court below. The plaintiff is entitled to recover possession of Mouzahs Jaingunj Matoopa and Kemat Banailly and 9B. IK. 4Dh. of land comprised in khata No. 97 to the extent of eight-annas share in each of them. The defendant must also account to the plaintiff for his share of the profits from Baisakh 1322 Mulki up to the time he delivers up quiet and peaceful possession of their properties to the plaintiff. The plaintiff is entitled to the Costs in both the Courts.