SAKTOO MAL Vs. GOPAL CHAND

JUDGEMENT

(1.) THE facts are these:---In Etawah City there is a house known as Bilaswala. In the plaint it in stated that this house is in a dilapidated condition. THE Courts have not arrived at any finding whether the house is or is not occupied or when it was occupied last. It is now agreed between the parties that the house wan inherited in their equal shares by Rani Dayal, Gopi Nath and Gokul Chand, Chaube Brahmans, sons o! Durga Prasad, and own brothers. It is not clear how they inherited the house. Possibly, they inherited it as sister's sons as their mother is said to have been the sister of a man tailed Bailas. This much is clear that Gokul Chand inherited a 3 share, Gokul Chand has a son sailed Atma Ram : Gokul Chand is alive. Ram Dayal is dead. He has been succeeded by his two minor great grandsons, Udit and Perkash. Gopi Nath is dead. He is represented by his son Banarsi Das and his grandson Maksodan, On the 3O November, 1918 Gokal Chand agreed with Saktu Mal, Bania, to sell him the whole of Bilaswala house for Rs. 1,000 and took Rs. 25 Earnest money for which be gave a receipt. THE receipt was drafted by his son Atma Ram and was in the names of both Gokul Chand and Atma Ram but was signed by Gokul Chand only. Gokul Chand subsequently refused to take any further steps in the transaction. Saktu Mal then sued Gokul Chand and Atma Ram in the Munsif's Court of Etawah in 1919. He asserted in his plaint that the house in question had tome into the possession of Gokul Chand and Gopi Nath's descendants in equal moieties, Ram Dayal's descendants having relinquished all claim to it, and he asked for specific performance of the agreement to sell to the extent of half of the house for Rs. 500 if the remaining co-sharers refused to sell their moiety, and in the event of the remaining co-sharers refused willing to sell their moiety, for the sale of the whole house for Re. 1,000. Ha asked in addition for any other relief which may he found due to him. THE written statement Sled by Gokul Chand was to the elect that hi had agreed to sell the house for Rs. 1,000 and had taken Rs. 25 as earnest money. It continued that he, Gokul Chand, had no rights of any kind in the house as he had given up his rights in consideration of receiving other land from Ram Dayal and Gopi Nath. It continued that he had been misled by the plaintiff into fomenting to execute a sale-deed for the house and had had Rs. 25 as earnest money forced upon him, Atma Ram's statement was that he owned nothing in the house in dispute and had taken no part in the agreement When the case came to trial the plaintiff produced two letters. One was a letter written to him by a certain Manni Lal and the other was a letter which Manni lal enclosed, that admittedly had been des patched by Atma Ram to Banarsi Das, the son of Gopi Nath. Banarsi Das was at that time living in Gwalior THE defendants admit that the second letter had been sent by Atma Ram to Banarsi Das, but they contended that the letter had been sent by post, had been lost while in the possession of the Post Office and had been received by the plaintiff dishonestly with the full knowledge that it had been stolen, I am informed by the Counsel for the appellant that criminal proceedings were instituted by Atma Ram against the plaintiff under Section 411, Indian Penal code, and that those proceedings failed. But there is nothing to that effect on the record. In any circumstances, the letter was admitted to have been written by Atma Ram. This letter, it will be observed, was being sent to Banarsi Das who, both sides agree, had a share in the house in question. It is to the effect that Gokul Chand and Atma Ram had been attempting to sell the Bilaswala house to a Brahman ; that at first they could not get an offer for more than Rs. 800, but that they found the present plaintiff ready to give Rs, 1,000 ; that they had accepted his offer and by representing to Brahmans that the plaintiff was ready to give Rs. 1,000, they had hopes that they would be able to obtain an equal sum from two Brahmans, and that, in these circumstances, the best course appeared to be to repudiate the contract with the plaintiff. THE plaintiff put this letter in and also put in evidence to prove that the house belorged solely to Gopi Nath and Gokal Chand. Gokul Chand produced two witnesses, Kishen Lai and Baij Nath. Kishen Lal deposed that thirty years before the date of the suit Gokul Chand, Gopi Nath and the son of Ram Dayal had made a family arrangement in respect of the Bilaswala house whereby Gopi Nath and the son of Ram Dayal took the whole house in eqal shares, and Gokul Chand took in lieu some other land belonging to the family. Baij Nath deposed to the same effect with the exception that he placed the date of the family arrangement at 15 to 2 J years before the date of the suit. I observe that the English note of the evidence of these two witnesses gives very little clue to what they actually stated. THE Munsif came to the conclusion that the plaintiff's witnesses were telling the truth ; that the house was now the property of Gopi Nath's successors and Gokul Chand, and he directed Gokul Chand to execute the sale-deed to convey half to the plaintiff. THE learned District Judge of Mainpuri arrived at the conclusion that Gokul Chand had lost all interest in the house. This is what he says:---"THE oral evidence produced in this case and the evidence in the cane filed by Bindraban show that Gopi Nath and Kishore Chand, son of Ram Dayal, only had right in the house in suit and Gokul Chand had no right in the house. Evidence on the record shows that Gokul Chand had got some chabutra land from his brothers in lieu of his share in the house in suit. So from all this evidence it would appear that Gokul Chand has no subsisting right in the house in suit and Atma Ram never had any right. That is all. He gives no reasons for rejecting the plaintiffs evidence. He gives no reasons for accepting the evidence produced by the defendants. He makes no attempt to reconcile the discrepancy between the two witnesses, Kishen Lal and Baij Nath, one of whom places the transaction at SO years before the suit and the other at 15 to 20 years before the suit. It is doubtful whether these defeats would vitiate the finding as a finding of fact, but there is one element in the finding which vitiates it and that is the reference to the evidence in the case filed by Bindraban. I have been able to certain to what the learned District Judge is referring. Bindraban lives in the neighbourhood of the Bilaswala house. He was constructing a latrine. Some members of the family complained to the Municipality who directed Bindraban to close that latrine, Bindraban then summoned some members of the family in a Criminal Court under Section 352, THEy were acquitted on the ground that the case was false. No evidence produced in either of these proceedings was brought on the record, with the exception of the judgment of the Criminal Court which was inadmissible in respect of the point in issue, this point being whether Gokul Chand had any connection, with the Bilaswala house. So this finding is vitiated by the fac1; that it proceeds in part upon inadmissible evidence. I do not propose to send the case back. On the materials, I am in a position to arrive at the following finding. Gokul Chand had certainly a 1 3 share in the house in question. THE evidence produced by him is not sufficient to show that he has no longer any interest in the house in question, I do cot propose to arrive at a definite finding for the following reasons:- Gopi Nath's descendants and Rim Dayal's descendants are not parties to the suit, I cannot adjudicate absolutely on Gokul Chand's title without entering into their title, It is inadvisable to be too definite at this stage. It is sufficient to say, that Gokul Chand has not been able to establish that he has no title in the property which he purported to convey. In these circumstances, the plaintiff has a right to obtain a deed of sale from Goku1 Chand and Atma Ram in respect of 1-3 of the house. He has a right to obtain this deed from Atma Ram for Atma Ram, as the son of Gokul Chand, has joint interests in the share and Atma Ram clearly agreed to the sale. THE decree will be as follows:--- Gokul Chand and Atma Barn will excente a deed of sale of 1/3 of the Bilaswala house within three months of the date of this decree subject to the ,plaintiff paying to them Bs. 208 5.4 at the time of registeration in the presence of the registration Officer and paying the costs of the conveyance. In view of the attitude taken up by Gokul Chand and Atma Ram, I direct that they pay their own costs and those of the plaintiff in all Courts. THEse acsts will include fees on the higher scale in this Court. THE appeal is allowed accordingly.