RADHIKA MOHAN MUNSHI Vs. SUDHIR CHANDRA SANYAL

JUDGEMENT

(1.) This appeal has arisen out of a suit for recovery of Rs. 1,174-14-0 claimed as arrears of monthly allowance on a deed of annuity with interest. The deed was executed by one Radharaman Munshi whose estate has now devolved upon the defendant according to a will made by him. The deed was executed in 1298 in favour of Harish Chandra Sanyal and his brother Ramesh Chandra Sanyal. Harish has married the daughter of Radharaman. Harish's wife died before the date of the deed leaving two minor daughters. Harish married again and had two sons of whom plaintiff 1 is one and plaintiff 2 is the widow of the other, while plaintiff 3 is the brother of Harish. By the annuity deed Radharaman granted an allowance of Rs. 25 per month to Harish and Ramesh and to their heirs and made the amount charge upon some of his properties. Plaintiff 1 and plaintiff 3 and the two beneficiaries under the deed brought the suit alleging that the allowance for the period from Baisak 1332 to Ashar 1335 is in arrears and they prayed for a decree for the amount claimed chargeable on two of the properties left by Radharaman. The defence is that this deed of annuity is void for want of consideration and that the conditions on which the annuity was granted were not fulfilled. In the trial Court it was held that the plaintiffs were not entitled to enforce the charge inasmuch as it had not been shown that the bond had been properly attested and inasmuch as all the properties out of which the payment was to be made were not included in the plaint. But the Court held that the plaintiffs were entitled to recover the amount out of the assets of the deceased Radharaman which came into the hands of the defendants. The lower appellate Court, on appeal, held that the defendant was not personally liable but was liable only to the extent of those properties which were made liable for such payment by the will. But the learned Judge held that the plaintiffs were entitled to realise the decretal amount out of the assets in the hands of the defendant left by Radharaman except those which were exempted by the annuity deed and the will, namely, from Dihi Damdighi, Lot Bishnupur, Satingram, Lot Nowadaboga, Lot Nimarpur, Dihi Ulipurrand, Dihi Rajapur.

(2.) In this appeal the points urged are, (1) that since the trial Court found that no decree declaring a charge could be passed and there was no appeal against that part of the decree it was not proper for the lower appellate Court to find that the decree could be enforced against the defendant by a charge and that since the lower appellate Court found that there was no personal liability of the defendant, the suit should have been dismissed. The other points raised were that Section 25, Contract Act, does not apply inasmuch as the parties were not standing in a near relationship to each other and that otherwise there was no consideration. It is clear from the terms of the bond that there was consideration. The consideration was the condition that the donees would keep the grand-daughters in the custody of their maternal grand-father until they were married and that they would reside in the village and it is stated that the donor gave the annuity out of the love and affection which he bore to the plaintiff Harish as his son-in-law and the husband of his only daughter. There can be no doubt that the relationship contemplated by Section 25, Contract Act, existed. It remains then to be considered whether, when the trial Court had found that no decree declaring a charge could be passed and when there was no appeal preferred against this part of the trial Court's decision, the lower appellate Court was entitled to decree the suit making the arrears of allowance realisable as a charge upon the properties. On the one hand it is contended that the Court was entitled to pass such an order under the provisions of Order 41, Rule 33, Civil P.C., which lays down that the appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require and that this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection.

(3.) The contention here is that because there was no cross-objection in the lower appellate Court to the finding of the trial Court that the amount was not realisable as a charge, the lower appellate Court had no right to decree the suit declaring a charge upon the properties. It is clear from the plain wording of the Section that it is quite competent in a case like this for the appellate Court to make the order that has been passed. But it is urged that there are a number of decisions to the effect that the power given to the Court under Order 41, Rule 33 can only be applied in certain limited cases and that it was only when the lower Court had passed a decree in favour of the appellant that an order under Order 41, Rule 33 can be passed. This contention is supported by the decision in Gangadhar Muradi V/s. Banabasi Padihari AIR 1914 Cal 722, where it is stated that although the language of Rule 33, Order 41, Civil P.C., is widely expressed, ordinarily the exercise of the power conferred thereby should be limited to cases where, as a result of the appellate Court's interference in favour of the appellants, further interference is required to adjust the rights of the parties in accordance with justice, equity and good conscience. To the same effect is the decision in Abjal Majhi v. Intu Bepari AIR 1916 Cal 250.