BHAVANI ALIAS RUKMANI AMMA Vs. ANANTHA KAMTHI

JUDGEMENT

(1.) The necessary facts are as follows : Plaintiff s husband, now deceased, started a Kuri fund and in 1892 executed Ex. R. to the members, pledging property as security for the amounts, which would be payable to them. On his death plaintiff succeeded to his estate and her father, as her guardian, in 1893 took steps to transfer the management of the fund to 1st defendant by a Power of Attorney and obtained from him and his brothers an indemnity bond Ex. B. with the plaint property as security for an amount not exceeding Rs. 2,500 against any damage resulting to plaintiff and her property including that bound by Ex. R. Two members of the fund afterwards obtained decrees on Ex. R. against plaintiff, 1st defendant being a party; and (neither decreeholder being a party to the other s decree) both in succession brought the property to sale, the purchasers being different individuals. Plaintiff has now sued 1st defendant and others representing the other executants of Ex. B. to recover Rs. 2,500 by sale of the properties specified therein as security. The question is whether the Lower Courts were right in deciding that her suit was premature.

(2.) The Lower Appellate Court reached this decision on what, notwithstanding its tentative method of expression, may be accepted as findings of fact, that plaintiff had enjoyed the suit property since 1898 by mortgaging it with possession to P.W. 2, one of the two decreeholders above referred to; has continued to enjoy it until the date of suit by receiving from him the annual payment of grain, for which his mortgage provides ; and is accordingly in spite of the two court sales still in possession. It has referred also to other circumstances such as the connection between the plaintiff and P.W. 2, as indicating that the two have combined to defeat the two auction purchasers attempts to get possession. But that, if true, is not material at present. For the only issue is whether plaintiff s retention of possession however effected, is inconsistent with her having been damnified by the two Court sales, which have occurred. It is urged that the Lower Appellate Court s consideration of the case was defective because, though the grounds, on which damages are claimed, were in no way defined or limited in the plaint, it regarded the continuance of plaintiff s possession to the date of suit as decisive and did not deal with plaintiff s right to compensation on account of (1) the future determination of her possession, which the Court sales would entail in the ordinary course (2) their effect on her title to the property. These two claims are differently founded and call for separate discussion. Apart from that however, the cases, Puthi Narayanamurthi v. Marimuthu Pillai (1883) 11 Q.B.D. 695 and Pundi Doraisami Tevar v. Lakshmana Chetty (1811) 1 M. &. Section 53, on which defendants mainly rely as showing that the suit is premature, are irrelevant. For they relate to the right of action on contracts to discharge a promisee s debts and there is no analogy between the event, in which the promisor in them would become liable, the discharge by the promisee under compulsion and the grounds alleged for defendant s liability in the present case.

(3.) First as to the cause of action alleged as arising in respect of the future determination of plaintiff s possession. There is, for all that appears, no doubt that the auction purchasers may still claim delivery through Court, oust P.W. 2 and determine that they have done so or taken any step in that direction. No Indian authority has been shown for the opinion that Judicial recognition of a stranger s right to possession or anything short of actual disturbance of it by him justifies a claim to damages ; and that opinion was negatived in Howard v. Maitland (1904) 14 M.L.J. 245, a decision which is in point, though the claim was made on a covenant for quiet enjoyment. Plaintiff s claim so far as it relates to the enjoyment, past or future, must be held premature.