RUSTAMALLI GOHARALLI MIRZA Vs. AFTABHUSEINKHAN NAJAFALLIKHAN MIRZA

JUDGEMENT

(1.) The facts out of which this appeal arises are these, The two villages Sahijpur-Bogha and Kujad belonged to the ancestor of defendant No. 1 Najafallikhan and the plaintiff's ancestors had a sixth share in their income. In 1860, by an agreement between defendant No. 1's father and the plaintiff's ancestors, Najafallikhan undertook to pay Rs. 96 a year out of the income of the villages in lieu of their one-sixth share. The agreement further provided that Najafallikhan was to pay Rs. 96 a year even if no income was realised by him. But in case of any catastrophe or an act of God or King he failed to realise any income, he was to pay such sum as he thought fit. Nothing more was to be paid to the plaintiff's ancestors even if the income realised was more. In pursuance of this agreement the plaintiff's father obtained decrees against defendant No. 1's father for arrears due at the rate agreed upon. In 1923 defendant No. 1 sold the village Kujad to Sardar Samsuddin, the father of defendants Nos. 3 to 7 and the husband of defendant No. 8. In 1924 he sold the other village SahijpurBogha to Sheth Maneklal Mansukhlal, who sold it to defendant No. 2 in 1930. In the previous suits it was held that the plaintiff's father's share in the amount of Rs. 96 payable under the agreement was Rs. 21. The plaintiff's father died in 1917 when the plaintiff was only five months old. The plaintiff attained majority on May 18, 1938, and he filed this suit on April 25, 1938, seeking to recover Rs. 462 as arrears of his dues at the rate of Rs. 21 per year from January 17, 1917, to January 17, 1.938, and to recover in future Rs. 21 on January 17 every year from defendants Nos. 2 to 8, or whoever may be in possession of the two villages. Defendants Nos. 2 to 8 contended that the plaintiff's suit was bad for multifariousness, that it was not in time, that the plaintiff had no right to recover Rs. 21 every year and that in any case, being transferees for valuable consideration without notice, they were not bound to pay any amount to him under the agreement between him and the father of defendant No. 1.

(2.) The trial Court held that the suit was in time and was not bad for multilariousness. It further held that defendants Nos, 2 to 8 were liable, along with defendant No. 1, for the plaintiff's claim. It also held that, after the death of the plaintiff's father, the plaintiff's share in Rs. 21 payable every year was only 7/20. The plaintiff contended that his mother and his three sisters were not entitled to any share, as the income was by custom to go only to male heirs. That contention was disallowed. Defendant No. 1 was held liable for the period from 1917 to 1923 and defendants Nos. 2 to 8 together for the amount payable in subsequent years. Accordingly defendant No. 1 was ordered to pay Rs. 51-7-2 to the plaintiff, and defendants Nos. 3 to 8 Rs. 51-7-2 and defendant No. 2 Rs. 58-12-9. It was declared that in future the plaintiff was entitled to recover Rs. 7-5-2 2/5 on January 17 every year from defendant No. 2 and defendants Nos. 3 to 8 or their heirs or assignees.

(3.) Three appeals were preferred against the decree of the trial Court, one by the plaintiff, one by defendant No. 2 and one by defendants Nos. 3 to 8, and they were disposed of by one judgment. The learned District Judge held that, so far as the transferees from defendant No. 1 were concerned, the case was governed by Section 40 of the Transfer of Property Act, 1882, that the amount payable under the agreement of 1860 was not a charge on the income of the villages, and that, as defendants Nos. 3 to 8 were transferees without notice of the obligation arising under the agreement, they were not bound to pay the amount which defendant No. 1's father had undertaken to pay under the agreement. Hence the decree against defendant No. 1 that he should pay Rs. 51-7-2 to the plaintiff was confirmed, but the plaintiff's claim against defendants Nos. 2 to 8 was dismissed with costs.