MUTHE VENKATACHELLEPATI Vs. ROW SAHIB PYINDA VENKATACHELLAPATHYGARU

JUDGEMENT

(1.) These two appeals arise in a suit to recover certain immoveable property. The suit was instituted by the appellant in A.S. No. 209 of 08. He is the respondent in the other appeal No. 46 of 09. The facts that led to the institution of the suit, so far as they are relevant to these appeals, are these:-The plaintiff executed a deed of mortgage in favor of the defendant in November 1894. In 1896 he executed a deed of sale with respect to the same property for Rs. 8,000 and odd made up of the amount of the previous mortgage and Rs. 4,000 then paid to the plaintiff by the defendant. The sale deed is marked as exhibit A in this case. On the same day as exhibit A document was written which showed that the transaction between the parties was intended to be an usufructuary mortgage and not a sale. This document which is in the shape of a letter was not registered. Then in 1900 the defendant in the present suit tried to enforce what was intended to be a usufructuary mortgage, but it was ultimately held by the High Court that the mortgage could not be enforced as the document on which reliance was placed for the purpose was not registered as required by the law. The present suit is for the recovery of the same property and the plaintiff s case is that as the parties did not intend that Exhibit A should be treated as an effective deed of sale the property never passed to the defendant. The Subordinate Judge has decreed the suit but has made it a condition of the decree that the plaintiff should make over to the defendant whatever money he received under the deed.

(2.) The main question in appeal 209 is whether the Subordinate Judge was right in passing such a conditional decree. I am of opinion that he was. Taking the transaction to be void on the ground that the so called deed of sale was never intended to be given effect to, there can be no doubt that under Section 65 of the Contract Act the defendant will be entitled to the restitution of whatever advantage the plaintiffs derived by the abortive transaction.

(3.) The contention on behalf of the appellant is that the court, while giving the plaintiffs a decree for possession to which he is entitled cannot make it a condition precedent to recovery of possession, that he should make restitution because Section 65 of the Contract Act, does not give such a power to the court. But the fact that this section does not give the power in so many words, is not to my mind, conclusive. There is nothing in Section 65 which suggests that the court has no such power and in my opinion, independently of the Contract Act it lies perfectly within the competence of the court, in a case of this nature, to impose a condition which would do complete justice between the parties. There is no reason why the defendant should be driven to a fresh suit to recover the money which he paid for the property which the plaintiff seeks to recover on the ground that the intended transaction proved infructucus and it is for the plaintiff to show that we, cannot in this suit restore both the parties to their original position. No doubt this suit is one in ejectment and cannot therefore be called a suit in which an equitable relief is sought and the learned pleader for the appellant contends that we have got the power to attach such a condition to the decree only in cases where the relief sought is a relief in equity. But I agree with the ruling in Gurraj Baksh v. Kazi Hamid Ali (1886) I.L.R. 9 A. 340 at page 345 that even in suits in which the relief sought is not, strictly speaking, an equitable relief, the court has the power in a proper case to refuse to grant a decree to the plaintiff: except on terms indicated by obvious considerations of justice and this view also finds support from Mellor J. dictum in Clough v. London and Northwestern Railway Company (1871) L.R. 7 Ex. 26 at 37. In this country there has never been any distinction between equitable and legal jurisdictions and the same court has the power in a proper case to take note of the equities of the parties although the action may be strictly one at law. The principle upon which think we ought to act in this case is similar to taht embodied in several statutes of the Indian legislature, for instance Section 41 of the Specific Relief Act, Section 55, Subsection 6, Clause (b) of the Transfer of Property Act and Section 86 of the Trusts Act. I do not propose to consider whether we could declare a charge or a lien on the property in the circumstances of the case as was done in Kunhiamma Umma v. Ibrayam Haji (1912) 12 M.L.T. 264 and Padamma v. Themana Amma (1895) I.L. R. 17 M, 232 as we are not called upon to do either.