SHEOMURAT RAM Vs. SAVITRI

JUDGEMENT

(1.) THIS is the defendant's second appeal. He has substantially lost in the courts below. The brief facts are these: One Madho Halwai executed a sale deed in favour of Sheomurat Ram, the defendant-appellant, on 26th August, 1958 for Rs. 4,000/-. On the same day Sheomurat Ram executed a deed of agreement in favour of Madho Halwai promising to reconvey the said property to the latter if the sum of Rs. 4,000/- was paid within five years. The vendor, Madho Halwai, died on 27th November, 1958. His son, Purshottam, had predeceased him leaving sons and one daughter, Smt. Savitri Devi, Smt. Savitri Devi instituted the suit from which the instant appeal has arisen against Sheomurat Ram who was impleaded as defendant no. 1. She impleaded her brothers and nephews and nieces as pro forma defendants alleging that they were not in a position to deposit the sum of Rs. 4,000/- and, therefore, they had agreed that she might deposit the amount and get back the property from the vendee in accordance with the aforesaid deed of agreement which was executed on the same day as the sale deed. She offered to deposit the sum and prayed that the defendant no. 1, Sheomurat Ram, be asked to execute a sale deed in her favour alone or in her favour and in favour of any pro forma defendants who might desire the sale deed to be executed in their favour. Sheomurat Ram, defendant no. 1 alone contested the suit. The other defendants did not contest the same. The contesting defendants pleas were that on the death of Madho Halwai the cause of action based on the agreement to reconvey the property came to an end as it was in the nature of a personal right in his favour. In other words, it was contended that the legal representatives of Madho Halwai could not claim any right on the basis of the aforesaid agreement to reconvey the property in his favour. It was next pleaded that the promise to reconvey the property was without consideration and, therefore, could not be enforced. The further plea was that the plaintiff alone could not get back the property which belonged to her and the defendants 2 to 10. It was also claimed that the contesting defendant had spent a sum of Rs. 2,000/- on the repairs of the property and that he had been paying house tax in respect of the same. The contesting defendant claimed to be entitled to the said amounts also. Certain other pleas were also taken but it is not necessary to notice the same as they were not canvassed in the instant appeal.

(2.) THE trial court framed the necessary issues and decreed the suit with costs against the contesting defendant no. 1 who was directed to execute a deed of reconveyance on payment of Rs. 4,000/- by the plaintiff. One month's time was given for this purpose failing which it was ordered that the plaintiff could get the sale deed executed through the court. Sheomurat Ram appealed to the lower appellate court and the appeal was partly allowed. THE decree of the trial court was modified to the extent that the costs throughout were made easy. Sheomurat Ram has now come in the instant second appeal and in support thereof I have heard his learned counsel, Shri Shambhu Prasad. In opposition, Shri Siddheswari Prasad had made his submissions. Counsel for the appellant relied on S.23 (b) of the old Specific Relief Act of which the counter-part is S.15 (b) of the new Specific Relief Act. He also placed reliance on (1) Smt. Katip Bibi v. Fakir Chandra, (AIR 1960 Cal 187), (2) Mohd. Yamin v. Abdul Majid (AIR 1962 All 476) and (3) Amina Bibi v. Abdul Kader Saheb ((1902) ILR 25 Mad 26). It was next contended that the courts below were wrong in holding that on the basis of the alleged agreement amongst the legal representatives of the deceased, Madho Halwai, the plaintiff alone was entitled to sue for the reconveyance of the property. It was contended that the alleged agreement amounted to a relinquishment of rights in immoveable property valued at more than Rs. 100/- and that could be brought about only by a registered document. In the instant case there was no document at all and, therefore, in law there could be no relinquishment of their rights by the other legal representatives of Madho Halwai in favour of the plaintiff. Reference was made to S.54 of the Transfer of Property Act in support of the aforesaid contention. Lastly, counsel also claimed that in the instant case S.62 of the Contract Act was applicable. Learned counsel for the plaintiff-respondent. Shri Siddheshwari Prasad, replied that S.62 of the Contract Act was not applicable. THEre was no alteration or novation of the original contract which remained unaltered. THE cause of action instead of vesting in all the legal representatives of the deceased, Madho Halwai, came to vest in the plaintiff alone as a result of the agreement amongst themselves. Counsel referred to the pleadings of the parties to submit that the contentions which Shri Shambhu Prasad raised did not find place in the pleadings. Referring to AIR 1960 Cal 187 counsel contended that it was distinguishable on its own facts and, in any case, did not lay down good law. In this connection he invited attention to, AIR 1962 All 476 was distinguished on the ground that in the said case the plaintiff had sued for the specific performance of her share. It was next contended that the learned counsel for the appellant had not correctly interpreted (1902) ILR 25 Mad 26, Shri Sidheswari Prasad placed reliance on (1) Jagdeo Singh v. Bisambhar (AIR 1937 Nag 186); (2) Radhabai v. Parwatibai, AIR 1970 Bom 275, (3) Abdul Shaker Sahib v. Abdul Rahiman Sahib (AIR 1923 Mad 284), (4) Umar Noor v. Dayal Saran (AIR 1967 All 253) (5) Ram Saran v. Ram Mohit (AIR 1967 SC 744) and (6) Monghibai v. Cooverji Umersey (AIR 1939 PC 170), (1897) ILR 24 Cal 832 was also referred to. It was contended that there was no contract to the contrary under S.15 (b) of the new Specific Relief Act which would apply to the facts of the case. Section 40 of the Contract Act was referred to. It was next contended that in view of the statement under O. 10, R. 1 C.P.C. made by Sheomurat Ram, it was not open to him to contend that the agreement was personally in favour of the deceased, Madho Halwai. I think the courts below have rightly held that the right which the vendor, Madho Halwai, was entitled to on the basis of the agreement to reconvey the property (Ex. 2) was not merely a personal right but was heritable and transferable. It is well known that ordinarily the benefits and obligations under a contract are claimable by and enforceable against not only the parties to the contract but also by or against the representatives of such parties in case of their death. Of course, there can be an intention to the contrary in the contract itself or the same can be inferred from the nature of the contract. Section 37 of the Contract Act lays down as under : "THE parties to a contract must either perform, or offer to perform their respective promises, unless such performance is dispensed with or excused under the provisions of this Act, or of any other law. Promises bind the representatives of the promisors in case of the death of such of promisors before performance, unless a contrary intention appears from the contract."

(3.) THE question however, still, remains whether the plaintiff alone could sue the defendant on the basis of the agreement to reconvey, when she was only one of the several legal representatives of the deceased, Madho Halwai. AIR 1960 Cal 187 is a single Judge pronouncement of the said Court and in my opinion, with respect, does not lay down the correct law. THE head note of the case is as follows : "One or more of the several heirs of the original promisee, a single individual, could not by himself or themselves institute a suit for specific performance of the contract of reconveyance by making the remaining heirs as parties defendants to the suit. On the death of the original promisee, his heirs do not become themselves several joint promisees." THE learned single Judge sought to distinguish AIR 1939 PC 170 and AIR 1937 Nag 186 on the ground that in those cases there were several joint promisees from the very inception of the contract but in the case which was decided by the learned Single Judge, at the inception there was only one promisee and on his death before the institution of the suit, he left several legal representatives to survive. Even if there be some distinction in the legal incidents which attach to the two situations, I cannot see how it can be held that while in the case of joint promises at the inception of the contract it is possible to implead some as defendants (i. e. those who refuse to join as co-plaintiffs), in the case of a contract where the promisee is one and on his death the suit is filed by some of his legal representatives, it is not possible to implead the remaining legal representatives as defendants (in case the latter refuse to join as co-plaintiffs). In my opinion, there seems to be no rationality in this approach and there is a failure to appreciate that what is material is that all the parties should be before the court so that it may be in a position to grant the necessary relief. It is not necessary that the parties should be arrayed on the side of the plaintiff. Some of them can be put in the array of the defendants if they refuse to join as co-plaintiffs. If this were not the correct legal position it would be open to one or the other of several legal representatives to defeat the claims of the remaining legal representatives to seek relief against the promisor. This aspect of the matter has been clearly emphasised in AIR 1939 PC 170 where it was observed : "Once all the parties are before the court, the court can make appropriate order and should give judgment in favour of all the persons interested whether they should be joined as plaintiffs or defendants." In the Privy Council case the observation which was made related to several persons jointly interested. In fact, the relevant passage has been extracted in the judgment of the learned single Judge of the Calcutta High Court. It is as follows : "It has long been recognized that one or more of several persons jointly interested can bring an action in respect of joint property, and if their right to sue is challenged can amend by joining their co-contractors as plaintiffs, if they will consent, or as co-defendants if they will not." Joint interest can arise in various circumstances. For example, there can be joint promisees at the inception of the contract; joint interest can also arise on account of the death of a sole promisee who leaves behind several legal representatives to survive him and they can be described as jointly interested in the claim to which their predecessor-in-interest as the sole promisee was entitled to. In my view, therefore, the kind of distinction which Justice Banerji sought to draw in the aforesaid Calcutta case with a view to distinguish the cases cited before him is not valid. THE learned Judge sought to draw support from (1902) ILR 25 Mad, 26 and certain observations of Bhashyam Ayyangar, J. made in the said case, were pressed into service. THE nature of the controversy in the Madras case would be clear from the head note itself which is reproduced below : "In 1885, five persons commenced to carry on business in partnership. In 1890, P (one of them) died. No accounts were taken, nor were the heirs of P introduced as partners into the partnership. THE four surviving partners continued to carry on the business. In 1891, C (one of them) died. No accounts were taken, nor were the heirs of C introduced as partners into the partnership. THE three surviving partners continued to carry on the business. In 1898, the legal representatives of C instituted this suit against the surviving partners and the representatives of the deceased partners for an account and for a share of the profits of the partnership which was formed in 1890, on the death of P, and dissolved in 1891, on the death of C. THE third plaintiff was a minor at the date of C's death, and was still in her minority at the date of suit. On its being contended that the suit was barred by limitation : Held that the starting point of computing the period of limitation was the date of C's death. THE present suit could not be regarded 'within the meaning of Art.106 of schedule II to the Limitation Act' as a suit in part for an account and a share of the profits of the original partnership. When a partnership is determined by death and the surviving partners continue to carry on the business the Limitation Act is no bar to taking the accounts of the new partnership by going into the accounts of the old partnership which have been carried on into the new partnership without interruption or settlement. Held also, that though the new partnership was dissolved by the death of C in 1891 and the suit would be barred, prima facie, by Art.l06 of Schedule II to the Limitation Act, the bar was saved by Ss.7 and 8 of that Act, in as much as the third plaintiff was and still continued a minor. THE effect of S.8 was to save the bar in the case of all the plaintiffs, as they were joint claimants with the third plaintiff and none of them could give or could at any time have given the partners of C a discharge from liability to C's representatives without the concurrence of the third plaintiff." Unfortunately, the passage which has been extracted from the Madras judgment in the aforesaid Calcutta case stops short of reproducing the very next sentence in the Madras judgment which would have revealed to the learned Judge of the Calcutta Court that he was not correctly interpreting the Madras decision. THE said sentence of the Madras decision which was not reproduced in the Calcutta case is as follows.- "If one or more of joint claimants do not join as plaintiffs, the course to be pursued in India, according to long established course of decisions, is for the claimants bringing the suit to join, as party defendants, those who do not join as plaintiffs." In the Madras case itself some of the legal representatives of the deceased predecessor-in-interest had not joined as plaintiffs but had been put in the array of the defendants. Such defendants were nos. 12 to 18. This is clear from the following sentences of the judgment delivered by Bhashyam Ayyangar, J. "THE plaintiffs and defendants Nos. 12 to 18 are the legal representatives of the deceased Chanda Mean Saheb, including the legal representatives of a deceased heir of Chanda Mean............If, as in this case, some of the representatives are unwilling to sue they may be joined as defendants so that all may be bound by the decree and save the debtors from the liability to a series of action on the same cause of action." I should like to emphasise here that though it is true that in the reported cases the emphasis is that in such a situation in case of refusal to join as co-plaintiffs, the parties concerned may be impleaded as co- defendants, still, it should not be construed that it is only in case of positive evidence to substantiate such refusal that the plaintiff's suit should be held to be maintainable otherwise it should be thrown out. I can conceive of various circumstances where even though some of the parties might not have refused to join as co-plaintiffs still due to their absence from the spot or due to other reasons they may not be in a position to join as co-plaintiff and, therefore, have to be arrayed as co-defendants. Under O. 1, R. 10 C.P.C., the court can always transpose the parties. Those who are in the array of the defendants can be transposed to be co-plaintiffs and similarly some of the co-plaintiffs can be put in the array of the defendants. THErefore, I do not think that it is necessary that the court should very strictly insist on evidence being produced to substantiate that those who have been joined as co-defendants had categorically refused to join as co-plaintiffs. This aspect is being emphasised because Mr. Justice Banerji in the Calcutta case made a point that there was nothing before him "to show that the other heirs of Rostam Ali who were made party defendants, at all refused to join with the plaintiff in her suit." In my view, therefore, the learned counsel's contention based on AIR 1960 Cal 187 is not tenable. THE view of the Calcutta Court is directly opposed to the law laid down in (1902) ILR 25 Mad 26, AIR 1937 Nag 186, AIR 1923 Mad 284 and AIR 1939 P.C. 170. THE suit cannot be held to be bad on the ground that all the legal representatives of the deceased, Madho Halwai, did not join as co-plaintiffs. It has not been disputed before me that all the legal representatives of the said deceased were arrayed in the suit whether as plaintiffs or as defendants and this was sufficient in law. Section 15 (b) of the new Specific Relief Act corresponding to S.23 (b) of the old Act does not lay down that all the legal representatives must sue as plaintiffs. In fact, the said provision has no bearing on the question of the frame of the suit.