NEMI CHAND Vs. HARAK CHAND

JUDGEMENT

(1.) THESE two second appeals arise from a single judgment and decree of the learned District Judge of Pali dated May 23, 1958 and will therefore be disposed of together. The history of the dispute which dates back to S. 1984 may be stated briefly.

(2.) THE Jagir of Meda was situated in the Sojat pargana of the former Jodhpur State and Sewaj was one of the villages Included in that Jagir. The Thikana gave the 'ijara' of village Sewaj to Magni Ram, Har Lal Ratan Khan and Noor Khan, for a period of 10 years, or Sawan Bad 1 S. 1984. The Ijaradars, however, assigned the 'ijara' to Heera Chand for the same period on payment of Rs. 4,525/-per year. This heera Chand held the 'ijara' for a period of about 5 years and then assigned it to mishri Mal defendant No. 1 and Rawat Singh defendant No. 2 for the period from sawan Sud 1 S. 1989 to Asadh Sud 15 S. 1993 on payment of Rs. 4,525/-per year. Ex. P. 5 is the deed of assignment and is dated April 20, 1933. It was agreed in terms of that assignment that the 'ijara' money would be payable in two instalments, every year, the first instalment of Rs. 2,525/-being payable on Maha sud 15 and the other Instalment of the balance of Rs. 2,000/- being payable on jeth Sud 15. It was also stipulated that if the payment was not made in time, interest would be chargeable at about 6 per cent per annum. For purposes of this assignment, defendants Nos. 3 to 11 stood sureties on behalf of the said Mishri mal and Rawat Singh for the due performance of the conditions of the deed of assignment, which was duly registered. It appears that Mishri Mal and Rawat Singh failed to pay the 'ijara' money for smts. 1989 and 1990 and a suit was brought by Heera Chand against them, as well as against their sureties, and it was decreed by consent, of parties on July 19, 1934. It is not in dispute between the parties that the claim under that decree was duly paid up. It so happened, however, that there was again a default in the payment of the 'ijara' money for Smts. 1901, 1992 and 1993 and the claim in that respect amounted to Rs. 9,100/ -. As Rs. 1,000/-were held in deposit by Heera chand on behalf of Mishri Mal and Rawat Singh, the amount due on account of the "ijara' came to Rs. 8,100/ -. Heera Chand died in the meantime. Of his three sons, nemi Chand defendant No. 12 was a major while Hasti Mal defendant No. 13 and champa Lal defendant No. 14 were minors. They were liable to pay some debt to m/s. Jawan Mal Malaji of Bombay and defendant Nemi Chand therefore assigned the aforesaid debt of Rs. 8,100/-, along with some other debts, to the firm of M/s. Jawan Mal Malaji on Bhadwa Bad 9 S. 1997, corresponding to August 27, 1940, by a deed of assignment (Ex. P. 1 ). Under that title, the said firm of M/s. Jawan Mal malaji instituted a suit against all the defendants on, February 18, 1941 for the recovery of the sum of Rs. 8,100/-, along with Rs. 400/-on account of interest, totalling to Rs. 8,500/ -. It would thus appear that there were three sets of defendants in this case. Mishri mal defendant No. 1 and Rawat Singh defendant No. 2 form the first set of defendants. They were the principal debtors inasmuch as the assignment of the 'ijara' was made in their favour on April 20, 1933 by the registered assignment deed Ex. P. 5 and it is they who were alleged to have committed the default in payment of the 'ijara' money. The second set consisted of defendants Nos. 3 to 11 who, as has been mentioned earlier, were the sureties of the first two defendants for the assignment referred to in Ex. P. 5, The third set of defendants consisted of nemi Chand defendant No. 12, Hasti Mal defendant No. 13 and Champa Lal defendant No. 14, the three sons of Heera Chand, for It were they who assigned the debt of Rs. 8,100/- to the plaintiffs on the assurance that it was payable to them by defendants Nos. 1 to 11. It is in these circumstances that the plaintiffs prayed for a decree against the defendants and also prayed that the decretal amount may be ordered to be realised from defendants Nos. 1 to 11 in the first instance and, in the alternative, from defendants Nos. 12 to 14.

(3.) IT appears that the suit proceeded ex parte against defendant No. 2 and was contested by defendants Nos. 1, 3, 4, 5, 6, 7, 8, 10, 13, and 14. Mishri Mal defendant No. 1 took three principal pleas in his written statement. Firstly, he pleaded that he was the Kamdar of Thikana Meda, while Rawat Singh defendant no. 2 was the Hawaldar of that Thikana, and that they were men of meagre means who could not afford to take the 'ijara' at all. He pleaded that the assignment in their favour was merely a "benami" transaction, the real ijaradar being Thakur Kishan Singh, the Jagirdar of Meda. Explaining this defence, Mishri mal further pleaded that when the original assignee Heera Chand had enjoyed the 'ijara' for the first 5 years, he decided to transfer it to Maharaj Guman Singh for the remaining period of 5 years. The Thakur of Meda did not like this move as the transfer would have created the interest of another Jagirdar in a village of his jagir. The Thakur was however suffering from certain disabilities on account of the provisions of Section 9 of the Marwar Jagirdar Encumbered Estate Act, 1922, and could not enter, into a contract with Heera Chand for the transfer of the 'ijaradari' to himself as his estate was then under the management of the Haisiyat Court. He therefore thought of a device, persuaded Maharaj Guman Singh to withdraw from the field and secured the benami transfer of the 'ijara' from Heera Chand in the name of defendants Mishri Mal and Rawat Singh who were the employees of his thikana. To lend assurance to the soundness of the transaction, the Thakur, it was alleged, persuaded defendants Nos. 3 to 11 to be sureties for the due performance of the terms of the deed of transfer (Ex. P. 5) and also delivered his gold bangle and his gun by way of further security. Thus one of the important pleas of defendant Mishri Mal was that he was a benamidar for Thakur Kishan Singh of meda. Secondly, he pleaded that the entire income of village Sewaj for the period of 5 years was actually realised by defendants Nos. 12 to 14 and that no liability could therefore be fastened on the other defendants at all. Lastly, he pleaded that the 'ijara' money for 8, 1991 bad become time barred. Much to the same effect was the defence of defendants Nos. 3, 4, 5, 6, 7, 8 and 10. Hasti Mal defendant No. 13 denied all liability and pleaded that his brother Nemi chand had no right to make any assignment in favour of the plaintiffs, and a similar plea was taken by Champa Lal defendant No. 14. No written statement was filed by Nemi Chand defendant No. 12. The plaintiffs pleaded by way of replication that defendants Nos. 12 to 14 were members of a joint Hindu family of which defendant No. 12 was the manager and that there was no force in the plea taken by defendants Nos. 13 and 14.