Patna High Court
The Official Trustee Of Bengal And As ... vs Charles Joseph Smith And Krishna ... on 15 April, 1920
Equivalent citations: 56IND. CAS.262, AIR 1920 PATNA 77
JUDGMENT Dawson Miller, C.J.
1. This is an appeal from a decision of the Additional Subordinate Judge of Manbhurr, dated the 14th September 1917. The appellant, who is the defendant No. 4 in the suit, is the Official Trustee of Bengal and represents the estate of the late Mr. Joseph Chater. None of the other parties have appealed, but cross-objections have been filed by the defendant No, 1 not against the appellant but against his co respondent, the plaintiff. A preliminary objection was taken by the plaintiff to this cross-objection which will be dealt with later. The plaintiff Charles Joseph Smith is the proprietor of certain mining rights in Mauza Kusunda which he acquired by purchase from the Raja of Jharia on the 24th April 1S07. The defendant No. 1 acquired a usufructuary mortgage of the mining rights from the plaintiff in consideration of a loan of Rs. 47,500 and was put in possession of the rents and royalties payable by the tenants by way of satisfying the loan and interest. The defendants Nos. 2 and 3 were added as defendants on the ground that they are interested in the mortgage, but they disclaimed all interest therein. The defendant No. 4 an Trustee of the estate of the late Mr. Chater and the defendants Nos. 5 to 10, who tray be referred to as the Boy defendants, are tenants of the mining rights and as such liable to pay rent and royalty to the proprietor. The suit as against the defendants Nos. 4 to 10 claimed a declaration that those defendants were bound to pay the plaintiff rent and royalty under the terms of an agreement of compromise made in a (nit brought by the Raja of Jharia against them, the Raja's proprietary, interest having been subsequently acquired by the plaintiff, and for an account of the coal raised and despatched. As against the mortgagee-defendants the plaintiff's cause of action was of en entirely different nature. He claimed a declaration that the mortgage had been satisfied by collection by the mortgagees of the rent and royalty payable by the other defendants and for an account of the monies collected and delivery of possession of the mortgaged property.
2. In order to appreciate the nature of the defence to the suit upon which the appellant relies, it is necessary to state shortly the circumstances leading up to the present litigation. The Raja of Jharia was the proprietor of a 7 annas share in Mauza Kusunda, the remaining 9 annas belonging to the Zemindar of Katras. The entire village, wad in the possession of one Kenaram Sarkar as tenure holder or Mahatradar, Sometime before the year 1894 Kenaram Sarkar granted a lease of the mining rights in the entire Mauza less an area of 100 bighas to Ashutosh Roy, the defendant No. 5, and his brother Gadhadar Boy deceased, the father of the other Roy defendants, at an annual rental of Rs 1,554 9 6, The lessees in turn in the year 18 4 granted a sub-lease of the same less 150 bighas to Mr. Chafer, who was to pay them a royalty of 4 annas 6 pies per ton on all coal raised and despatchad as well as all coke manufactured. In 1895 Mr. Chater, by a registered instrument dated the 16th January that year, transferred a moiety of his rights under his sub lease to the plaintiff. It is agreed that the deed of transfer impliedly covenanted for title and quiet enjoyment and that he was bound by the provisions of Section 55 of the Transfer of Property Act. The plaintiff and Mr. Chater thereupon worked the mine in partnership. Three years later in 1898 they together purchased the mining rights in another Mauza sailed Bagdighi, which also formed part of the partnership assets to which they were entitled in equal shares. On the 7th March 1899 Mr. Chater died intestate leaving a wife and three daughters. One of his daughters and Mr. Aratoon Gregory Apcar were granted Letters of Administration to his estate. A partition agreement as to the partnership assets was then entered into between the plaintiff and his late partner's administrators, whereby they agreed that in lieu of their respective undivided moieties in each of the two mining leases the plaintiff should take Bagdighi and Chater's estate should take Kusunda, the agreement to take effect from the 1st January 1900. No formal release appears to have been made by either party to the other and in 1902 a Suit No. 90 of 1902 was instituted by Chater's administrators against the plaintiff, in which by a com-promise between the parties a decree was entered on the 29th April 1903 providing, inter alia, that the plaintiff should execute a registered deed of release in respect of Mauza Kusunda in favour of Chater's administrators. An indenture of release was consequently prepared by the administrators' Solicitor and executed by the plaintiff on the 17th December 1904, whereby the plaintiff transferred his undivided half share in the mining rights of Kusunda to the administrators of Chater's estate which the defendant No. 4 now represents. This document recites the grant to Chater by the Roys of the mining rights under a patta of the 16th June 1894 and the transfer of a moiety therein to the plaintiff on the 16th January 1895 and states that for purposes of carrying the said partition into effect the plaintiff " As to his undivided half part or share therein doth hereby grant, convey, transfer, assign, release and assure all mines, veins, seams and beds of coal and the mining and other rights comprised in or granted by the hereinbefore recited pattas," Mrs. Smith, the plaintiff's wife, also had some interest under two muharari leases, dated the 9th September 1894, in part of the same property and by the same instrument joined her husband in transferring her interest to Mr. Chater's administrators, but with her part in the transaction we are not concerned. The patta referred to so far as the plaintiff is concerned was the lease executed by the Roys in favour of Mr. Chater, dated the 16th June 1894, a moiety of which the latter had transferred to the plaintiff on the 16th January 1895. The deed also contained covenants by the plaintiff for title and quiet enjoyment and further assurance. Meantime the Raja of Jharia, having acquired under a mukarari lease from the Raja of Katras his 9 annas proprietary interest in Mouza Kusunda, had become the proprietor of the whole Mouza. On the 11th June 1906 he brought a Suit No. 66 of 1906 in the Court of the Subordinate Judge at Purulia against Kenaram Sarkar, Gadhadhar and Ashutosh Roy and the administrators of Chater's estate and others, claiming khas possession of the underground rights in Kusunda on the ground that Kenaram Sarkar, as tenure-holder, had not and never had any interest in the subsoil and that consequently the lease granted by him to Gadhadhar and Ashutosh Ray and the sub-lease granted by them to Chater passed no title. Although the Question has since been definitely determined against the tenure-holder by the decisions of the Judicial Committee, at that time owing to certain decisions in the Courts of this country it was at least doubtful whether the tenure-holder had any rights in the sub soil unless such rights were clearly expressed in his grant. In this state of affairs on the 2nd February 1907 a compromise agreement was entered into between the parties and the suit was subsequently decreed in the terms of the compromise. The decree provides that the lease granted by Kenaram to the Roys and the sub-lease granted by them to Chater shall remain, in force, except that the rent of Rs. 1,554 9-6 payable by the Boys to Kenaram shall in future be payable half to Kenaram and half to the Raja. The Roys also undertook to pay to the Raja a sum of Rs. 35,000 as well as a royalty of 4 1/2 pies per ton in respect to the coal raised on the 150 bighas reserved by them and not sublet to Chater. Chater'a administrators were to pay to the Raja a sum of Rs. 10,030 and an additional royalty of 6 pies per ton of steam coal and 2 annas on coke over and ' above that payable to the Roys under their sub-lease. Each party was to pay his own costs and the claim for mesne profits was withdrawn. After the compromise agreement had been come to, namely, on the 24th April 1907, the plaintiff by two registered instruments of that date acquired for consideration the 7 annas proprietary interest in the sub-soil rights of the Mouza from the Raja of Jharia fora term of 999 years and an assignment of the latter's darmukarari interest in the 9-annas share which he had acquired from the Zemindar of Katras. Mr. Smith thereupon became entitled as proprietor to the rent and royalty payable to the Raja by the Roys and Chater's administrators respectively under the compromise decree in Suit No. 66 of 1906. Although the compromise agreement was dated the 2nd February 1907, the decree was not in fact made until the 25th April that year. On the 28th March 1903 Mr. Smith granted a usufructuary mortgage of his interest in the sub-soil to the defendant No. 1 to secure re-payment of an advance of Rs. 47,500 and interest and put in possession the mortgagee, who collected the rent and royalty due under the decree from the Roys and Chater's administrators.
3. Before the present suit was instituted on the 18th September 1916, disputes appear to have arisen between the plaintiff and the mortgagees as to whether the loan advanced had been satisfied by the collection of rent and royalty, and the tenants were apparently refusing to pay the rent and royalty to the plaintiff. The suit was accordingly instituted on the date mentioned, claiming as against the mortgagees delivery of possession of the mortgaged property and a declaration that the mortgage-debt had been satisfied by collection of the aforesaid rents and royalties, The plaintiff further claimed an account of the sums realised by the mortgagees whilst in possession and payment to him of any balance shown by the account to have been received in excess of the mortgage-debt. As against Chater's administrators and the Roys he claimed a declaration that they were bound to pay him as the transferee of the Raja of Jharia the rent and royalty payable to the latter under the terms of the compromise decree in Suit No. 66 of 1906 and an account of the coal raised and despatched by them from the date of that decree to the date of suit.
4. The suit was contested on behalf of both sets of defendants. The defense of the Trustee of Chater's estate was, inter alia, that the plaintiff by the indenture of the 17th December 1904, by which he released his half share in the lease of Kusunda to Chater's administrators, covenanted for title and quiet enjoyment and that the present suit was a breach of the covenants therein contained. With the defence of the mortgagees we are not immediately concerned in this appeal, bat it may be stated that they denied that they had realised the full amount of the mortgage debt. Several defences were raised by the Roys, but these also are not material for present purposes as they have not appealed.
5. The learned Judge found that the mortgage of the defendant No, 1 had been satisfied by 1914 and that from that date the plaintiff was entitled to recover the commission and royalty claimed from the other defendant) in accordance with the decree in Suit No. 66 of 1906. From this decree the defendant No. 4 has appealed and contend?, as in the Court below, that the present suit is a breach of the covenants contained in the instrument of the 17th December 1904.
6. The interest which the plaintiff re transferred to Chater's estate under the indenture mentioned was an interest which he had acquired from Chater himself and which he released to the latter's administrators on the termination of the partnership in pursuance of the partition agreement. It is at first sight difficult to sea why the covenant for title should be enforced against the plaintiff, if in fast there is a breach, as Chater himself must have been guilty of a breach of a similar covenant admittedly contained by implication in the instrument by which he transferred half his interest in the lease to the plaintiff. It is contended, however, that the instrument of the 17th December contained something more than the usual vendor's covenants for title and quiet enjoyment implied by law and that in fast covenanted against the acts not only of the covenantor and those claiming through him but against disturbance by any one possessing a paramount title. The plaintiff therein covenants that the lease of the 16th June 1894 is still subsisting in law and is not rendered void or voidable and also notwithstanding any act, deed, etc, of the covenantor he has good right to grant, convey, transfer, a? sure, release and assign the said premises. It also provides that the grantees shall quietly enjoy the same without interruption, etc., by the covenantor or any one lawfully claiming through him and free from all estates title, charges, etc., made, executed, occasioned or suffered by the said Charles J. Smith or any person claiming through or in trust for him. In my opinion it is not necessary to decide with precision what the exact legal effect of this document may be so far as the covenant for title is concerned, as it does not seem to me to impose any wider obligation than that contained in Section 55 (2) of the Transfer of Property Act which must be deemed to be incorporated in the transfer by' Chater to Smith, and the former cannot rely upon a representation as to title which must have been induced by his own act in warranting the same title to Smith when he transferred his interest to the latter. Moreover, the present suit is based upon a title created by the com-promise to which the administrators of Chater's estate were themselves parties, and it is not suggested that the decree was obtained by fraud. As long as it subsists, it is binding upon the parties. The plaintiff has acquired the Raja of Jharia's rights therein and is entitled to stand in his shoes. Had the Raja of Jharia remained in possession, the appellant would have had no defence to the suit brought by him for the royalties due and his assignee must prima facie be entitled to the same rights. Some reliance was placed by the appellant on Section 45 of the Transfer of Property Act, bat I think the proper view of the instrument of the 17th December 1904 is that the plaintiff merely released to Chater's estate the right, title and interest, which he had previously acquired from Mr. Chater during his lifetime, and it is not open to the latter or his administrators to complain that there is a defect in the title which Mr. Chater himself represented to the plaintiff as subsisting and that he had power to transfer the same. If this view is right, it can make no difference that the plaintiff paid the Raja of Jharia the costs of the Suit No. 66 of 1906 and at or about the time of the compromise agreed to purchase his proprietary interest in the estate. In my opinion the decree of the lower Court should be affirmed.
7. There is a further matter which requires to be dealt with. The appeal was brought by the defendant No. 4 alone against the decree in so far as it affected his liability towards the plaintiff only. The plaintiff was the real respondent in the appeal, although the defendants other than the appellant were formally added as respondents and served with notice. The defendant No. 1 alone of the respondents other than the plaintiff has appeared. He as mortgagee was affected by the decree in so far as it declared that his mortgage debt had been satisfied and that the plaintiff was to recover possession of the mortgaged property. He, however, did not appeal from this decision and allowed the time for doing go to elapse without taking any step to prosecute an appeal. On being served with notice of the appellant's appeal he filed notice of a cross-objection not on any point which affected the appellant to whose appeal he was not ft necessary party but against the decree in so far as it determined the rights between himself and the plaintiff, one of the other respondents. The question is whether in the circumstances he is entitled to do so under the provisions of Order XLI, rule 22, of the Civil Procedure Code. In my opinion he is not. The appellant has no objection to the decree in so far as it affects the defendant No. 1 (respondent No. 2) and the word '' cross-objection " in Order XLI, rule 22, appears to me inapplicable to a case like the present, As Sir George Jessel, M.R., pointed oat in In Re: Cavander's Trusts (1881) 16 Ch. D. 270 : 50 L.J.Ch. 292 : 29 W.R. 405 an appeal on a point which does not affect the original appellant cannot be a cross appeal and a party who desires to put forward a case with which the appellant has nothing to do must serve notice of appeal in the prescribed manner. Where one of several defendants against whom a decree is passed has allowed the period for appealing to elapse, there seems to me no good ground for supposing that the rule intended to revive his right simply because a so defendant has instituted an appeal against the plaintiff on entirely different grounds. If the grounds of the original appeal by one defendant are common to all, then the Court has power under Order XLI, rule 4, to vary or reverse the decree in favour of all and a party who has not appealed may in such a case reap the benefit. There may also be oases where the appeal indirectly re-opens the question of the rights of the respondents inter se and it may in such cases be necessary, in the interests of justice, to determine such questions, but beyond these limits I can see no reason why respondents should ordinarily be permitted to re open questions already determined as between themselves, and acquiesced in without appeal, simply because some other party has preferred an appeal upon a point in which they are not directly interested. In my opinion Order XLI, rule 22 (l), in so far as it relates to a cross-objection, was provided to meet the case where a respondent, although the decree is not entirely in his favour, is content to let matters rest provided his opponent does not appeal, but who may not be willing to run the risk of having the findings in his favour varied or reversed without an opportunity of appealing against the findings which are adverse to him. He does not wish to set the Appellate Court in motion, but he cannot be certain until the last moment that his opponent will not do so. His object in accepting the lower Court's decision is one which should not be discouraged, as it puts an end to further 'litigation and it is just that he should not suffer by it. It is right that he should be allowed some extension of time for prosecuting his cross-appeal, if his opponent at the last moment defeats the object for which he delayed. In my opinion the rule should ordinarily be confined to oases of cross-objections urged against the appellant, but rule 33 of the same Order gives the Court a very wide discretion and oases may occasionally arise where justice requires that cross-objections against a co-respondent should be heard. An instance of this arose in the case of Mathura Mohan Saha v. Ramkumar Saha 35 Ind. Cas. 305 : 43 C. 790 : 23 C.L.J. 26 : 20 C.W.N. 370, but the Court there observed that the appeal re opened the whole matter in controversy and required them to re examine the questions in dispute from all possible points of view. In the case of Shib Chandra Kar v. A.C. Dulchen 48 Ind. Cas. 78 : 28 C.L.J. 123 decided by the same High Court about a month later, the Chief Justice and two other learned Judges affirmed and followed the principle laid down in Jodunandan Prosad Singha v. Koer Kallyan Singh 13 Ind. Cas. 653 : 15 C.L.J. 61 : 16 C.W.N. 612, to the effect that as a general rule the right of any respondent to urge a cross-objection should be limited to his urging it only against the appellant and it is only by way of exception to this general rule that one respondent may urge a cross objection as against another respondent. The exception, it is said, holds good in those oases where the appeal opens up questions which cannot be disposed of completely without matters being allowed to be opened up as between co-respondents. The exceptions in my opinion do not arise out of the construction of rule 22 of Order XLI, but are permissible only by reason of the powers given by rule 33 of the same Older. This rule, however, as pointed out by Mookerjee, J,, in Shib Chandra Kar v. A.C. Dulcken 48 Ind. Cas. 78 : 28 C.L.J. 123 (ubi sup.), should be cautiously applied and generally speaking in oases where but for recourse to it the ends of justice would be defeated and it should not be allowed to be invoked in favour of a litigant so as to enable him to avoid the provisions of other Statutes snob as (he Limitation Act or the Court Fees Act. In that case as recourse to the other provisions of the Code would have been sufficient for the' purposes of the respondent seeking to urge cross objections, she was not allowed to fall back upon Order XLI, rule 33. The Madras High Court, it is true, has taken a different view-rather, as it seems to me, upon grounds of expediency than upon any considered interpretation of the rules. In Munisami Madaly v. Abbu Reddy 27 Ind. Cas. 323 : 38 M. 705 : (1915) M.W.N. 45 : 27 M.L.J. 740 a Fall Bench of the Madras High Court decided that cross-objections could be urged in any case by one respondent against another under the provisions of Order XLI, rule 22, and refused to follow the decision of the Calcutta High Court in Jaaunandan Prosad Singh a v. Koer Kallyan Singh 13 Ind. Cas. 653 : 15 C.L.J. 61 : 16 C.W.N. 612, on the ground that it seemed more convenient to follow a fixed rule than to decide the question with reference to the particular facts of the case in which the question was raised. No reference was made in that decision to the effect of Order XLI, rule 33, or its bearing on (he earlier rule, but it appears to me that Rule 33 was expressly enacted for the purpose, inter alia, of providing for exceptional cases not covered by the wording of the earlier rule, and with great respect to those learned Judges I prefer to follow the decisions of the Calcutta High Court which are based upon a careful consideration of the rules themselves rather than upon grounds of expediency and convenience. The cross-objection should consequently be dismissed with costs to the plaintiff against whom it is directed. The appeal is also dismissed with costs to the plaintiff and the decree of the lower Court is affirmed.
Coutts, J.
8. I agree.