CHUNIBHAT PATEL Vs. NATHA BHAI PATEL

JUDGEMENT

(1.) This is an appeal by the defendants in a suit which was instituted by the plaintiff-respondent to recover from them a certain sum of money on the basis of an agreement said to have been entered into between the parties on 19 April 1938. In order to understand the agreement which is relied upon by the plaintiff it is necessary to refer to certain facts. In 1938 one Daha Bhai Patel instituted a money suit (suit No. 18 of 1938) against no less than 11 persons including the present plaintiff for the recovery of arrears of royalty and other dues in respect of a colliery known as Egarkur Colliery. Daha Bhai Patel who had instituted the suit was admittedly the landlord of the mine and defendants 1 to 3 in that suit were lessees in respect of the mine. Defendant 4 was Umed Bhai Patel who had purchased the colliery from defendants 1 to 3 in, 1928. After this purchase Umed Bhai Patel made a gift of the property to his daughter-in-law, Sreemati Dahi Kumari Debi who was defendant 8 in the suit. The present appellants who are the sons of Umed Bhai Patel were impleaded as defendants 5 to 7 and the present plaintiff was impleaded as defendant 9. It appears that defendant 8 had sold the property to the present plaintiff and after some time the property was purchased by defendant 10 of suit No. 18 in a certificate sale held to recover certain dues recoverable from defendant 9. Defendant 10 afterwards sold the property to defendant 11.

(2.) It appears that in suit No. 18 of 1938 the case of Daha Bhai Patel was that the various transfers which had made it necessary for him to implead so many defendants were benami and that the colliery had throughout remained the property of defendants 4 to 7 and they were also in possession thereof. This allegation however was controverted by defendants 4 to 7 as well as defendants 9 and 10. These two sets of defendants filed two separate written statements, but their common case was that defendants 5, 6 and 7 had never acquired any right to the property in question and were not liable for any royalty or rent; that there had been no benami transaction with regard to the property; that defendant 4 was a bona fide purchaser of the property from defendants 1 to 3 under a sale deed dated 2 March, 1928 and that the property afterwards had been purchased by defendant 9 (the present plaintiff) and he was in possession thereof till 6 July 1938 when his interest was sold in a certificate case. The point which might be noted at this stage is that on the same day on which these two sets of defendants filed their written statements in the suit, the present plaintiff and defendants 5 to 7 of that suit entered into a private arrangement which was incorporated in a written agreement (EX. 1) to the following effect: We (defendants 5 to 7) the executants do hereby agree and do declare and do acknowledge that the extent of liability on account of the expected decree in Money Suit No. 18 of 1938 which would be charged upon you Natha Bhai Patel (defendant 9) we take upon ourselves and do hereby exonerate you from all sorts of liabilities inasmuch as you have nothing to do with the property, viz., Egarkur Colliery and we are practically and really the owners of the same and do validly take upon ourselves all sorts of liability. In future when you would be liable for the sum decreed against you we do hereby promise to remove the said liability and also do promise that we will be legally bound to repay you the dues for which you would be liable upon the decree that would be passed against you and we shall further be liable for any cost incurred by you for the realization of the same.

(3.) The suit brought by Daha Bhai Patel was heard by the Subordinate Judge of Dhanbad and he came to the conclusion that defendants 4 to 7 were not liable for the royalty and other dues claimed by Daha Bhai Patel but the present plaintiff and the other defendants in that suit were liable for the dues of the period during which they were respectively in possession of the colliery. In other words, the common defence which was raised by the present plaintiff and defendants 5 to 7 of Suit No. 18 of 1938 (the present appellants) succeeded and a decree was passed as against the plaintiff and the suit was dismissed as against defendants 4 to 7. This judgment was delivered on 15 July 1938 and thereafter the present suit was instituted by the plaintiff on 30 January 1939 to recover the sum of money for which a decree had been passed in Suit No. 18 of 1938 together with interest which had accrued thereon up to the date of the suit. The suit was resisted by the defendants on various grounds, but we are concerned only with three of them which have been pressed in this appeal.