GOVIND DASS Vs. RAM CHARAN LONIA

JUDGEMENT

(1.) In this case, Govind Das and five others, being 6 out of the 7 sons of Gopal Das, sued to avoid an alienation of joint family property made by their father, Gopal Das. The defendants were the vendees under a sale-deed of the 1 of November 1917 together with Gopal Das himself and another son of his by name Debi Das who had refused to join in the suit. Three of the plaintiffs ware miners on the date of the institution of the suit. The plain issue in the case was, of coarse, the question of legal necessity for the sales bat it arises in a peculiar form and complicated by the result of a previous litigation. The sale dead above referred to was not voluntarily executed by Gopal Das. It was imposed upon him by a decree of Court in a suit for specific performance of an agreement dated 3 September, 1912. The position, therefore, is that Gopal Das, as the father and manager of a joint undivided Hindu family, entered into an agreement to sell joint family property in his hands (it may be noted further that the agreement covered the whole, or practically the whole, of the immoveable property belonging to the family) and repented of this agreement, bat was compelled to execute the deed of transfer by decree of Court. This decree was obtained in a suit which came up to this Court as First Appeal No. 177 of 1917, decided on the 6 of March 1919. The suit as brought was a peculiar one. The plaintiffs not merely claimed specific performance of the agreement of September the 3 1912, but they joined with this claim one for consequential relief by delivery of actual possession over the property in respect of which a conveyance was to be executed by decree of Court. There has been some argument before us as to whether such a suit would be maintainable at all, but I do not propose to discuss this question as it has no real bearing on the result of the present appeal. The point which requires to be noticed is the consequences which followed from the frame of that suit, especially in the execution department. The Trial Court very properly, in my opinion, held that, whether a suit so framed were maintainable or not, it certainly could not be effectively tried without making the sons of Gopal Das parties as defendants. The then plaintiffs were offered an opportunity of impleading the sons of Gopal Das and deliberately declined to avail themselves of the same. It has been pointed out that the reason for their action probably was that the suit, regarded purely as one for specific performance, would have been barred by limitation as against the sons of Gopal Das before the Court's order, which virtually directed them to be impleaded, could be complied with, However, the Court eventually determined to proceed with the trial of the suit as against Gopal Das alone. This procedure was virtually sanctioned and endorsed by a Bench of this Court before which the matter came in appeal but an examination of the record shows beyond doubt that this was only done upon the understanding that the suit was limited to the question whether Gopal Das should or should not be compelled to execute a formal (Conveyance in accordance with the agreement of September the 3rd 1912. No doubt, issues had been framed by the Trial Court covering the whole matter in controversy, but, from the moment that the plaintiffs declined to implead the sons of Gopal Das, the only questions which remained for determination were whether Gopal Das had, in fact, entered into the alleged agreement and whether he should, in that suit, be compelled to execute a formal conveyance in accordance with the agreement without prejudice to any right which his sons might have of challenging either the conveyance or agreement out of which it arose. The view taken by the Trial Court is sufficiently expressed in the decree actually framed, which was a mere declaration that the plaintiffs were entitled to specific performance of the contract to sell. The appeal preferred against this decree wad filed in this Court on the 14 of May 1917. In the meantime, however, the plaintiffs had gone to the Trial Court with an application for amendment of the decree. This application, unfortunately, came before the successor of the Subordinate Judge who had delivered the judgment in the suit and signed the decree as originally framed. His successor was apparently impressed with the fact that the decree, as framed, did not carry out the operative portion of the judgment, according to which the suit (as brought) was decreed. He accordingly amended the decree under an order of the 12 of May 1917 by the addition of words which allowed the plaintiff's claim for delivery of possession over the property specified at the foot of the plaint. The appeal to this Court was filed in apparent ignorance of this amendment two days after the amendment had been made, It was, in fact, filed upon a copy of the decree as unamended and was dealt with by this Court upon that basis. The learned Judges who decided the appeal were clearly of opinion that they were determining nothing which could, in any way, affect or prejudice the rights of the sons of Gopal Das. They same to the conclusion that, under the circumstances, the decree which they had before them, that is to say, the decree directing specific performance of the contrast of the 3rd September 1912, had rightly been passed as against Gopal Das. They expressly reserved the right of the sons of Gopal Das to challenge the effect of this alienation upon their interests. The latter had already done so by means of the present suit, instituted on the 6 of September, 1912. The fact that one of the sons declined to join in the suit is of no legal importance So far as we can gather from the record, the truth seems to be that Gopal Das had, while the dispute between him and his transferees was pending, granted a lease of a substantial portion of the property covered by the agreement of the 3 of September 1912 on favourable terms to his son, Debi Das. The transferees have virtually bought off Debi Das by agreeing not to contest this lease.

(2.) The plaint, in the present suit, was amended after the decree of the Trial Court in the suit for specific performance had been passed, but, in the meantime, and, thereafter, proceedings in execution of that decree continued. A formal sale- deed was executed under orders of the Court on the 1 of November 1917. One of the points in issue had been the price for which the property was to be conveyed. This was fixed by the Trial Court at Rs. 22,508-10-10 and this finding was affirmed on appeal. The decree did not, however, direct that the whole of this money should be paid over to Gopal Das. On the contrary, there was a direction that the vendees, upon execution of the conveyance, were permitted to retain in their own hands so much money as might suffice to pay off a mortgage on the property in suit, dated the 10 of July, 1909, executed by Gopal Das and those of his sobs who had, on that date, attained majority, in favour of one Manik Chand. The vendees waited until the 4 of September 1919 when they deposited in Court the amount of money sufficient to pay off this mortgage. We have been informed in argument that they were subsequently compelled to increase the amount of their deposit, that the total sum deposited by them amounted eventually to more than Rs 23,700 and that they have actually paid off Manik Chand. In saying this, we are, to some extent, travelling beyond the record before us, but what we do know is that the vendees did proceed to take out execution of their decree as amended and obtained from the Execution Court, on the 24 of January 1918 formal delivery of possession over all the property covered by the decree. It seems to me very much open to question whether, under the circumstances, the sons of Gopal Das would not have been well advised in treating that delivery of possession as one which could not affect their rights in any way. As a matter of fact, they submitted to the process of the Court and accepted the position that they had been actually ejected, along with their father, on the 24 of January 1918. They elected to come before the Execution Court with a petition purporting to be tinder Order XXI, Rule 100 of the Civil Procedure Code. That is to say, they represented themselves as persons other than the judgment-debtor who had been dispossessed of immoveable property by the holder of a decree for the possession of such property and they asked the Court to restore them to possession at least to the extent of the shares in the property in question which would have fallen to them on a partition between themselves and their father. This application had a very curious history. It was pending in the Execution Court when one of the decree-holders, by name Sital, died. The Court thereupon held that there existed no machinery under the Civil P. C. by which the legal representatives of Sital could be brought upon the record, that the application under Order XXT, Rule 100, could not be farther proceeded with and it was accordingly rejected. We bays before us connected with the present appeal, an application in revision against that order of the Execution Court. I have gone into this matter in such detail because I think one of the points before us for consideration is whether the decree in the present suit can, or ought to be, framed in such a manner as to rectify the error which the Execution Court undoubtedly committed when it rejected the application under Order XXI, Rule 100, on the grounds on which it did so reject it. It is obvious, moreover, that in any decree, which we may now pass on this appeal, we must take account of the fast that the vendees under the sale- deed of November the 1 1917, bad rightly or wrongly, and as I think wrongly) been plated in actual possession of the disputed property under their decree as amended.

(3.) In tie light of the fasts already stated, it is now necessary to come back to the one essential question in if sue in this appeal, namely, whether there was legal necessity either for the sale deed of November the 1 191(sic)7, or for the agreement of September tie 3rd, 1912, so as to make either or both of these transactions binding upon the sons of Gopal Das.