SRI RAJA VELUGOTI SARVAGNA KUMARA KRISHNA YACHANDRA BAHADUR GARU, RAJAH OF VENKATAGIRI Vs. SRI RAJAH SOBHANADRI APPA RAO BAHADUR, ZAMINDAR GARU

JUDGEMENT

(1.) On the 14 October, 19-10, the fourth defendant, on behalf of his minor son, executed a sale deed, Ex. B, in favour of the father of the plaintiff, with regard to a one-fourth share of a Mokhasa village. The consideration was Rs. 27,3O2 ; and the reason for the sale was said to be that the land was situate some distance from the place where the minor and his father were living and so it was impossible to enjoy the land at a profit. As the plaintiff s., father had hesitated to purchase a minor's property, the maternal grandfather of the minor, the then Maharajah of Venkatagiri, executed an indemnity bond on the 25 August, 1910, in favour of the plaintiff's father, the terms of which will be considered in detail later. He agreed that if the minor failed to execute a ratification kararnama and the purchaser was disturbed in his enjoyment and he sustained loss thereby and if he delivered the property to the Maharajah of Venkatagiri, he would pay him the Rs, 27,302 paid for the one-fourth share in the village. He also agreed upon, receiving a proper account, to indemnify the plaintiff's father against any sum that he might have to pay as a result of any suit for mesne profits that the minor might bring against him, The sale deed was registered on the 14 February, 1911. The Maharajah of Venkataigiri lived for four years after the minor attained his majority, and during that time the son did not dispute the alienation made by his father. In 1922, however, he filed O.S. No. 3 of 1922 in the Court of the Subordinate Judge of Bezwada against the present plaintiff and his brother (the plaintiff's father being then dead) for possession of this property and for mesne profits, on the ground that the alienation was not binding on him and that in any event the transaction was void because there had been fraud on the registration law, a small plot of land having been included in the sale deed in order to give jurisdiction to the Sub-Registrar of Samalkot, whereas the suit land lay within the jurisdiction of the Sub-Registrar of Tiruvur. As the legal representatives of the late Maharajah of Venkatagiri (the father of the present defendants 1 to 3) and the fourth defendant were interested in the result of the litigation, they were added as parties. The father of defendants 1 to 3 filed a written statement raising various contentions, one of which was that the plaintiff had not fulfilled the condition in the indemnity bond that the land should be delivered to him. The Subordinate Judge decreed the suit on the 20 September, 1924, on the ground that although the suit was barred by limitation if it be regarded as one to set aside an alienation by a guardian, the plaintiff was entitled to succeed, because there had been a fraud on the registration law and that the sale was therefore void ab initio. The matter was taken in appeal to the High Court, where it was held, on a consideration of the facts and the law on the subject, that there had been no fraud on the registration law and that the parties had intended that the small plot of land included in the sale deed should be conveyed also. The fourth defendant's son then appealed to the Privy Council and succeeded there, with the result that the decree of the High Court was set aside and the decree of the Subordinate Judge restored. There was delivery of the property in December, 1937, and on the 14 February, 1938, full satisfaction was recorded, the plaintiff having by then paid the fourth defendant's son, the mesne profits decreed, together with costs. On the 30 January, 1939;-the plaintiff, to whose share fell the suit dept in a partition with his brother, brought the present suit for Rs. 53,737-5-10, being the consideration for the sale deed, together with mesne profits and costs paid to the fourth defendant's son. The learned Subordinate Judge held that in view of the fact that the plaintiff had failed to restore possession to defendants 1 to 3 before the decree was passed, the terms of the first part of the indemnity bond had not been fulfilled and that he was not therefore entitled to receive from them the consideration for the sale. He however held that the second part of the indemnity bond, which related to the profits and costs, could be enforced, and accordingly gave a decree for the plaintiff against defendants 1 to 3 for Rs. 24,660-11-9. He found that the fourth defendant had received the consideration and that he was therefore bound under Section 65 of the Contract Act to refund to the plaintff the consideration, together with interest, from the date of Suit. Defendants 1 to 3 have filed A.S. No. 260 of 1941 against the decree passed against them for Rs. 24,660-11-9 and in that appeal the plaintiff has filed a memorandum of cross-objections for the balance of his claim, contending that he, had fulfilled the terms of the indemnity bond and that therefore the Court should have decreed to him the whole of the suit claim. The fourth defendant has filed A.S. No. 267 of 1941, contending that he cannot be made liable for the act of his son.

(2.) The first argument adduced on behalf of the defendants 1 to 3 is that the indemnity bond does not contemplate the contingency of the sale being found to be not binding on the minor because of a fraud on the registration law. The relevant-portion of the bond is as follows: I hereby agree that if, soon after the minor ceases to be a minor and becomes a major, a ratification kararnama is not caused to be executed and delivered to you, and if, for any reason, without consenting to the said sale, the minor Inuganti Venkatarama Rao Garu raises disputes, and loss is sustained by you thereby, and if you deliver possession to me of the one-fourth share in the said Somavaram village.... I myself shall, as soon as the same are passed to me without having anything to do with the minor or his natural father and guardian, Inuganti Sooryaprakasa Rao Garu, and without raising any objection, refund the sum of Rs. 27,302... which you shall have given towards the sale consideration, and that, if, as regards the past profits for the said share, the minor should file a suit against you and obtain a decree, I myself shall, after you transfer to me all the accounts that you may obtain in connection with the said past profits for taking steps against the said minor, in respect of the losses that may be sustained by you thereby, pay the decree amount relating to the said past profits.

(3.) It is no doubt true that the parties did not contemplate the possibility of some other item of property being included which would render the registration of no effect; but that would be no answer to a claim on the indemnity bond if the wording of that bond was such as to make the Maharajah of Venkatagiri liable. It will be seen that in the passage set out above, the Maharajah of Venkatagiri undertakes to indemnify the plaintiff's father if for any reason, without accepting the sale, the minor Inuganti Venkatarama Rao Garu raises disputes.