BALARAM JAIRAM PATIL Vs. KEWALRAM

JUDGEMENT

(1.) THIS is a plaintiff's appeal from a judgment of the Additional District Judge, Balaghat, delivered on 10th October 1936 in Civil Appeal No. 24-A of 1935 whereby the original Court's decree was reversed and the suit dismissed. One Kisanji died in 1918 survived by his widow Mt. Sita. At his death Kisanji owned 2 annas 8 pies proprietary share with appurtenant sir land in pattis Nos. 1 and 3 of mouza Paonera, district Balaghat. Patti No. 1 represented 8 annas share of the whole village and patti No. 3 was joint. In these pattis, the appellant and his brother Surajmal had each ?rd share. Kisanji's share including sir land devolved on his widow Mt. Sita who in 1923 on receipt of purchase money delivered possession of the proprietary shares to Sitru Patel the deceased father of respondents 1 to 3 and 7 grandfather of defendants and got his name mutated in the revenue record in pursuance of a contract of sale concluded between the parties. On 18th January 1927 she surrendered her exproprietary occupancy lands. She died in 1928. The appellant and his brother Surajmal (since deceased) were the reversionary heirs to Kisanji. The appellant instituted the suit out of which this appeal arises for possession of 1/2 share in the property transferred as stated above, as his brother Suraj-mal's sons declined to join in the claim for their half share. The suit was contested on several grounds among which those that are material for the decision of this appeal were (1) that the plaintiff was debarred from challenging the sale in favour of Sitru by reason of the judgments in Civil Suit No. 333 of 1927 and Civil Suit No. 181 of 1932; (2) that the sale was justified by legal necessity for the reason that the purchase money was devoted to the satisfaction of debts borrowed by Kisanji, the seller's husband; (3) that the transferees were in equity entitled to subrogation; and (4) that though the sale was not effected by a registered instrument, it became operative by virtue of the doctrine of part performance.

(2.) THE lower Appellate Court dissenting from the Court of first instance held that the decision in Civil Suit No. 184 of 1932 operated as res judicata to debar the plaintff from questioning the binding character of the widow's transfer. It found that legal necessity was proved to the extent of Rs. 1100 out of Rs. 1500 which was the consideration for the sale. As however it was of opinion that the doctrine of part performance could not be invoked to cure the formal defect in the sale, it held that the sale was void ab initio and that the defendants were rank trespassers. It, therefore, decreed the plaintiff's claim in respect of the joint share in patti No. 3, notwithstanding the proof of legal necessity and the defendants' equitable right of subrogation, but dismissed it in respect of the proprietary share of patti No. 1 and the sir land comprised in it on the ground that the plaintiff's suit was barred by res judicata.

(3.) THE appellant contends that in the suit for village profits, he was in the position of an agent vis-a-vis the defendants and that, in view of Yadgar Husain v. M.E.R. Malak ('36) 23 AIR 1936 Nag 71 he was estopped from denying their title and that at all events the defendants being admittedly proprietors otherwise than as purchasers, their suit for profits could not be defeated and further that his admission there would only render the decree for village profits binding on him but could not destroy his substantive right to claim possession of the corpus which he could exercise at any time he chose to do. The respondents on the other hand rely on Section 11, Expln. 4, Civil P.C., and also contend that the appellant's admission of their title signified their consent to Sita's sale and that they made their election in favour of approbation: having consented to it and having once approbated it they cannot lawfully retract and reprobate it. As to the plea of estoppel, the cited case, i. e., Yadgar Husain v. M.E.R. Malak ('36) 23 AIR 1936 Nag 71 cannot lend assistance to the appellant in view of the rule enunciated in the following words at p. 211: An agent like a bailee is estopped from setting up jus tertii against his principal, unless he defends for or with the authority of the tertius.