JOTI BHUSHAN GUPTA Vs. BNSARKAR THROUGH SNMITTRA, MANAGER

JUDGEMENT

(1.) These are two second appeals which arise out of two separate suits brought by Joti Bhushan Gupta, the appellant in both appeals, to recover his share of the rent of a theatre hall known as the Lakshmi Theatre Hall or the Chitra situated at Benares. The first suit, (No. 178 of 1937), which has given rise to Appeal No. 1536 of 1939, was filed on 7 May 1937, and it related to the period between 1st September 1936 to 30 April 1937. The second suit (NO. 485 of 1937) which has given rise to Appeal No. 1515 of 1939, related to the period between 1 May 1937, and 31 October 1937. B. N. Sarkar, the respondent in both appeals, was the principal defendant common to both suits. In the second suit, however, one S. N. Mittra was also impleaded as a defendant. For the purposes of these appeals, however, we are not concerned with him any longer. The two suits raised the same questions of fact and law for consideration and they were accordingly consolidated with the consent of parties and were decided by the same judgment by the learned City Munsif of Benares who dismissed them both. Prom that decree Joti Bhushan Gupta filed two separate appeals in the Court of the learned District Judge of Benares who has dismissed them both by the same judgment, Joti Bhushan Gupta has now filed the two second appeals which we have to consider.

(2.) The plaintiff-appellant, Joti Bhushan Gupta is the son of one Babu Mangla Prasad who was one of three brothers constituting a joint Hindu family at Benares, the other two being Raja Sir Moti Chand and Babu Gokul Chand. It is admitted that Raja Sir Moti Chand was the manager and karta of the joint family up till his death on 16 March 1934. The plaintiff appellant's father, Babu Mangla Prasad, predeceased Raja Sir Moti Chand, so that at the latter's death the only two members of the joint family were the plaintiff-appellant and Babu Gokul Chand. In the year 1932, Raja Sir Moti Chand had admitted B. N. Sarkar as a lessee of the Lakshmi Theatre Hall at Benares. It was agreed that the leseee would pay Rs. 500 as the monthly rent for the Theatre Hall. One J. D. Shah appears to have been appointed as his representative by Raja Sir Moti Chand. It may be stated here that in both suits the plaintiff-appellant alleged that the lessee, besides being liable for the monthly rent of the Theatre Hall, had also agreed to pay ten per cent, of the daily sale proceeds of tickets and in each suit a further relief was claimed that the lessee should be asked to account for a certain period in order to determine the share of the plaintiff-appellant in the amount due on account of the daily sale proceeds of tickets. This relief has, however, not been pressed or even referred to in the course of the argument before us and it has, therefore, to be entirely ignored and the two suits have to be considered as if they were merely for the recovery of the plaintiff-appellant's share of the monthly rent which the lessee had agreed to pay for the Theatre Hall. The plaintiff-appellant alleged that a few months after the death of Raja Sir Moti Chand, be clearly declared his intention to separate from Babu Gokul Chand and, therefore, there was a disruption in the joint status of the family. This allegation of fact has not, however, been accepted by the Courts below and has not been pressed before us. Indeed, it is not material for the determination of the questions of law which arise for consideration in these appeals. The fact remains and it is admitted that on 15 April 1936, the plaintiff, appellant gave a registered notice to Babu Gokul Chand clearly declaring his intention to separate and asking for a partition of the joint family property. He followed up this notice with a suit for partition on 2 June, 1936. A very important fact for the purposes of these appeals, which is also admitted, is that on 13th March 1937, the plaintiff-appellant served a notice on B. N. Sarkar warning him not to pay anything to Babu Gokul Chand or any person claiming through him so as to affect the plaintiff, appellant's interests. It was clearly stated in the notice that if B. N. Sarkar made any payment to Babu Gokul Chand in spite of the notice given to him, he would do so at his own risk and responsibility. This notice was followed by the institution of the first suit giving rise to Second Appeal No. 1536 of 1939 on 7 May 1937. B. N. Sarkar, who was the only defendant in the suit, raised two pleas, one of fact and the other of law, with which alone we are concerned in these appeals. The former was that on 12 May 1937, he had paid off all the money due from him under the lease up to date to Babu Gokul Chand through his representative J. D. Shah. The latter was that the frame of the suit was defective, inasmuch as the plaintiff-appellant had sued for his share of the rent without making Babu Gokul Chand a party. It is not quite clear from the judgments of the Courts below whether this payment was made in cash or by means of a cheque in the name of Babu Gokul Chand. The fact, however, remains that in his written statement, dated 23 June 1937, B. N. Sarkar repeatedly asserted that he had paid the whole amount to Babu Gokul Chand. Indeed, in para. 1 of his written statement he even denied knowledge of the fact that the plaintiff had any right, title or interest in the Theatre Hall as a co-owner with Babu Gokul Chand. In para. 11 of the written statement he clearly said: That from the beginning all rent falling due as well as 10 per cent, on the sale of tickets were paid to Babu Gokul Chand through duly appointed representative, one Mr. J.D. Shah. This allegation of the payment having been made to Babu Gokul Chand was repeated in paras. 12 and 14 of the written statement. It is necessary to lay stress on this point because it appears to have been entirely ignored by the Courts below who have discussed the case as if the payment had been made to J. D. Shah in his capacity as the representative of the family and not to Babu Gokul Chand. It is admitted that Babu Gokul Chand became the manager and karta of the family on the death of Raja Sir Moti Chand on 16 March 1934, and thereafter he wrote a letter on 2l March, 1934 to B. N. Sarkar in which he said: Henceforth while paying the rent and other dues of Chitra please issue the cheque in my name, and Mr. J. D. Shah will work as my representative. It has been stated above that Mr. J. D. Shah was appointed by Raja Sir Moti Chand as his representative in the year 1932. Any authority which Mr. J. D. Shah derived from that appointment by Raja Sir Moti Chand came to an end on the latter's death on 16 March 1934. J. D. Shah has been treated by the Courts below as the representative of the family apparently only because of his appointment by Babu Gokul Chand in his letter, dated 2l March, 1934. It seems to have been assumed by the Courts below that because J. D. Shah was appointed by Babu Gokul Chand as his representative he must be deemed to have been a representative of the family, inasmuch as Babu Gokul Chand, who had appointed him, was the manager and karta of the family. We do not, however, think that this conclusion necessarily follows from the appointment of J. D. Shah as his representative by Babu Gokul Chand. It will be noticed that in his letter, dated 2l March, 1934, Babu Gokul Chand directed B. N. Sarkar to issue cheques in his name and mentioned J. D. Shah as his representative. Even assuming for the purposes of argument that J. D. Shah was appointed as the representative of the family by Babu Gokul Chand who was the manager and karta, still the point remains-and it is a point which has been ignored by the Courts below-that the alleged payment by B. N. Sarkar of all the money due from him under the lease on 12 May 1937, was specifically made to Babu Gokul Chand and not to J. D. Shah as the representative of the family. It has also to be borne in mind that this payment was made long after the plaintiff-appellant had served a notice upon B. N. Sarkar warning him not to make any payment to Babu Gokul Chand or to any person claiming through him. The payment, whether in cash or by means of a cheque, even if it was made in fact to J. D. Shah, was on B.N. Sarkar's own clear pleading in his written statement made to Babu Gokul Chand. The mere fact that the money in cash or in the form of a cheque was handed over to J. D. Shah to be taken to Babu Gokul Chand does not alter the legal situation at all. The payment was a payment to Babu Gokul Chand and that was the clear case which B. N. Sarkar set up in his written statement. It is significant in this connexion to bear in mind that in para. 1 of his written statement B. N. Sarkar totally denied having any knowledge of the fact that the plaintiff-appellant had any right, title or interest in the Theatre Hall. There is absolutely no suggestion of any kind in the written statement of B. N. Sarkar that the payment was made for the benefit of the joint family of which Babu Gokul Chand was the manager and karta. In this connexion it is also necessary to refer to certain findings of fact arrived by the learned District Judge. On p. 29 of his judgment in the printed record before us the learned District Judge has found as follows: There is no doubt, as will appear, from Exs. 6, 7, 8, 9 and the statement of Mr. S.N. Mitter that it was known to the respondents that there was a partition going on between the appellant and his uncle. Again, on p. 35 of the judgment he states: It is obvious from the documentary and other evidence in this case that Mr. B. N Sarkar and Mr. S.N. Mitter have taken up a position which has been definitely partial to Babu Gokul Chand and definitely against the appellant. There is no doubt that they knew after the death of Raja Sir Moti Chand that there was a partition suit going on between the appellant and Babu Gokul Chand and that the appellant was entitled to half the share. As lessees they should not have sided with one side or the other. In this case, I am definitely of opinion that both Mr. B. N. Sarkar and Mr. S.N. Mitter were apparently siding with Babu Gokul Chand. In spite of these findings, the learned District Judge arrived at the conclusion that the payment by B. N. Sarkar on 12 May 1987, which according to him had been proved by the evidence on the record, was a payment to J. D. Shah in his capacity as the representative of the family and, therefore, gave B. N. Sarkar a valid discharge in respect of the whole of his liability both to Babu Gokul Chand and the plaintiff appellant. As regards the plea of law raised by B. N. Sarkar that the suit was defectively framed, inasmuch as the plaintiff-appellant had sued for his share of the rent without making Babu Gokul Chand a party, both the Courts below have arrived at the conclusion that this plea must prevail on the general principle that one co-lessor cannot maintain a suit against the lessee for his share of the rent alone. On these findings both suits have been dismissed and Joti Bhushan Gupta has come up in appeal to this Court.

(3.) The first question for consideration is: "Whether the payment by B. N. Sarkar on 12 May 1937, gave him a valid discharge in respect of the whole of his liability both to Babu Gokul Chand and the plaintiff-appellant? As stated above, the Courts below have proceeded on the assumption that the payment was in fact made to J. D. Shah as the representative of the joint family. They have held that as the plaintiff-appellant did not specifically repudiate the authority of J. D. Shah to act as the representative of the family in the notice which he served on B. N. Sarkar on 13 March 1987, the payment made by B. N. Sarkar to J. D. Shah must be held to be a good payment discharging B. N. Sarkar of the whole of his liability. With this view of the legal position of the parties we are entirely unable to agree. Upon the admitted facts of the case, namely, that a registered notice was given by the plaintiff-appellant to Babu Gokul Chand on 15 April 1936, declaring his intention to separate and asking for a partition of the joint family property and this notice was actually followed by a suit for partition on 2 June, 1936, it is perfectly clear that a disruption had taken place in the status of the family and on 12 May 1987, Babu Gokul Chand was not and could not be the manager and karta of the joint family and could not possibly represent the plaintiff-appellant, so that any payment made to him on that date could not have been made in his capacity as the manager and karta of the family. Added to this is the fact that B. N. Sarkar and S. N. Mittra who was one of the two defendants in the second suit were both aware of the pendency of the partition suit between Babu Gokul Chand and the plaintiff-appellant and the latter had actually served a notice on B. N. Sarkar on 13 March 1937, telling him that if he made any payment to Babu Gokul Chand or any person claiming through him he would do so at his own risk and responsibility. In our judgment the terms in which this notice was couched were clear enough to indicate to B. N. Sarkar that Babu Gokul Chand was not the manager or karta of the family and to put him on his guard against making any payment to Babu Gokul Chand so as to affect the interests of the plaintiff- appellant. We do not think that it was necessary at all for the plaintiff to state in the notice that he did not recognize J. D. Shah as the representative of the family. We have again the definite finding of the learned District Judge relating to the attitude taken up by B. N. Sarkar and S. N. Mittra in their relation to Babu Gokul Chand from which it necessarily follows that they were colluding with him. Having regard to these facts, we think, it necessarily follows that the payment by B. N. Sarkar to Babu Gokul Chand could not give him a valid discharge of his liability so far as the plaintiff-appellant is concerned.