Patna High Court
Musammat Ramjhari Kuer And Anr. vs Gokhul Singh And Ors. on 14 August, 1929
Equivalent citations: 123IND. CAS.408, AIR 1930 PATNA 61
JUDGMENT Chatterji, J.
1. This appeal arises out of a suit for ejectment. The plaintiffs' case is that the land in dispute measuring 1 bigha 11 cottas and odd was given by the plaintiffs (who are the proprietors of the village where the disputed land is situated) to one Nand Prasad, the deceased father in-law of defendant No. 1 who used to practice as a mukhtear at Sewan, as Jageer Khidmati in lieu of work in connexion with the plaintiffs' cases in the Civil and Criminal Courts at that station. The said mukhtear having died, the plaintiffs claim that they are entitled to resume possession. It is alleged that the land was recorded as Jageer Khidmati land in the Cadastral Survey but wrongly recorded in the revisional survey in the names of defendants Nos. 1 and 2 as their kasht land.
2. The defendants pleaded that the land in dispute was not their service tenure but was their ancestral kasht land. Both the Courts concurrently held that the entry in the revisional survey was wrong and that the disputed land was the service tenure of Nand Prasad mukhtear. The Munsif, however, dismissed the suit on the ground that it had been brought more than twelve years after the death of Nand Prasad; while the Subordinate Judge in appeal found that Nand Prasad died in May, 1916, that is nine years, and not twelve years, prior to the institution of the suit and in that view decreed the claim.
3. It is urged by the learned Advocate for defendants Nos. 1 and 2 who are the appellants before us that the alleged agreement between the plaintiffs and the mukhtear is in contravention of Section 28, Legal Practitioners Act, and as such is not valid in law and cannot be given effect to. In reply it is contended on behalf of the plaintiffs respondents that the equitable doctrine of part performance would enable evidence to be given as to the nature and terms of the agreement.
4. Section 28, Legal Practitioners Act (XVIII of 1879), runs as follows:
No agreement entered into by any Pleader, mukhtear or revenue agent with any person retaining or employing him, respecting the amount and manner of payment for the whole or any part of any past or future services, fees, charges or disbursements in respect of business done or to be done, by such Pleader, mukhtear or revenue-agent shall be valid unless it is made in writing signed by such person, and is within fifteen days from the day on which it is executed, filed in the District Court or in some Court in which some portion of the business in respect of which it has been executed has been or is to be done.
5. This section has been repealed by Act XXI of 1926, that is, long after the alleged agreement between the mukhtear and the client and even after the institution of the present suit. It is settled law that the legislative enactments have no retrospective effect unless expressly stated to be so in the enactments themselves. Then it has been held in Kamakhya Narayan Singh v. Kalyan Singh 101 Ind. Cas. 559 : 6 Pat. 614 : 8 P.L.T. 175 : A.I.R. 1927 Pat. 178, that the corresponding provisions of the repealing Act XXI of 1926 have no retrospective effect and do not govern agreements entered into before its operation. This case further lays down that the provisions of Section 28, Legal Practitioners Act (XVIII of 1879) are very wide and comprehensive and all agreements between a legal practitioner and his client in respect of fees or remuneration, whether in connexion with cases pending in Court or cases not pending in Court come within the mischief of Section 28. This section provides that no agreement shall be valid unless it is reduced in writing signed by the legal practitioner and also filed in Court. If the document be reduced to writing but is all the same clothed imperfectly in legal forms in that it was not filed in Court then the equitable doctrine of part performance may be called in aid to supply the defects of forms. Where there can be no valid contract unless it is reduced into writing, I do not think that the doctrine of part performance will be of any help. It has been held by their Lordships of the Allahabad High Court in a Full Bench case of Ram Gopal v. Tulshi Ram 116 Ind. Cas. 861 : A.I.R. 1928 All. 641 : 26 A.L.J. 952 : 51 A. 79 : Ind. Rul. (1929) All. 653, that the rule of equity can never be put forward to annul a positive enactment, and so the doctrine of part performance cannot override the provisions, of the Legal Practitioners Act. The same view, appears to have been taken by their Lordships of the Privy Council in John H. Arseculeratne v. Perera 111 Ind. Cas. 351 : A.I.R. 1928 P.C. 273 : (1929) M.W.N. 1 (P.C.).
6. Under the law prevailing in Ceylon no instrument affecting land can be effected except in writing signed and attested by a notary and two witnesses and it is also provided that no agreement of partnership ''shall be in force or avail in law" unless it is in writing and signed. In a suit for dissolution of partnership the question arose how far the question of part performance was available to the plaintiffs having regard to the fact that the deed of partnership was unattested. Their Lordships held that the defect in the agreement was not cured by the equitable doctrine of part performance and was ineffective to pass any interest in the land. Where writing is necessary for the purpose of proving a contract the defect of its absence may be cured if that contract has been acted upon provided the validity of the contract itself did not depend on the writing. Now in the present case the validity of an agreement between legal practitioner and the client depends entirely on the writing. In the face of this stringent provision of law I am unable to see how the doctrine of part performance can have any application. A reference to the leading case of Maddison v. Alderson (1883) 8 A.C. 467 at p. 473 : 52 L.J.Q.B. 737 : 49 L.T. 303 : 31 W.R. 820 : 47 J.P. 821 will make the position clear. In that case it was held as explained by Mukherji, J., in Ariff v. Jadu Nath Majumdar 112 Ind. Cas. 865 : A.I.R. 1929 Cal. 101 : 55 C. 1090 : Ind. Rul. (1929) Cal. 47 : 33 C.W.N. 333, that where there was a parol contract not provable by reason of Section 4 of the Statute of Frauds, which, however, did not avoid a parol contract but only barred the legal remedies which might otherwise have been enforced, if there had been such performance of it by some acts unequivocally referable to or indicative of the contract, a Court of Equity would charge a party upon the equities resulting from the acts in execution of the contract. As stated by Lord Selborne, L. C., in that case, the contract is not a nullity but here under the Statute an agreement, if not reduced into writing is not valid at all, that is, is a mere nullity. The position would have been different if the validity of the agreement did not depend on the writing; but there was merely a defect in clothing the transaction with perfect legal forms. In such a case the doctrine of performance would certainly come into play.
7. Further, it is settled law that if there be a part performance by the party seeking relief proof Will be admitted of the "verbal contract in cases where an action for specific performance would lie: see Nand Lal v. Dhanukdhari 76 Ind. Cas. 42 : A.I.R. 1924 Pat. 244 : 4 P.L.T. 657 : 2 Pat.L.R. 37. If, therefore, an action for specific performance becomes time-barred a plaintiff will be disentitled to seek his remedy on the doctrine of part performance. The case might have been different if a party sought to defend his position as a defendant. Now a suit for the specific performance of the contract is clearly time-barred (as more than three years have elapsed from the date of the death of the mukhtear), under Article 113, Limitation Act, and, therefore, the plaintiffs are not entitled to come and plead that they ought to be allowed relief in ejectment on the doctrince of part performance.
8. Lastly, an essential condition for the application of the doctrine of part performance is that there are such actings of the parties as must be unequivocal and in their own nature referable to the agreement alleged: Deb Lal v. Baldeo 56 Ind. Cas. 277 : 1 P.L.T. 354 : 2 U.P.L.R. (Pat.) 100 : (1920) Pat. 337. Now there is no specific allegation in the plaint that the agreement was that the mukhtear would leave possession when he would not be able to render services or when he would die. Therefore, it cannot be said that the possession allowed to the mukhtear was referable to the agreement that the possession would cease with the non-performance of the services. In any view, therefore, it seems to me that the doctrince of part performance cannot be successfully invoked by the plaintiffs in the present case in order to succeed in this suit for ejectment.
9. It must be distinctly understood that we do not hold that the defendants have succeeded in proving that they are entitled to hold the land at the annual jama attested in the revisional Record of Rights. This record has been found by the final Court of fact to be wrong. We do not interfere with that finding. What the proper rent will be must be the subject-matter of a separate proceeding for assessment of rent, at the option of the plaintiffs.
10. The appeal succeeds on the question of law and the suit must be dismissed. In view of the fact that this point has been taken for the first time in this Court (this has been allowed to be raised, because it is a pure question of law). Each party shall bear its own costs throughout.
Fazl Ali, J.
11. I agree.