BITHAL DAS Vs. RAGHUNATH DAS

JUDGEMENT

(1.) THE defendants in this suit had sold a certain 8-annas share to the plaintiffs. Before the document even came to be registered the parties had begun to quarrel. THE plaintiffs-vendees did not pay up the sum of Rs. 5,804-1-0 in cash, which they should have paid at the registration of the deed, and the defendants on their side refused to give the plaintiffs any sort or kind of possession over the property sold. THE plaintiffs were reduced to bringing this suit and they have obtained a decree for possession, subject to certain conditions. One of those conditions is their payment into Court of the sum of Rs. 5,804-1 already mentioned; we understand that this condition has been complied with and that the plaintiffs have now obtained possession. At any rate, this part of the decree is no longer in dispute. THE appeal, which is by the plaintiffs, raises three minor points and one very substantial point. About this last there is also a question raised in the petition of cross-objections filed by the defendants. It will be convenient to dispose of the minor points first. THEre was a question raised as to whether a certain grove did or did not appertain to the 8-annas share conveyed by the deed of sale on which this suit is based, so as to pass to the plaintiffs-vendees under the said deed. THE Court below has found that, it did not. On the evidence on the record that finding appears to be correct. It had been separately acquired by the defendants many years before they became the owners of the 8-annas zemindari share itself, and it seems to have been possessed by them quite independently of their ownership, of that share. Another point taken is as to the refusal of the Court below to give the plaintiffs any decree for mesne profits. THE reasons given for this in the judgment under appeal appear to be correct. In fact the Trial Court could scarcely pass in favour of the plaintiffs a decree for recovery of possession subject to payment of certain sum of money, without at the same time refusing the prayer for mesne profits. THE decree itself implies that the plaintiffs were not entitled to possession and, therefore, to the enjoyment of mesne profits, until they paid the sum of Rs. 5,000 and odd. Another point taken is with regard to the order of the Court below about costs in that Court. We think it sufficient to say that we are not disposed to interfere.

(2.) WE now come to the main question in issue before us. From one point of view, the sale-deed in suit represents nothing more or less than one of the numerous attempts to defeat the provisions of the local Tenancy Act on the subject of the creation of exproprietary tenancies, which we still come across from time to time. The defendants, the executants of this deed, expressly stipulated that they would surrender actual possession and enjoyment of the sir and khudkasht lands, in respect of which they became by Statute exproprietary tenants from the date of the execution of the deed of sale. It has been repeatedly held that such a stipulation is void as being contrary to public policy. It has also been held that any stipulation by way of penalty, inserted in a sale-deed in order to enforce the fulfilment of such a convenant on the part of the vender, is also void and unenforcible. These principles, however, do not altogether cover the question in dispute in the present case. The stipulations of this sale-deed as to the considerations are of a peculiar character. The vendors in effect covenanted to convey to the vendees property which should bring in a clear income of atleast Rs. 856-13-9 per annum. This represented 5-annas 6 pies per cent per annum on the entire sale consideration. The vendees were allowed to retain in their possession Rs. 4,000 out of the consideration, for a period of one year, to satisfy themselves whether they were or were not making the stipulated rate of profit, in the event of their failing to do so, they were entitled to make a proportionate deduction from the sum of Rs. 4,000 in their hands and to pay over the balance only to their vendors. The Court below has enforced this stipulation and embodied it in the decree. On the one hand, the plaintiffs contend that under the terms of the sale- deed the covenant regarding the amount of profits was not limited to this sum of Rs. 4,000 and that, therefore, the decree should have been so framed as to entitle the plaintiffs, not only to retain the entire sum of Rs. 4,000, but to get back from the defendants (out of the consideration which they have paid, or have been ordered to pay) any further sum that might be necessary in order to bring the actual price paid by them into conformity with the stipulation that this price was being paid for property the income of which should yield a percentage of 5-annas per annum on the sale consideration. On the other side, the defendants contend in their petition of objections that this stipulation should not have been enforced at all, because it is only in a disguised form a further stipulation by way of penalty to enforce the agreement regarding the surrender of the exproprietary tenancy. There is something to be said in support of both contentions; but on a careful consideration of the terms of the deed in suit we feel satisfied that the Court below was right and that both the appellants and the respondents pleas on this point should be overruled. The entire clause stipulating for the surrender of the exproprietary tenure, and for a penalty in the event of the failure of the vendor to make such surrender, can be wiped out of the document, without interferring in any way with the stipulation that, up to a limit of Rs. 4,000 left in the hands of the vendees for this very purpose, the property conveyed shall yield an annual income bearing a, certain percentage to the sale consideration. For these reasons, we dismiss both the appeal and the cross-objections, in each case with costs, including fees on the higher scale.