NIMALCHAND GULABSA Vs. MADANLAL JAGANNATH SHET

JUDGEMENT

(1.) THIS Letters Patent appeal is preferred against a judgment of Mr. Justice Shah and the few facts that are necessary to be stated are that two survey numbers, 21 and 71. belonged to one Buda Yanjari. Buda Vanjari mortgaged these two survey numbers to the defendants on June 4,1919. Plaintiffs purchased the equity of redemption of 8. No, 21 in 1923. Defendants filed a suit, being suit NO. 117 of 1826, to enforce their mortgage and they obtained a mortgage decree. In execution of tbeit decree they filed a darkhast in 1938, At that time the sum due to them under the decree was Rs. 6,181. An agreement was arrived at while that darkhast was pending on July 14, 1940, between the plaintiffs and the defendants. We will consider the particular terms of this agreement and the effect of it later. Pursuant to that agreement, possession of Section No. 21 was given to the defendants and the plaintiffs in their turn executed a rent-note in favour of the defendants agreeing to pay Rs. 105 as rent for one year. On January 25, 1943, in execution of the mortgage decree 3. no. 21 was put up to auction and purchased by the defendants for RS. 2,600. On the game day 20 acres of Section NO. 71 waa also put up to auction and sold for RS. 3, 681. We might mention bore that the extent of Section No. 71 was 23 acres, 39 gunthag, and only part of it was sold at this auction. By reason of these auctions the decree of the mortgagee was satisfied. On August 3, 1912, the defendants obtained possession of 8. no. 21 and the portion of Section no. 71 which they bad purchased through the Court. On July 1943, the plaintiffs filed the suit claiming half of Section No. 71 purchased by the defendants or in the alternative a sum of Rs. 2,100. Their claim was based upon the agreement of July 14, 1940. The trial Court decreed the plaintiffs suit. The learned District Judge to whom the appeal was preferred dismissed the plaintiffs' suit. In second appeal, Mr. Justice Shah differed from the view taken by the learned District Judge and restored the decree passed by the trial Court. Subsequently the learned Judge gave a certificate for a Letters Patent appeal and hence this appeal.

(2.) NOW, in order to decide the questions raised by Dr. Kane we have to consider the effect and the true purport of the agreement of July 14, 1940. As we said before, the agreement is between the plaintiffs, who were co-judgment-debtors along with the heirs of Buda Vanjari because they had purchased the equity of redemption of Section No. 21, and the mortgagees, the defendants. And the agreement was that the plaintiffs who were in possession of Section NO. 21 were to hand over possession of this survey number with the crop standing thereon to the defendants. It was further agreed that when Section No. 71 came to be auctioned in execution of the darkhast and the defendants got possession, they were to hand over half of those lands in Section NO. 71 under a sale-deed which wag to be executed and registered at the cost o? the defendants. It was further agreed that if the defendants did not execute a sale-deed, then they were to pay the price of half the land in Section No. 11. It was further provided that if Section No, 71 was purchased at the auction by someone else, then the defendants were to give half the sum of the price thereof after that price had been recovered by the defendants from the Court. The suit substantially was for the specific performance of this agreement. The contentions raised both in the Courts below and before us were, first, that the agreement was unenforceable by reason of Section 66, Civil P. C. , and the second contention was that there was no consideration for the agree-ment and it was nudum pactum and therefore no suit could lie on it. Finally it was urged that in any event plaintiffs were not entitled to a sum of Rs. 2,100.

(3.) NOW, turning to the first contention with regard to Section 66, this section bars a suit by a person who claims the beneficial title in himself against a person upon whom has been conferred the legal title by a, certificate of the Court in respect of property purchased at an auction sale. Further, this section only bara such a suit pro-Tided the purchase by the legal owner was made on behalf of the plaintiff the person claiming the beneficial title or on behalf of someone through whom the plaintiff claims. Now, it is clear that Section 68 ousts the jurisdiction of the oivil Court to grant equitable relief in certain cases where specific performance of an agreement is claimed, and by the accepted canon of construction to the extent that the jurisdiction of the Court is ousted the section must be strictly construed. The pro. hibition laid down in Section 66 should not be in any way extended or widened; it must be kept strictly within the four corners indicated by the section itself. Now, it is clear on the language of Section 66 that it only applies where a plaintiff claims or asserts a title in himself and challenges the title of the defendant as merely being benami. It does not contemplate cases where the plaintiff does not claim a title in himself but, admitting the title of Title defendant, he claims possession of the property by reason of an agreement entered into I with the defendant by which the defendant was bound to transfer property to him. The two cases are entirely different. In the one case the plaintiff's case is that title is in himself and he is suing on the strength of that title. In the other case the plaintiff admits that The title is in the defendant and his title would only arise provided the Court gave specific performance of an agreement entered into between him and the defendant. Therefore, the plaintiff when he files the suit has no present title in himself; his title is dependent upon specific performance being ordered by the Court, Sometimes the line between these two cases may be narrow and not clearly defined. But there is no difficulty in understanding or appreciating the distinction that lies between the two classes of cases. It is also clear that Section 66 prohibits only private agreements or understandings arrived at between the purchaser at the auction sale and the third party who seeks to acquire bis title through the purchaser. It is not aimed at that class of cases where although A may purchase at the auction sale B or C may have an interest in the property as a result, not of a private understanding or agreement, but in law, Now, if these principles are borne in mind, then the facts of the present case do not present any difficulty. The plaintiffs' suit is for specific performance of the agreement of 14th July 1940. The plaintiffs do not claim that they are the beneficial owners of the properties and that the defendants' title is merely a benami title. The plaintiffs make it clear that their only right is to a specific per. formance of the agreement. They claim no interest in the lands as such. Their interest would only arise if the Court were to grant them specific performance and order the defendants to convey the property to the plaintiffs. Therefore, in our opinion, the present suit does not fall within the mischief of Section 66 in as much as the defendants did not purchase the property on behalf of the plaintiffs as contemplated by that section. Dr. Kane has drawn our attention to several decided cases and wo will presently look at them. But in our opinion these cases do not go counter to what we have suggested is the true principle underlying Section 66.