S.C.R.

SUPREME COURT REPORTS 75

SHETH MANEKLAL MANSUKHBHAI

MESSRS. HORMUSJI JAMSHEDJI GINWALLA

AND SONS.

[SAIYID F AZL ALI, MEHR CHAND MAHAJAN and

MUKHERJEA JJ.]

Transfer of Property Act (IV of 1882), s. 58-A-Agreement to lease evidenced by co1respondence-Lessee put in possession-Acceptance of rent for several years-No regiatered lease deed-Suit for ejectment of lessee as trespasser-Maintainability-Doctrine of partperformance.

The predecessor in interest of the defendant, behig desirous of putti~ up a factory in certain plots of land situated within a Taluqdari estate which was under the management of the Government under the Gujarat, Taluq<lars Act, 1888, applied in writing to the Taluqdari Settlement Officer for a perm1.uent lease of the plots. The Taluqdari Officer agreed to grant a lease on certain tar.ms subject to the sanction of the Government and forwarded a letter to the Government stating the offer to take the plots on lease, his provisional acceptance of the slime sub- . ject to the sanction of the Government and the terms of the lease and by a Resolution dated 5th September, 1917, the Government granted the sanction.

The defendant's predecessor was put in possession and though a formal lease deed was not executed and registered, the Taluqdari Officer and after the release of the estate by the Government, the agent of the taluqdar, and the plaintiffs who came in as ijaradars. continued to receive the agreed rent up to 1932.

In 1933 the plaintiffs instituted a suit to eject the defendant alleging that be was a mere trespasser as there was no registered lease deed :

lield, that the correspondence which passed between the defendant's predecessor-in-title and the Taluqdari Officer, the Jetter sent by the latter to the Government, and the Resolution of tbe Government dated 5th September, 1917, proved that there was a contract in writing to grant a lease on the terms stated in the Taluqdari Officer's letter, and as the defenda-nt's predecessor wa~ put in possession in furtherance of this contract and the rents agreed upon were accepted for several years, s. 53-A of the Transfer of Property Act was applicable to the case and the plaintiffa were not entitled to eject the defendant.

Judgment of tbe Bombay High Court reversed.

March l.

19.'50 APPEAL from the High Court of Judicature at Bom-

Sheu. M""'lrlal bay: Appeal No. XXXVII of 1949.

Man:sukhbhai This was an appeal from a judgment and decree of •· n the Bombay High Court dated 9th March, 1943, in

M~sJrs. hord .. Second Appeal No. 717 of 1940, varying the decree of musi• ams e 'J• h A J d Ah d b d GillwaUa and t e ss1stant u ge, me a a , m Appeal No. 173 sons. of 1936 reversing the decree of the joint Sub-Judge, Ahmedabad, in Suit No. 830 of 1933.

R.J. Thakur, for the appellant.

Nanak Ohand Pandit, (Diwan Oharanjit Lal, with him), for the respondents.

1950. March 21. The judgment of the Court was de- Iiver.ed by

Mahajan}.

MAHAJAN J.-This is an appeal from the judgment and decree of the High Court of Bombay dated 9th March 1943, and made in Second Appeal No. 717of1940 varying the decree of the Assjstant Judge, Ahmedabad, in Appeal No. 173 of 1936 reversing the decree of the Joint Sub-Judge, Ahmedabad, in Suit No. 830 of 1933.

The suit out of which this appeal arises was filed by the respondent firm in ejectment to recover possession of survey Nos. 222, 223, 225 and 226 situate in Rampura in Ahmadabad district and for mesne profits, as early as July, 1933, and during its 17 years' span of life it had a somewhat chequered career. Those responsible for drawing up the pleadings did not take pains to comprehend correctly as to what they were about and the whole litigation was conducted in a slovenly and slipshod manner. Evidence which should have been produced at the beginning was allowed to be produced at a much later stage after the case went back on remand and the suit was determined by the Assistant Judge on fresh issues and fresh materials.

It was in this confused state of the record that it vrns eventually decided by the High Court and its judgment is by no means satisfactory. The long time take in deciding the suit which involved determination of a few simple issues is such as is calculated to bring into ridicule the administration of justice.

. There is a talukdari estate called the Bnankoda 1960 estate in Viramam taluka in Ahmedabad district. It d b 1 1 kd ff Sheth Mandlal is jointly owne y severa ta u ars in di erent ManSt•khbhai shares and comprises twelve villages one of which is v.

Rampura in which the suit lands are situate. By Messrs. Hor- Government Resolution No. 8179, dated 30th August mus;; Jamshedii 1912, the estate was taken under Government manage- Ginwalla and ment under section 28 of the Gujarat Talukdars Act Sons. (Bombay Act VI of 1888). The firm of Shah Manila} Mahajan J.

Maganlal and Bros. (predecessors in interest of the appellant) desired to erect a ginning factory on survey Nos. 223, 225, and 226 and with thatobject approached the Talukdari Settlement Officer for a permanent lease of these survey numbers., The said officer agreed to grant a lease subject to sanction of Government. By Resolution No. 10795of1917 dated 5th September, 1917, the Government of Bombay granted the requisite sanction.

Exhibit 181 is a certified copy of the letter from the Chief Secrtary to Government to the Commissioner and to the Talukdari Settlement Officer and in detail it mentions the varfous steps taken to effect the transaction.

On 9th December 1916 an application was made by Shah Manilal Maganlal in writing signed by him to the Talukda.ri Settlement Officer offering to take a permanent lease of the abov1i mentioned survey numbers on an annual rental of Rs. 290 for the purpose of erecting a ginning factory. On rnth July, 1917, the said officer accepted provisionally this offer after taking in to consideration the objections raised by some of the talukdars in respect of the grant of a lease. He submitted the papers to government with the following recommendations :-

"As the petitioner was in urgent need to start operations during the current ginning season I have in anticipation of Government sanction permitted him to enter upon the land and have the honour to approach you for sanction under seQtion 27 (A) of the Court of Wards Act, the provisions of which have been made applicable to Talukdari Estates by section 29 (G) of the Gujarat Talukdars Act."

19!50

Sheth Maneklal

Mansrlkhbai

•• Messrs. Hor musji Jamshedji

Ginwalla and

Sons.

Maliajan J,

The conditions of the lease agreed upon by the parties were annexed with this letter and a copy of the offer was also sent to Government. Ex. 181 recites the contents of the offer and states the undertaking given by the lessee. There is intrinsic evidence within its con ten ts to show that these writings were signed by the proposer.

The Talukdari Settlement Officer in a signed writing accepted the offer and sent it for Government sanction.

It further appears that he communicated his acceptance to the lessee and agreed to give a lease if Government gave sanction.

The survey numbers in question were in possession of tenants and it was agreed that the lessee would take possession after making private settlements with them. It was also agreed that if no such private arrangement could be made, then the settlement officer would take steps to issue ejectment notice against the tenants. On 20th July, 1917, the Commissioner forwarded the papers to Government with his recommendations and the Government on 5th September, 1917, sanctioned the arrangement agreed to by the Talukdari Settlement Officer with Shah Manila! Maganlal.

The sanction order is signed by the Chief Secretary to the Government and it contains an endorsement of its having been sent to the officers concerned. It is thus clear that a binding agreement to lease the survey numbers in question was effected between the Talukdari Settlement Officer and Shah Manila! Maganlal with the sanction of the Government.

Though a draft of a formal deed of lease was prepared, no such document was formally executed or registered for reasons which it is not necessary to state herein.

Soon after the agreement the lessee took possession of the survey numbers in suit and put up thereupon a ginnin'g and a pressing factory, a bungalow, engine rooms and other structures. He tendered the agreed rent to the Talukdari Settlement Officer who re.l)ejved it from him.

He continued receiving it for about two years when the estate was released from the management of the Government and came under the management of the talukdars. The manager appointed by the talukdars continued to receive rent from the lessee as had been settled by the Talukdari Settlement Officer.

\ I

On 4th May, 1924, a pe>ssessory mortgage of the ginn 1960 ing factory along with all its buildings 'Yas effected by Sltdh Maneklal Shah Manila! Maganlal in the sum of Rs. 1,40,000 in Mansukhbltai favour of the defendant. The mortgage included in v. the schedule of the mortgaged property some other pro- Mesrs. Hor- . perty as well.

The two contestants in the suit, the '"""'' Jamslzed1• d f d d h I . t'ff . d h . . ht .

Gmwa/la and e en ant an t e p arn 1 s, acqmre t eir ng s m sons. this property during the years 1924-25.

The defendant came in as a mortgagee as above stated, while the Mahajan J. plaintiffs came in as ijaradar and assignee of certain mortgage rights.

The pla.intiffs since then have been receiving the rent according to the grant made by the Talukdari Officer. In the year 1933 the appellant purchased the equity of redemption of the suit property at a court auction and became vested with all the rights of Manila! Maganlal in this property, the value of which has now been estimated in the neighbourhood of Rs. 38,000.

In the year 1933 the plaintiffs discovered that the defendant had no registered lease in his favour and therefore in law he was not entitled to the rights of a permanent tenant in respect of the survey numbers in dispute.

They therefore instituted the present suit for ejectment of the defendant. In the 2nd and 3rd paragraphs of the plaint it was admitted that in the course of the correspondence with the Government of Born bay a lease was negotiated between the firm of Shah .Manila!

Magan Jal and the Talukdari Settlement Officer in respect of the survey numbers in dispute for a period of fifty years at an annual rental of Rs. 290, but it was Rtated that because Mani I al Maganlal did not execute a formal registered lease they were in possession rs trespaRsers.

Tu the 4th paragraph the authority of t.he Ta I nkdari Settlement Officer to grant the let1se wa<; also rha llenged.

In the 8th paragraph it was se id that the pin intiffs received the amount of the lease up t£) :Hst , July 1932 and that no notice was necessary to be given, the position of the defendant being that of a tre;; passer It was however alleged that a notice was given on 25th December 1930.

19ll0

Shth Maneklilal

lifansukhbliai

v. 1\fcs.srs, Hor- 1n11sji Jatnslredji

Ginwalla anrl

Sons.

The suit was defended on a number of grounds, inter alia, it was pleaded that the plaintiffs had no right to sue in ejectment, not being the landlord inasmuch as they had not obtained any right in the land itself and had not acquired complete title by an assignment of the whole of the interest of the talukdars in the survey numbers in dispute. It was pleaded that the defendant was a permanent tenant of the survey numbers and that the plaintiffs' own conduct debarred them from claiming ejectment.

The trial Judge decreed the suit on the finding that as no written lease was forthcoming it'should be deemed to be non-existent. It was said that no efforts had been made to show that the Settlement Officer had sanctioned with the approval of the Government a permanent lease in respect of survey Nos. 223 and 225 to Shah Manila! Maganlal. In the concluding part of the judgment it was remarked that the doctrine of equitable part performance could not apply to the present case. Though no specific issue was raised on this point, the matter seems to have been argued at some stage before the trial Judge on facts found or admitted. There was an unsuccessful effort to obtain a review of this decision on the ground of discovery of fresh materials. Thereafter the matter was taken to the court of appeal and it was alleged in ground No. 3 that the Subordinate Judge had erred in not considering the position created in the case by the equitable rule of law embodied in section 53-A of the Transfer of Property Act. On 30th July, 1938, the appellate court made an order of remand under Order XLI, Rule 25, and called for a report on the following two issues :-

(l) Whether the plaintiff was a mortgagee in occupation of S. Nos. 222, 223, 225 and 226?

(2) Whether the suit was bad for non-joinder of parties?

The trial Judge reported on the remand issues against the plaintiffs. He also admitted in evidence a number of documents produced after remand and one of these is Ex. 181. A point was raised that documents produced after remand were not relevant to the issues remanded

I ' !

' (

and should not be admit1; ed.

This contention was overruled. The Assistant , Judge aJlowed the appeal on .27th April, 1940. He held that the plaintiffs had failed to establish their right to maintain the suit either as ijaradars or as assignees of mortgage rights. In

19ll0

Sheth Maneklalij

Mansuklrbluzi

,\fes.rs. 1/o;- para. 21 of his judgment he observed as follows:- "'"sji Jamsliedji " Ex. 181 shows that the terms of the lease have Gi1rwalla and been reduced to writing though no regular lease &ms. appears to have been executed. On the question whether the lease is binding on the plaintiff, I think section 53-A of the Transfer of the Property Act is a complete answer. Ex. 181 shows that the Talukdari Settlement Officer, with the sanction of the Government, contracted to lease out thfe lands. The writing is . signed by the Government. The terms of the lease can be ascertained clearly from Ex. 181. It is not denied that the defendant's prede:cessor-in-title was put in possession of this property in performance of that contract. Also the acceptance by the Talukdari Settlement Officer as well as by 1he plaintiff of the rent of the property as fixed by that contract shows that the possession of the defendant and his predecessor-in-title was in part performance of the contract of lease.

Admittedly, there is no registered lease.

The conditions of section 53-A of the Transfer of Property Act arefully satisfied and the plaintiff cannot, therefore, eject the defendant on the ground that there is no registered lease."

Further on the learned Judge said that section53-A of the Transfer of Property Act embodied the doctrine of estoppel and a plea to that effect had been taken inasmuch as the defendant had pleaded that the plaintiffs were es topped by their conduct from asking for possession and that therefore no s:eparate issue was raised on this point.

The unsuccessful plaintiffs went up in second appeal against this decision to the High Court of Bombay.

The High Court allowed the appeal and modified the decree of the Assistant Judge. It decreed the plaintiffs' suit in respect of survEiy Nos. 223 and 225 and dismissed the suit in respect of survey Nos. 222 and 226.

Mahaja1' J.

195'> On the question of the plain tiffs' title to maintain the suit the High Court reached the following decision:- Sheth Maneklul

Man&ukhbal "If it were necessary we would hold that the v. plaintiff has sufficiently proved that it is entitled to Messrs. Ho,- maintain this suit in its capacity as ijaradar as well as ,,,...;; Jamshedfi assignee from the moi\tgagees. But we think even apart G.n'::a and from that, plaintiff is entitled to bring this suit because s. on the defendant's own admission he has paid rent to Mahajan J, the plaintiff for three of the suit fields, viz., survey Nos. 223, 225 and 226, and that too not the interest of 84 Dakdas in them but for all the 100 Dakdas. In fact, ever since the plaintiff came on the scene the defendant has treated the plaintiff as the landlord as regards these three survey numbers, and in the present suit, therefore, the defendant cannot dispute the plaintiff's right to sue."

In a later part of the judgment it was observed that in any case Ginwallaas the manager of the plaintiff firm would be entitled to continue the 'Present suit as receiver. On the second question the learned judges of the High Court observed as follows:-

" We do not think it necessary to decide whether if there had been a signed contract by the transferor in the present case, it would have fallen under section 53-A, because, in our opinion, the correspondence which is summarized in the Government Resolution cannot be regarded as evidence of the contract, and secondly, the terms of the contract also cannot be deduced from the correspondence with any reasonable Mrtainty. We, therefore, hold that the Government Resolution on which the defendant relies is no evidence of the writing

of a contract referred to in section 53-A of the Transfer 1 of Property Act, and apart from that thedefendant has : no legal basis on which he can claim to hold the land either as a permanent lessee or for a particular period." I

The principal questions canvassed in this appeal are, , whether the plaintiff firm has proved its title to main- I tain the present suit in ejectment against the defendant and whether the defendant is entitled to the benefit of the provisions of see. 53-A of the Transfer of Property Act. The question as to the maintainability of the suit

against the defendant without & proper notice was raised before the High Court but permission to argue it was refused because the matter had not been raised in either of the lower Courts.

19ll0

.Shells Manelllal

Jlonsukhbhai

The appeal was elaborately argued before us by the Messrs. Hor. learned counsel for the parties, but in our view, it is musji Jamshedji not necessary to consider and decide all the points urged Ginwauu a11d because we consider that the Assistant Judge was right Sons. in entertaining and giving effect to the plea under sec. 53-A of the Transfer of Property Act and we are satisfied that no substantial grounds existed for reversing that decision in second appeal. This section introduced in the Transfer of Property Act in 1929 is in these terms :-

"Where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty,

a~1d the transferee has, in part-performance of the contract, taken possession of the property or any part thereof ....... and has done some act in furtherance of the contract; ed the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that the contract, though required to be registered, has not been registered ....... . the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contraet ........ ".

The section is a partial importation in the statute law of India of the English doctrine of part performance. It furnishes a statutory defence to a person who has no registered title deed in his favour to maintain his possession if he can prove a written and signed contract in his favour and some action on his part in part-performance of that contract. In order to find whether the defendant in the present case has satisfied the conditions of the

Mahcja11 J.

1950 section, it has to be held proved that the Talukdari Settlement Officer contracted to give a lease of the Theth Mandia!

Mansukhbai survey numbers in suit to Manilal Maganlal by a .,, writing signed by him and that from this writing the Mmn. Hor terms of the tenancy can be ascertained with reasonable mus;• Jamshedii certainty. It has further to be held established that

Gintoalla and the transferee took possession of the property or did

s..... any acts in furtherance of the contract. It may be

Maha; an J. mentioned that in cases of lease the legislature has recognized that the equity of part performance is an active equity as in English Jaw 'and is sufficient to support an independent action by the plaintiff. (Vide S. 27 -A of the Specific Relief Act). This section however applies to contracts executed after 1st Rpril, 1930, and has no application in the present case; but there can be no manner of doubt that the defence under Section 53-A is available to a person who has an agreement of lease in his favour though no lease has been executed and registered.

We are satisfied that the defendant has fulfilled both the conditions necessary to attract the application of the section in the present case. The High Court was in error when it held that the correspondence summarised in Ex. 181 eould not be treated as evidence of the contract and that its terms could not be reasonably deduced from this document. It is no doubt true that Ex. 181 is merely secondary evidence of the agreement of lease but it is equally true that it is a very reliable piece of secondary evidence coming as it does from government records. It furnishes proof of the fact that there was an acceptance in writing under which the con tract to transfer the survey num hers in suit by way of lease was effected by the Talukdari Settlement Officer in favour of Manila!· Maganlal.

The offer was also in writing signed by the offerer.

The Government Resolution which made the agreement binding was also in writing and was signed by competent authority. No objection as to admission of secondary evidence could be taken in this case as tho primary evidence was in the possession either of the plaintiff or of the talukdars, the predecessors in interest and in spite of notice it was not produced. Reference in this connection may be made to the statement of the

plaintiff in the witness box which ie to the foUowing 19llO effect :-· Sheu. Mon11""1I "l must have read thecorrespondence with T.S.O.

Manaullbhoi since it is so recited in the para. 2 of the plaint. I cannot v. say wheth~ that correspondence is in my office or with M~•· Hor .. the talukdare. I cannoteay without that correspond- "'';/;..f::a•1::.:.f'. ence as to whether T.S.O. has called survey No . . 226 · Som as Lalliti and hence the 1balukdars are not entitled to any income for it. I aleCI cannot say without that Maha/qn J. correspondence that the irents of survey Nos. 225 and 223 were fixed at Rs. 135 :11.nd R1t. 115 respectively and that Re. 45 were to be taken by way of sugar .... "

In another part of the 'same statement he said that the talukdars had got the records of the time preceding his D1anagement. It appears that the original documents were returned to tho talukdars after the discharge of the Talukdari SettlemEint Officer and were in the possession and power of the plaintiff or his predecessors in interest and they were not produced by him in spite of notice. Para. 2 of the plaint clearly recites that there was correspondence between the Talukdari Settlement Officer and the defendant's predecessor in interest under which a lease was negotiated. The plaintiff's knowledge of this correspondenoe and its contents is thus prima facie established and leads to the conclusion that it was in his possession or power and he has intentionally withheld it. Without.a perusal of this correspondence the facts recited in para. 2 of the plaint could not ha.Ye been mentioned in the plaint. Once it is held that Ex. 181 is good secondary evidence of the agreement of lease, there can then be no hesitation in holding that by an offer and an acceptance mad1~ in writing and signed by the respective parties an agreement was completed between the Talukdari Settlement Officer and the predecessor in interest of the defendant and that necessary sanction of t.he Government was also in writing signed by the officer concerned. It bas further to be held that the terms of the contract can be fairly deduced from the recitals of this document. The only in1portant clause with which we are concerned in the present case is as to the nature of the tenam}y. It is clearly recited therein

19llO

SINlh Maneklal Manaukhbhai

Mess. Hoy-. tlWsji }amshedji

GinwaUa and

Sons.

Mahajan}.

that the lease was to be of a permanent character and the terms as regards rental could be revisE'd after a period of fifty years.

The rent payable is recited in unambiguous terms in the document as Rs. 290 per annum.

It was not denied that the lessee took possession after this agreement was arrived at. It was argued that possession was taken before sanction of the Government was obtained in September, 1917. There is however no proof of this except a bare recital in the Talukdari Settlement Officer's letter to Government that he had permitted 'the defendant to enter on the land in anticipation of Government's sanction. As already pointed out, the possession was with the tenants and had to be taken after entering into an arrangement with them or by issuing notice to them. It is not possible to think that this could have happened in such a short space of time as elapsed between the middle of July and the beginning of September. In any case the factory could not have been built before the sanction of the Government was received. Not only did the lessee take possession in part-performance of the agreement but he offered the rent agreed upon and paid it not only to the Talukdari Settlement Officer but to all those who subsequently managed the interest of the talukdars in the survey numbers in dispute. The original lessee after having entered into possession of the property effected a mortgage of it in favour of the defendant. The defendant advanced a substantial sum on security of the pr.)perty to the lessee.

The equity of redemption was sold at an auction sale. The defendant and his predecessor in interest were willing to perform their part of the contract.

As a matter of fact, they have performed the whole of it. All t.lw.t r_emains to be done is the execution of a lease deed by the lessor in favour of the lessee and of getting it registered. The plaintiff in para. 6 of the plaint in unambiguous terms admitted that he received the amount of the lease up to 31st July, 1932, in respect of the survey numbers in dispute.

It is difficult to imagine what lease he was referring to in the absence of a registered deed of lease. It oould only mean the agreement of lease given in writing

and signed by the Talukdari Settlement Officer.

It is in pursuance of this agreement of lease that all the subsequent acts above mentioned were done.

It may also be observed that an agreement of lease creating a present demise but not registered is admissible under S. 49 of the Indian Registration Act as evidence of part performance and Ex .. 181 is secondary evidence of that agreement. A formed lease is not necessary to attract the application of S. 53-A of the Transfer of Property Act.

All that is required is that an agreement in writing signed by the transferor can be gathered from the evidence. The correspondence mentioned in Ex. 181 fully establishes that fact.

We are therefore of the opinion that the learned Assistant Judge rightly dismissed the plaintiff's suit and the High Court was in error in interfering with that decision in second appeal. The result therefore is that the appeal is allowed, the decision of the Assistant Judge restored and that of the High Court reversed.

The circumstances of the case are such that we would make no order as to costs. The defendant was at fault in not producing all the documentary evidence at the proper stage of the case and he has been enabled to - avail himself of the defence furnished to him under S. 53-A by reason of the admission in evidence after remand of Ex. 181, which though not properly admitted at that stage was not rejected by the High Court and could not be re1ected at the stage when .we dealt with the case.

Th~ parties are therefore left to bear their own costs throughout.

Appeal allowed.

Agent for the appellant : S. P. Varma.

Agent for the respondent : Ganpat Rai.

1-~ S C India/~8

Sheth Manek/a/

Mansukhbhai

Messrs. Hormusii Jamshtdji

Ginwalla and

Sons.

Mahajan].

75

SHETH MANEKLAL MANSUKHBHAI

HORMUSJI JAMSHEDJI GINWALLA

AND SONS

SAIYID F AZL ALI

MEHR CHAND MAHAJAN

MUKHERJEA JJ.

Transfer of Property Act

s. 58

5th September, 1917

s. 53

Transfer of Property Act

R.J. Thakur

Nanak Ohand Pandit

Diwan Oharanjit Lal

MAHAJAN

Rampura

Ahmadabad

Ahmedabad district

section 28

Bombay Act VI of 1888

Mahajan

Government of Bombay

9th December 1916

Shah Manilal Maganlal

rnth July, 1917

section 29

Sheth Maneklal

Maliajan

20th July, 1917

Shah Manila! Maganlal

Shah

Manila! Maganlal

4th May, 1924

Sltdh Maneklal Shah Manila! Maganlal

Mahajan

Manila! Maganlal

Government of Born bay

Shah .Manila!

Magan Jal

Mani I al Maganlal

Shah Manila! Maganlal

section 53

Transfer of Property Act

30th July, 1938

Sheth Maneklalij

Mansuklrbluzi

section 53

section 53

Transfer of Property Act

Transfer of Property Act

High Court of Bombay

Sheth Maneklul

Ginwallaas

section 53

section 53

Transfer of Property Act

Jlonsukhbhai

Ginwauu

sec. 53

Transfer of Property Act

Transfer of Property Act

India

Manilal Maganlal

Gintoalla

S. 27

Specific Relief Act

1st Rpril, 1930

Section 53

Manila

Maneklal Manaukhbhai

31st July, 1932

S. 49

Registration Act

S. 53

Transfer of Property Act

S. 53

S. P. Varma

Ganpat Rai

Sheth Manek

Hormusii Jamshtdji


SUI'REM:E COURT RE.PORTS (1950]

that the impugned statute does not stand the test of reasonableness and is therefore void.

Chi.'IJ-tama:n Rao

The result therefore is that the orders issued by the Tiu State of Depl, lty Commissioner on 13th June 1950 and 26th

Mndhya September 1950 are void, inoperative and ineffective.

Prad•.••· We therefore direct the respondents not to enforce the

M, ah.ajan J.

Nov. li.

provisions contained in section 4 of the Act agan.st the petitioners in any manner whatsoever. The pet1ttone>s

will have their costs of these proceedings in the two petitions.

Agent for the petitioners Rajinder Narain.

Petitions allowed.

m Nos. 78 and 79:

Agent for the respondent m

P.A. lv/hta.

RAM GOPAL

II.

Nos. 78 and 79:

NAND LAL AND OTHERS

[SAIYID FAZL Au, MUKHERJEA and CHANDRA-

SEKHARA AIYAR JJ.]

Hindu Law-Gift to female owner-Construction-Gift for maintenance-Estate conveyed, whether absolute or limited-Use of

the word 'Malik', effect of. ·

In construing a document whether in English or in vernacular the fundamental rule is to ascertain the intention from the words used; the surrounding circumstances are to be considered but tbat is only for the purpose of finding out the intended meaning of the words which have actually been employed.

To convey an absolute estate to a Hindu female, no express power of a.lienaticn need be given ; it is enough if words of such amplit11de are used as would convey full rights of ownership.

The term 'Malik' when used in a will or other document as descriptive of the position which a. devisee or donee is intended to hold, has been held apt to describe an owner possessed of lull proprietary rights, including a. full right of alienation, unless there is something in the context or in the surrounding circumstances to indicate that such f11ll 11roprietory rights were not intended to

be conferred,

The mere fact that • gift of property is made fot the Bupport and maintenance of a female relation could nob be taken to be a prima facie indication of the intention of the <loner, th.t the donee was to enjoy the property only during her life-time. The extent of interest, which the donee is to take, depends upon tha intention o( the donor as expressed by the language used, and if the dispositive words employed in the document are clear and unambiguous and import absolute ownership1 the purpose of ihe grant would not, by itself, restrict or cut down the interest. The desire to provide maintenance or residence of the donee would only show the motive which prompted the donor to make the gift, but it could not be read as a measure of the extent of the gift.

Where a Hindu died leaving two widows, a widowed daughter in-law and a daughter's son, and a relative of the family sating as guardian of the daughter's son's son who was then the nearest reversioner got a. relinquishment deed fiom the daughter-in-law r'3nouncing all her claims to the estate and in return executed a deed of ' tamliknama' to her with respect to certain properties which ran as follows:

11 I have therefore, of my own accord and free will, without any compulsion or coercion on the part of any one else while in my proper senses made a Tamlik of a double-storied pucca built shop ......... and & house and a kothri in Etawah ......... worth Rs. 8,000 for purposee of rasidence of the Musammat (the daughter-in-law) owned by the minor aforesaid ......... which at preaent stands let out on rent to Sunder Lal, brother of Mst. Meri a aforesaid ........ .in favour of Mst, Meria aforesaid, widow of Ohhedi Lal and made her the owner (Malik) ":

Held, that there was nothing in the context of the document or in the surrounding circumetances which would displace the presumption of full proprietory rights which the use of the words Malik' is apt ordinarily to convey and the daughter-in-law obtained under the gift deed a full heritable and transferable title to the properties conveyed thereby.

Rajendra Prasad v. Gopal Pra•ad (57 I.A. 296), Koliani Koer

v. Luchmee Parsad (24 W.R. 395), Tagore v. Tagore (I.A. Supp. 4 7) Sasiman Chaudhur<>in v. Shib Narayan (49 I.A. 25), Biswanath Prasad v. Chandrika (60 I.A. 56) relied on.

Raja Ram Baksh v. Arjun (60 I.A. 56), Woodayaditta Deb v.

Mukoond (22 W.R. 229) distinguished.

APPELLATE juRISDICTION: Civil Appeal No. LIX of 1949.

Appeal from the judgment of the Allahabad High Court (Verma and Yorke JJ.) dated 6th September,

1943 in First Appeal No. 3 of 1940.

P. L. Banerjee (B. Banerjee, with him), for the appellant.

J!lliO

Ram Gopa.l v.

Na.nd Lat and

Othe1~.

Ram Gopal

Nana. Lal and

Others.

JluleherjtJ'.l J.

S. P. Sinha (N. C. Sen, with him), for the respondents.

1950. November 14. The court delivered judgment as follows :- M uKHERJEA ].-This appeal is directed against an appellate judgment of a Division Bench of the Allahabad High Court dated September 6, 1943, by which the learned Judges reversed a decision of the Civil Judge, Etawah. made in Original Suit No. 28 of 1936.

The suit was one commenced by the plaintiff, who is respondent No. 1 in this appeal, for recovery of possession of two items of immovable property-one, a residential house and other, a shop-both of which are situated in the town of Etawah.

The properties admittedly formed part of the estate of one Mangat Sen who died sometime towards the end of the last century, leaving behind him, as his heirs, his two widows, Mst. Mithani and Mst. Rani.

Mangat Sen had a son named Chhedi Lal and a daughter named Janki Kuar born of his wife Mst. Rani, but both of them died during his lifetime.

Chhedi Lal had no issue and he was survived by his widow Mst. Meria, while J anki left a son named Thakur Prasad. J anki's husband married another wife and by her got a son named Babu Ram. On Mangat Sen's death, his properties devolved upon his two widows, and Mst. Rani having died subsequently, Mst. Mithani came to hold the entire estate of her husband in the restricted rights of a Hindu widow.

On 27th November 1919, Mst.

Mithani surrendered the whole estate of her husband by a deed of gift in favour of Thakur Prasad who was the nearest reversioner at that time. Thakur Prasad died in 1921, leaving a minor son named Nand Lal who succeeded to his properties and this Nand Lal is the plaintiff in the suit out of which this appeal arises.

On 27th October 1921, there was a transaction entered into between Babu Ram on his own behalf as well as guardian of infant Nand Lal on tlie one hand and Mst. Meria, the widow of Chhedi Lal, on

the other, by which two items of property which are the subject-matter of the present litigation were conveyed to Meria by a deed of transfer which has been described as a Tamliknama; and she on her part executed a deed of relinquishment renouncing her claims to every portion of the estate left by Mangal Sen. It is not disputed that Meria took possession of the properties on the basis of the Tamliknama and on 10th April 1923 she executed a will, by which these properties were bequeathed to her three nephews, who are the sons of her brother Sunder Lal. Meria died on 19th June 1924.

One Ram Dayal had obtained a money decree against. Sunder Lal and his three sons, and in execution of that decree the properties in suit were attached and put up to sale and they were purchased by Ram Dayal himself on 30th January

1934. On 1st June 1936, the present suit was instituted by Nand Lal and he prayed for recovery of possession of these two items of property on the allegation that as they were given to Mst. Meria for her maintenance and residence, she could enjoy the same only so long as she lived and after her death, they reverted to the plaintiff. Sunder Lal, the brother of Meria, was made the first defendant in the suit, and his three sons figured as defendants Nos. 2 to 4.

Defendant No. 5 is a lady named Chimman Kunwar in whose favour Sunder Lal was alleged to have executed a deed of transfer in respect of a portion of the disputed property.

Ram Dayal, the decree-holder auction purchaser, died in May 1935 and his properties vested in his daughter's son Ram Gopal under a deed of gift executed by him in favour of the latter.

On 1st September 1938, Ram Gopal was added as a party defendant to the suit on the plaintiff's application and he is defendant No. 6. The two other defendants, namely, defendants 7 and 8, who were also made parties at the same time, are respectively the widow and an alleged adopted son of Ram Dayal.

The suit was contested primarily by defendant No. 6, and the substantial contentions raised by him in his written statement were of a two-fold character.

Ram GopaZ

Nana. Lal and

Othera.

Mukherjea J.

Ram Gopal

Na.nd Ltil and

Ot1uw&.

Mukh11rjea J.

The first and the main contention was that Mst. Meria got an absolute title to the disputed properties on the strength of the 'Tamliknama' executed in her favour by the guardian of the plaintiff and after her death, the properties passed on to the three sons of Sunder Lal who were the legatees under her will.

Ram Dayal, it was said, having purchased these properties in execution of a money decree against Sunder Lal and his three sons acquired a valid title to them. The other contention raised was that the suit was barred by limitation. The trial Judge decided both these points m favour of the contesting defendant and dismissed the plaintiff's suit. On appeal to the High Court, the judgment of the Civil Judge was set aside and the plaintiff's suit was decreed.

The defendant No. 6 has now come up on appeal to this court and Mr. Peary Lal Banerjee, who appeared in support of the appeal, pressed before us both the points upon which the decision of the High Court has been adverse to his client.

The first point raised by Mr. Banerjee turns upon the construction to be placed upon the document executed by Babu Ram on his own behalf as well as on behalf of Nand Lal then an infant, by which the properties in dispute were transferred to Mst. Meria by way of a 'Tamliknama'. The question is whether the transferee got, under it, an absolute interest in the properties, which was heritable and alienable or was it the interest of a life tenant merely.

The document is by no means a complicated one.

It begins by a recital of the events under which Nand Lal became the sole owner of the properties left by Mangal Sen and refers in this connection to the obligation on the part of both Babu Ram and Nand Lal to "support, maintain and console" Mst. Meria, the widow of the pre-deceased son of Mangal Sen.

The document then proceeds to state as follows :

"I have therefore, of my own accord and free will, without any compulsion or coercion on the part of any one else while in my proper senses made a Tamlik of a double-storied pucca built shop ...... and a house

and a kothri in Etawah ......... worth Rs. 8,000 for 19•0 purposes of residence of the Musammat, owned by the minor aforesaid ...... which at present stands let out on Bam Gopa.1

v. rent to Sunder Lal, brother of Mst. Meria aforesaid ......... in favour of Mst. Meria aforesaid, widow of Chhedi Lal and made her the owner (Malik). If any portion or the whole of the property made a Tamlik of for the purpose mentioned above passes out of the possession of the Musammat aforesaid on account of the claim of Nand Lal minor aforesaid, I and my property of every sort shall be responsible and liable for the same."

Nand Ji.al and

This document has got to be read along with the deed of relinquishment, which is a contemporaneous document executed by Meria renouncing all her claims to the property left by Mangal Sen. The deed of relinquishment like th<i Tamliknama recites elaborately, with reference to previous events, particularly to the deed of gift executed by Mst. Mithani in favour of Thakur Prasad, the gradual devolution of the entire estate of Mangal Sen upon Nand Lal. It states thereafter that Babu Ram, as the guardian of the minor and also in his own right, "has under a Tamliknama dated this day made a 'Tamlik' in my favour of a shop along with a Balakhana and a kota for my maintenance and a house ....... for purpose of my residence which are quite sufficient for my maintenance." "I have therefore, of my own accord", the document goes on to say, "made a relinquishment of the entire property aforesaid mentioned in the deed of gift ...... worth ls. 25,000.

I do covenant and do give in writing that I have and shall have no claim to or concern with the property ......... belonging to the minor aforesaid, nor has the property aforesaid remained subject to my maintenance allowance nor shall I bring any claim at any time." The schedule to the instrument, it may be noted, gives a list of all the properties of Mangal Sen in respect to which Mst. Mithani executed a deed of gift in favour of Thakur Prasad, including the two items of property covered by the 'Tamliknama' mentioned. aforesaid.

. . .r

Oth6TS.

Mukherjea J.

I 050

Ram Gopal

Nand Lal and

Others.

Mukktrjea J.

In construing a document whether in English or in vernacular the fundamental rule is to ascertain the intention from the words used ; the surrounding circumstances are to be considered, but that is only for the purpose of finding out the intended meaning of the words which have actually been employed(')· In the present case the instrument of grant has been described as a 'Tamliknama ' which means a document by which 'Maliki ' or ownership rights are transferred and the document expressly says that the grantee has been made a ' Malik' or owner. There are no express words making the gift heritable and transferable; nor on the other hand, is there any statement that the transferee would enjoy the properties only during her life-time and that they would revert to the grantor after her death.

It may be taken to be quite settled that there is no warrant for the proposition of law that when a grant of an immovable property is made to a Hindu female, she docs not get an absolute or alienable interest in such property, unless such power is expressly conferred upon her.

The reasoning adopted by Mr. Justice Mitter of the Calcutta High Court in Kollani Koer v. Luchmee Parsad(') which was approved of and accepted by the Judicial Committee in a number of decisions, seems to me to be unassailable. It was held by the Privy Council as early as in the case of Tagore v. Tagore(') that if an estate were given to a man without express words of inheritance, it would, in the absence of a conflicting context, carry, by Hindu Law, an estate of inheritance. This is the general principle of law which is recognised and embodied in section 8 of the Transfer of Property Act and unless it is shown that under Hindu Law a gift to a female means a limited gift or carries with it the restrictions or disabilities similar to those that exist in a •widow's estate', there is no justification for departing from this principle.

There is certainly no such provision in Hindu Law and no text could be supplied in support of the same.

fl) Vide Brijendra Prasad v, Gopal Prasad, 57 I.A. 296,

12) H W, R, 395. (31 L.R.!, A. Supp. 47 at 65,

' -

The position, therefore, is that to convey an absolute estate to a Hindu female, no express power of alienation need be given; it is enough if words are used of such amplitude as would convey full rights of ownership.

Mr. Banerjee naturally lays stress upon the description of the document as •Tamliknama' and the use of the word ' Malik ' or owner in reference to the interest which it purports to convey to the transferee. The word ' Malik ' is of very common use in many parts of India and it cannot certainly be regarded as a techni. cal term of conveyancing.

In the language of the Privy Council, the term •Malik' when used in a will or other document " as descriptive of the position which a devisee or donee is intended to hold, has been held apt to describe an owner possessed of full proprietory rights, including a full right of alienation, unless there is something in the context or in the surrounding circumstances to indicate that such full proprietory rights were not intended to be conferred(')." This I think to be a perfectly correct statement of law and I only desire to add that it should be taken with the caution which the Judicial Committee uttered in course of the same observation that "the meaning of every word in an Indian document must always depend upon the setting in which it is placed, the subject to which it is related and the locality of the grantor from which it receives its true shade of meaning."

The question before us, therefore, narrows down to this as to whether in the present case there is anything in the context of these two connected instruments or in the surrounding circumstances to cut down the full proprietory rights that the word 'Malik' ordinarily imports.

The High Court in reaching its decision adyerse to the appellant laid great stress on the fact that the grant was expressed to be for maintenance and residence of Mst. Meria. This, it is said, would prima facie indicate that the grant was to enure for the lifetime of the grantee. It is pointed out by the learned

(l) Vide Sasiman Ohowdhuraif1. v 8hib Nar.'.iyaii, 49 I.A, '25, 85,

.. -

19!0

Ram Gopcil

Natid Lal and

Oth1rs.

Jfukhtr jea_ J.

Ram Gopal

Nand Lal and

Othe-rs.

.. \1ukherjea J,

Judges that the language of the document does not show that anybody else besides the lady herself was to be benefited by the grant and the indemnity given by Babu Ram was also given to the lady personally. It is further said that if Meria was given an absolute estate in the properties comprised in the 'Tamliknama' . there was no necessity for including these two properties again in the deed of relinquishment which she executed at the same time.

I do not think that the mere fact that the gift of property is made for the support and maintenance of a female relation could be taken to be a Prima facie indication of the intention of the donor, that the donee was to enjoy the property only during her life. time.

The extent of interest, which the donee is to take, depends upon the intention of the donor as expressed by the language used, and if the dispositive words employed in the document are clear and unambiguous and import absolute ownership, the purpooe of the grant would not, by itself, restrict or cut down the interest. The desire to provide maintenance or residence of the donee would only show the motive which prompted the donor to make the gift, but it could not be read as a measure of the extent of the gift.

This was laid down in clear terms by the Judicial Committee in a comparatively recent case which is to be found reported in BishunathPrasad v. Chandrika(').

There a Hindu executed a registered deed of gift of certain properties in favour of his daughter-in-law for the" support and maintenance" of his daughter-in-law and declared that the donee should remain absolute owner of the property (malik mustaqil) and pay Government revenue. There were no words in the document expressly making the interest heritable or conferring on the donee the power of making alienation.

It was held by the Judicial Committee that the donee took under the document, an absolute estate with powers to make alienation giving title valid after her death. In course of the judgment, Lord Blanesburgh quoted, with approval, an earlier decision of the

(1) 60 I.A. 56.

Judicial Committee, where the words "for your maintenance" occurring in a deed of gift were held insufficient to cut down to life interest the estate taken by the donees. These words, it was said, "are quite capable of signifying that the gift was made for the purpose of enabling them to live in comfort and do not necessarily mean that it was to be limited to a bare right of maintenance."

On behalf of the respondent, reliance was placed upon the decision of the Judicial Committee in Raja Ram Buksh v. Arjun(') in support of the contention that in a maintenance grant it is the prima Jacie in ten. tion of the gift that it should be for life. In my opinion, the decision cited is no authority for the general proposition as is contended for by the learned Counsel for the respondent, and it is to be read in the context of the actual facts of the case which relate to grants of a particular type with special features of its own. It was a case where a Talukdar made a grant of certain villages to a junior member of the joint family for maintenance of the latter. The family was governed by the Jaw of primogeniture and the estate descended to a single heir.

In such cases the usual custom is that the junior members of the family, who can get no share in the property, are entitled to provisions by way of maintenance for which assignments of lands are generally made in their favour. The extent of interest taken by the grantee in the assigned lands depends entirely upon the circumstances of the particular case, or rather upon the usage that prevails in the particular family.

In the case before the Privy Council there was actually no deed of transfer. It was an oral assignment made by the Talukdar, and the nature of the grant had to be determined upon the recitals of a petition for mutation of names made to the Revenue Department by the granter after the verbal assignment was made and from other facts and circumstances of the case. The case of Woodoya. ditta Deb v. Mukoond('), which was referred to and relied upon in the judgment of the Privy Council, was

(!) 28 I.A, I.

(2) 22 W, R. 229.

Rani Gopal

v, Nand Lal an4

Other~.

Mukherjea J.

Ram Gop:Jl

Nana. Lal and

Others.

Mukhtrjea J.

also a case of maintenance or khor phos grant made in favour of a junior member of the family, where the estate was impartible and descended under the rules of primogeniture. It was held in that case that such grants, the object of which was to make suitable provisions for the immediate members of the family, were by their very nature and also under the custom of the land resumable by the zemindar on the death of the grantee, as otherwise the whole zemindary would be swallowed up by continual demands. This principle bas obviously no application to cases of the type which we have before us and it was never so applied by the Privy Council, as would appear from the decision referred to above.

The learned Counsel for the plaintiff respondent drew our attention in this connection, to the fact that the properties given by the Tamliknama' were valued at Rs. 8,000, whereas the entire estate left by Mangal Sen was worth Rs. 25,000 only. It is argued that the transfer of nearly one-third of the entire estate in absolute right to one who was entitled to maintenance merely, is, on the face of it, against probability and common sense.

I do not think that, on the facts of this case, any weight could be attached to thfs argument. In the first place, it is to be noted that whatever might have been the actual market value of the properties, what the widow got under the Tamliknama was a residential house and a shop, and the shop was the only property which fetched any income. This shop, it appears, was all along in possession of Sunder Lal, the brother of Meria, and the rent, which he paid or promised to pay in respect of the same, was only Rs. 12 a month.

So from the income of this property it was hardly possible for Meria to have even a bare maintenance, and this would rather support the inference that the properties were given to her absolutely and not for enjoyment merely, so long as she lived.

But what is more important is, that the object of creating these two documents, as the surrounding circumstances show, was not merely to make provision

fur the maintenance of Mst. Meria ; the other and the more important object was to perfect the title of Nand Lal to the estate left by Mangal Sen and to quiet all disputes that might arise in respect of the same. It may be that Mst. Meria could not, in law, claim any. thing more than a right to be maintained out of the estate of her deceased father-in-law. But it is clear that whatever her legal rights might have been, Nand Lal's own position as the sole owner of the properties left by Mangal Sen was not altogether undisputed or free from any hostile attack. As has been said already, Sunder Lal, the brother of Meria, was in occupation of the double-storied shop from long before the Tamliknama was executed and Meria got any legal title to it. It appears from the record that in 1920 a suit was instituted on behalf of the infant N and Lal for evicting Sunder Lal from the shop and the allegation in the plaint was that Sunder Lal was occupying the property as a tenant since the time of Mst. Mithani by taking a settlement from her. Sunder Lal in his written statement filed in that suit expressly repudiated the allegation of tenancy and also the title of Nand Lal and openly asserted that it was Mst. Meria who was the actual owner of Mangal Sen's estate. The suit ended in a compromise arrived at through the medium of arbitrators and the result was that although Sunder

Lal admitted the title of the plaintiff, the latter had to abandon the claims which were made in the plaint for rents, costs and damages. Sunder Lal continued to be in occupation of the shop and executed a rent agreement in respect of the same in favour of Nand Lal promising to pay a rent of Rs. 12 per month. A few months later, the Tamliknama was executed and this shop along with the residential house were given to Meria in maliki right. The recitals in both the Tamliknama and the deed of relinquishment clearly indicate that the supreme anxiety on the part of . Babu Ram, who was trying his best to safeguard the interests of the minor, was to put an end to all further disputes that might be raised by or on behalf of Mst. Meria with regard to the rights of N and Lal to the properties

Rtt.m Gopal

Nana Laland

Othsra.

.l!ukherj•a J.

19~0

Ram Gopal

Nand Lal and

Others.

of Mangal Sen and to make his title to the same absolutely impeccable. That seems to be the reason why Meria was given a comparatively large portion of the properties left by Mangal Sen which would enable her to live in comfort and her interest was not limited to a bare right of maintenance. It is significant to note that the shop room, which was all along in possession of Sunder Lal, was included in this Tamliknama and soon after the grant was made, Sunder Lal executed a rent agreement in respect of the shop in favour of Mst. Meria acknowledging her to be the owner of the property.

It is true that the document does not make any reference to the heirs of Meria, but that is not at all necessary, nor is it essential that any express power of alienation should be given. The word " Malik " is too common an expression in this part of the country and its meaning and implications were fairly well settled by judicial pronouncements long before the document was executed. If really the grantee was intended to have only a life interest in the properties, there was no lack of appropriate words; perfectly well known in the locality, to express such intention.

The High Court seems to have been influenced to some extent by the fact that in the Tamliknama there was a guarantee given by Babu Ram to Meria herself and to no one else agreeing to compensate her in case she was dispossessed from the properties at the instance of Nand Lal. This covenant in the document was in the nature of a personal guarantee given by Babu Ram to Mst. Meria for the simple reason that the property belonged to an infant and it was as guardian of the minor that Babu Ram was purporting to act. It was too much to expect that Babu Ram would bind himself for all time to come and give a guarantee to the future heirs of Meria as weH. Probably no such thing was contemplated by the parties and no such undertaking was insisted upon by the other side.

But whatever the reason might be which led to the covenant being expressed in this particular form, I do not think that it has even a remote bearing on the

question that arises for our consideration in the present case. It is of no assistance to the plaintiff in support of the construction that is sought to be put upon the document on his behalf.

I am also not at all impressed by the other fact referred to in the judgment of the High Court that if the properties were given to Meria in absolute right, there was no necessity for including them again in the schedule to the deed of relinquishment which Meria executed. I fail to see how the inclusion of the properties in the deed of relinquishment would go to indicate that Meria's rights to these properties were of a restricted and not an absolute character. It is after all a pure matter of conveyancing and the two documents have to be read together as parts of one and the same transaction. Under the 'Tamliknama ', Meria got two properties in absolute right out of the estate of Mangal Sen. By the deed of relinquishment, she renoupced her claim for maintenance in respect of all the properties left by Mangal Sen including the two items which she got under the 'Tamliknama'. After the ' Tamliknama' was executed in her favour, there was no further question of her claiming any right of maintenance in respect of these two items of property. She became the absolute owner thereof in exchange of her rights of maintenance over the entire estate and this right of maintenance she gave up by the deed of relinquishment.

On a construction of the entire document, my conclusion is that there is nothing in the context of the document, or in the surrounding circumstances which would displace the presumption of full proprietary rights which the use of the word " Malik" is apt ordinarily to convey. The first contention of the appellant, therefore, succeeds and in view of my decision on this point, the second question does not arise for determination at all.

The result is that the appeal is allowed, the judgment and decree of the High Court are set aside and those of the trial Judge restored. The defendant No. 6 will have his costs from the plaintiff in all the courts. There will be no order for costs as regards the other parties.

Ram Gopal

Nand Lal and

Others.

llfukherjea J

1950 FAZL ALI J.-I agree with the judgment delivered

Ram Gopal by my learned brother, Mukherjea J.

CHANDRASEKHARA AIYAR J.-During the hearing of Nand Lal and the appeal I entertained doubts whether the view taken

Oth"' by the High Court was not correct. But on further consideration, I find that it cannot be maintained, having regard to the terms of the ' Tamliknama ' (deed of transfer) in favour of Musammat Meria and the context in which it came into existence. The name of the document or deed does not verv much matter.

Though the word 'malik ' is not a term of art, it has been held in quite a large number of cases, decided mostly by the Judicial Committee of the Privy Council, that the word, as employed in Indian documents, means absolute owner and that unless the context indicated a different meaning, its use would be sufficient to convey a full title even without the addition of the words, •heirs', or ' son ', 'grandson' and 'great ' grandson'. Of course, if there are other clauses in the document which control the import of the word and restrict the estate to a limited one, we must give the narrower meaning; otherwise the word must receive' its full significance. Especially is this so, when the rule of interpretation laid down in A1ohammed Shamsul

v. Sewak Ram(') has come to be regarded as unsound.

The language employed in the 'Tamliknama ' (Ex. II) is almost similar to the language of the deeds construed in Bhaidas Shivdas v. Bai Gulab & Another(') and Bishunath Prasad Singh v. Chandika Prasad Kumari and Others(') where it was held that an absolute estate was conveyed.

I agree that the judgment and decree of the High Court should be set aside and that the decree of the trial Judge should be restored with costs to the appellant in all the Courts. .

Appeal allowed.

Agent for the appellant: R.K.Kuba.

Agent for the respondents: S. P. Varma.

l~I '9 I.A. L

(8) 60 I.A. 66.

section 4

Rajinder Narain

RAM GOPAL

NAND LAL AND OTHERS

MUKHERJEA

SEKHARA AIYAR JJ.

Etawah

Sunder Lal

Meri

Meria

Ohhedi Lal

Malik

Allahabad High Court

Verma

Yorke

P. L. Banerjee

B. Banerjee

Ram Gopa.l

Ram Gopal

Nana. Lal

S. P. Sinha

N. C. Sen

Mangat Sen

Mithani

Rani

Chhedi Lal

Janki Kuar

J anki

Thakur Prasad

Babu Ram

27th November 1919

Mithani

Nand Lal

27th October 1921

Mangal Sen.

10th April 1923

19th June 1924

Ram Dayal

30th January

1934

1st June 1936

Chimman Kunwar

Ram Dayal

Ram Gopal

1st September 1938

Ram GopaZ

Mukherjea

Meria

Peary Lal Banerjee

Banerjee

Mangal Sen

Nand Ji.al

Mukktrjea

Mitter

Calcutta High Court

section 8

Transfer of Property Act

India

Ram Gopcil

Natid Lal

Ram Gopal

Nand Lal

Blanesburgh

Rani Gopal

Mukherjea

Mukhtrjea

Tamliknama

Lal

Sunder

Lal

Ram Gopal

Mangal Sen

Nand Lal

llfukherjea

1950 FAZL ALI

CHANDRASEKHARA AIYAR

Musammat Meria

R.K.Kuba

S. P. Varma


S.C.R.

SUPREME COURT REPORTS

SARJU PERSHAD

RAJA JWALESH\VARI PRATAP NARAIN

SINGH AND OTHERS [SAIYID F AZL ALI, MEHR CHAND MAHAJAN and

MUKHERJEA JJ.J

Practice-Appellate court-Finding of fact depending on credibility of witnesses-Interference-Correct principle.

When there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon tbe credibility of the witnesses, then unless there is some special feature a.bout the evidence of a particular witness which has escaped the trial judge's notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lies, the appellate court should not interfere with tho finding of the trial judge on a question of fact.

It would not detract from tbe value to be attached to a trial judge's finding or fact if the judge does not expressly base his conclusion upon the impressions he gathers from the demeanour of witnesses.

The rule is, however, only a. rule of practice and docs not mean that the court of first instance can be treated as illfallible in deterrnining which, side is telling the truth or is refraining from exaggeration. [Where the High Court reversed a finding of fact arrived &t by the trial court depending on oral evidence on the ground that the rule that the appellate court should be slow to differ from the conclusions arrived at by the trial judge who had seen and heard the witnesses did not apply to the case as the trial judge did not ba.se bis conclusions on the impressions created in hie mind by the witnesses who deposed before him, but upon the inherent impl'Obabi!ity of the circumstances deposed to, the Supreme Court held that the High Court's approach to the case was not proper and, alter weighing the whole evidence in the case, reversed the finding of the High Court.]

W. O. Macdonald v. Fred Latimer (A.LR. 1929 P.O. 15 at p.18), Watts v. Thomas ([1947] A.O. 484 at p. 486), Saraveeraswami

v. Talluri

(A.I.R.

1949 P. C. 32), Netherlandsche Handel Maatschappij v. R. M. P. Ohettiar Firm and Others (A.I.R. 1929 P.O. 202, 205), referred to.

APPELLATE JURISDICTION: Civil Appeal No. LXX of 1949.

Appeal from the judgment of the Allahabad High Court (Verma and Yorke JJ.) dated the 22nd April, 1943.

JOO

Nov. 1!.

t95o M. C. Setalvad, Attorney-General for India (Sri .- Narain Andley, with him), for the appellant.

SarJU Pershad L . (H j U 'th h' ) f th •.

P. . Banerjee . . mrigar, w1 1m , or e

Raia respondents.

Jwaleshwari Pratap Narain

1950. November 14.

The judgment of the Court

S.ngh .t Others was delivered by

Mukherjea J.

MuKHERJEA J.-This is an appeal against a judgment and decree of a Division Bench of the Allahabad High Court dated April 22, 1943, which reversed on appeal those of the Civil Judge of Basti dated 6th of November 1939.

The suit, out of which the appeal arises, was commenced by the plaintiff, whose successor the present appellant is, to recover a sum of Rs. 11,935 by enforcement of a simple mortgage bond. The mortgage deed is dated the 8th of March 1926 and was executed by Raja Pateshwari Partap Narain Singh, the then holder of Basti Raj which is an impartible estate governed by the rule of primogeniture, in favour of Bhikhiram Sahu, the father of the original plaintiff Ramdeo, to secure a loan of Rs. 5,500 advanced by the mortgagee on hypothecation of certain immovable properties appertaining to the estate of the mortgagor. The loan carried interest at the rate of 9 per cent. per annum and there was a stipulation to pay the mortgage money within one year from the date of the bond. The mortgagor and the mortgagee were both dead at the time when the suit was instituted, and the plaintiff in the action was Ramdeo Sahu, the son and heir of the mortgagee, while the principal defendant was the eldest son of the mortgagor who succeeded to the Basti estate under the rule of primogeniture. It was stated in the plaint that absolutely nothing was paid by the mortgagor or his successor towards the mortgage dues and the plaintiff claimed the principal amount of Rs. 5,500 together with interest at the rate of 9 per cent. per annum up to the date of the suit.

A number of pleas were taken by the contesting defendant in answer to the plaintiff's claim, most of which are not relevant for our present purpose. The

Iii

substantial contentions raised by the defendant were 1950 of a three-fold character. In the first place, it was urged that the document sued upon was not a properly Sariu Ptrshad attested or validly registered document and could not 1; ia operate as a mortgage instrument in law.

The second Jwal••hwar; contention raised was that there was no consideration Pratap Narain in support of the transaction, at least to the extent of Singh .t Othm.

Rs. 2,000, which was represented by items 3 and 4 of the consideration clause in the document. The third Mukhorjea J. and the last material defence related to a claim for relief under the United Provinces Agriculturists' Relief Act.

The trial Judge held in favour of the defendant on the last point mentioned above and negatived his other pleas. The result was that he made a preliminary decree for sale in favour of the plaintiff for recovery of the principal sum of Rs. 5 ,500 with interest at certain rates as are sanctioned by the U. P. Agriculturists' Relief Act; and agreeably to the provisions of that Act the decretal dues were directed to be paid in a number of instalments.

Against this decision, the defendant took an appeal to the High Court of Allahabad which was heard by a Division Bench consisting of Verma and York J J.

The learned Judges reversed the judgment of the trial Judge and dismissed the plaintiff's suit on one ground only, viz., that the bond was not attested in the manner required by law and consequently could not rank as a mortgage bond ; and as the suit was instituted beyond 6 years from the date of the bond, no money decree could be claimed by the plaintiff.

It is against this judgment that the plaintiff has come up on appeal to this court, and the main contention raised by the learned Attorney.General, who appeared in support of the appeal, is that in arriving at its decision on the question of attestation, the High Court approached the matter from a wrong standpoint altogether and on the materials in the record it had no justification for reversing the findings of the trial court on that point.

The question for our consideration is undoubtedly one of fact, the decision of which depends upon the

1950 appreciation of the oral evidence adduced in the case.

In such cases, the appellate court has got to bear in S(l, rju Prshad d d h" h h v. min that it has not the a vantage w ic t e trial

Raja Judge had in having the witnesses before him and of

Jwal., hwari observing the manner in which they deposed in court.

Pratap Narai" This certainly does not mean that when an appeal lies

Si•gh & Othera, on facts, the appellate court is not competent to reverse

~ 1 k-;:--.

J a finding of fact arrived at by the trial Judge. The rule u " 1'a is -and it is nothing more than a rule of practice --that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of the witnesses, then unless there is some

special feature about the evidence of a particular witness which has escaped the trial Judge's notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lies, the appellate court should not interfere with the finding of the trial Judge on a question of fact('). The gist of the numerous decisions on this subject was clearly summed up by Viscount Simon in Watt v. Thomas('), and his observations were adopted and reproduced in extenso by the Judicial Committee in a very recent appeal from the Madras High Court('). The observations are as follows: -·

"But if the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at at the trial, and especially if that conclusion has been arrived at on confliciting testimony by a tribunal which saw and heard the witnesses, the appellate court will bear in mind that it has not enjoyed this opportunity and that the view of the trial Judge as to where credibility lies is entitled to great weight.

This is not to say that the Judge of first instance can be treated as infallible in determining which side is telling the truth or is refraining from exaggeration.

Like other tribunals, he may go wrong on a question of fact, but it is a cogent circumstance that a Judge of first instance, when

(11 Vid9 Lord A•kin's obsetva.tions in lV. 0. Macdonald v. Prd Latimer,

A.LR. 1929 P.O. 15, 18.

(2) [1947] A.O. 484, alp. 48r..

(3) Vide Saravedrcuwami v. Talluri, A.LR. 19i9 P.O. p. 32,

estimating the value of verbal testimony, has the 1950 advantage (which is denied to Courts of appeal) of 8

. -Pd h . th "t b f h. d b . th ar; u 6'sha avmg e w1 nesses e ore 1m an o servmg e v manner in which their evidence is given." Raia It is in the light of these observations that we pro- Jwal,.hwali pose to examine the propriety of the decision of the Pratap Nar•m

J h . .

Singh ~Others. learned udges of t e High Court m the present case. _ It will appear that the mortgage deed besides contain Mukherjea J. ing the signature of the executant, purports to bear the signatures of three other persons, two of whom are described as attesting witnesses <tnd the third one as the scribe. Harbhajan Lal and Jawala Prasad Tewari purport to have signed the document as attesting witnesses and Jawala Prasad Patwari is the person who has signed it as the scribe. Jawala Prasad Tewari was admittedly dead when the suit was brought and Harbhajan Lal, the only surviving attesting witness was called on behalf of the plaintiff to prove the execution of the deed as is required under section 68 of the Indian Evidence Act. Harbhajan Lal stated in the witness box that he did sign the document as a witness and so did Jawala Prasad Tewari, but neither of them signed it in the presence of the mortgagor; nor did the mortgagor sign in their presence.

On this statement being made, the witness was declared hostile and he was allowed to be crossexamined by the plaintiff's Counsel.

He was crossexamined by the defendant also and in answer to the questions put to him by the defendant's lawyer, he stated that he signed the deed at the Co!lectorate Kutchery, meaning thereby the Bar Library, where he used to sit as a petition writer and the document was taken to him at that place by Bhikhi Ram Sahu, the mortgagee, Ghur Lal, a Karinda ot the mortgagor, and Jawala Prasad Patwari, the scribe.

Jawala Prasad Tewari signed the deed after him.

The mortgagor certainly did not come to that place and his signature was already on the deed when the witness signed it.

The details of the defendant's version relating to execution of this document were given by Jawala Prasad Patwari, who was the principal witness on the

1950 side of the defendant. He says that he prepared the -- draft at the sherista or the office of the Raja Sahib SMju Porshad h" h . "d h" K t 1 Th d ft v w lc lS outs1 e ls o or pa ace. e ra was Raja prepared under instructions from Bhikhi Ram, the Jwaleshwari mortgagee. and Ghur Lal, the Karinda of the mort- Pmtap Narain gagor, both of whom were present when the draft was Singh & Othm prepared. After the draft was fair copied and stamp-

Mukhe, Jea J. ed, the witness signed it as the scribe and then it was taken by Bhikhi Ram and Gbur Lal to the Kot or palace of the Raja for his signature.

After obtaining the Raja's signature, Bhikhi Ram went away to his house and some time later he as well as Bhikhi Ram and Gbur Lal went to the Collectorate Kutchery, where they took the signatures of Harbhajan Lal and Jawala Prasad Tewari.

They then went to the registration office, where the document was presented for registration by Jainarayan Sukul who held a general power of attorney for the Raja.

As against this, there is a completely different version given by the plaintiff himself and his witness Buddhu Lal.

According to the plaintiff, the document was executed and attested at one and the same sitting in the Kot or palace of the Raja; the terms had been settled beforehand between Bhikhi Ram and the mortgagor and on the 8th of November 1926 the plaintiff himself, and not his father, went to the Raja's palace at about 10 or 11 A. M. in the morning to get the document executed. He was accompanied by three persons to wit Harbhajan Lal, the deed writer of his father, Buddhu Lal, an old servant of the family, and Jawala Prasad Tewari who was also well known to the plaintiff and was taken to bear witness to the deed.

They found Jawala Prasad Patwari already with the Raja when they reached the Kot.

The draft was prepared by Buddhu Lal at the suggestion of the Raja. It was the plaintiff's desire that the final document should be scribed by Harbhajan Lal but as the Raja wanted to oblige Jawala Prasad Patwari, who was the Patwari of Basti proper, the deed was faired out and scribed by Jawala Prasad Patwari.

After the Raja had put his signature on the

document in the presence of Harbhajan Lal and mo Tewari, both the latter signed the document in the f l R Th b d Sarju Pershad presence o tie aia. e su sequent events narrate by the plaintiff relate to the registration of the docun:ja ment and we do not consider them to be material for Jwaleshwari our present purpose.

Pratap Narnin This story of the plaintiff is supported materially Singhllim. and on all points by Buddhu Lal, who was an old .•lukhecjea J. servant of the family, though he was no longer in service when he deposed in court.

There were thus two conflicting versions placed before the court and each side attempted to substantiate its case by verbal testimony of witnesses.

The trial Judge was to decide which of the two versions was correct and he accepted the story of the plaintiff and rejected that of the defendant.

The learned Judges of the High Court in dealing with the appeal do observe, at the beginning of their discussions, that on a question of fact the appellate court should be slow to differ from the conclusions arrived at by the trial Judge who had seen and heard the witnesses; but in their opinion, this rule did not apply to the present case as the trial Judge here did not base his conclusions on the impressions created in his mind by the witnesses who deposed before him.

What the trial Judge relied upon, it is said, was not the demeanour of the witnesses as index of their credibility but upon the inherent improbability of the circumstances deposed to by the defendant's witnesses.

It is observed by the High Court that the trial Judge, when he found the defendant's story to be improbable, should have considered whether or not there were improbable features in the plaintiff's case also, and _whether the evidence of the plaintiff and his servant Buddhu Lal merited credence at all. The learned Judges of the High Court then proceed to examine and discuss at great length the different reasons put forward by the trial Judge in support of his finding that the defendant's case was unreliable.

These reasons are held to be inconclusive and unsound and tne High Court further found that the plaintiff's story

.. ,

19;0 as narrated by him and his servant is improbable and not worthy of belief.

Swju Pershad

In our opinion, the High C0urt's approach to the

Raia case has not been proper and its findings are un-

Jwaleskwari supportable on the materials in the record.

:ratp, t;;:'" Here was a case where the controversy related to a mg"__ ""pure question of fact which had to be determined by

,\fakheriea J. weighing and appraising of conflicting oral testimony adduced by the parties. It cannot be denied that in estimating the value of oral testimony, the trial Judge, who sees and hears the witnesses, has an advantage which the appellate court does not possess.

The High Court was wrong in thinking that it would detract from the value to be attached to a trial Judge's finding of fact if the Judge does not expressly base his conclusion upon the impressions he gathers from the demeanour of witnesses (I). The duty of the appellate court in such cases is to see whether the evidence taken as a whole can reasonably justify the conclusion which the trial court arrived at or whether there is an element of improbability arising from proved circumstances which, in the opinion of the court, outweighs such finding.

Applying this principle to the present case, we do not think that the High Court was justified in reversing the finding of the trial Judge on the question of attestiation of the document. In the opinion of the High Court the story narrated by the plaintiff and his servant is untrue, and the main reason given is that it is not at all probable that the plaintiff and not his father Bhikhi Ram was present at the palace of the Raja when the document was executed. The mortgagor, it is said, was an influential person in the locality occupying a very high social position and it would be indecorous and against Indian customs for a man like Bhikhi Ram not to be personally present when the Raja was going to execute a document in his favour. The learned Judges seem to think that the plaintiff was not really at the spot when the mortgage deed was executed and as Bhikhi Ram was dead, this story was manufactured by the plain tiff in order to

fll Vida ihe observa.tions of Lord Carson in Netherlatt.dsche Handel .\faatscha:ppij v, R.M, P. Ghettir Firm ad Others, A.LR. 1929 P.C. 20J, '..105,

enable him to prove attestation. Mr. Banerjee appear- 1s5o ing for the defendant respondent went to the length . - of suggesting that it was only after Harbhajan Lal sar, u Persha<i

turned hostile in the witness box and denied that he R; j. attested the document that the new story was invent- Jwaleshwari ed by the plaintiff.

Pratop Narain We think that this argument rests on an extremely Smgh .t OthM. flimsy basis which does not bear examination. It Muk;;;;.a J. may be that the Raja was a man of high social position, but it should be remembered that he was in the position of a borrower and moreover it was not the first time that he was borrowing money from Bhikhi Ram.

As, however, he was the Raja of Basti, the document was executed at his palace and not in the house of the mortgagee and if as the plaintiff says, the terms were already settled between Bhikhi Ram and the Raja and the only thing left was to embody the agreed terms in writing, we fail to see why it was absolutely necessary for Bhikhi Ram to wait upon the mortgagor personally; and why his adult son, who was sufficiently old and experienced in business affairs, could not represent him in the transaction.

The suggestion of Mr. Banerjee that the new story was invented after the plaintiff had seen Harbhajan Lal giving evidence against him in the witness box 1s not worthy of serious consideration having regard to the fact that the plaintiff himself stepped into the witness box immediately after Harbhajan Lal had finished his deposition.

It seems to us also that the presence of Harbhajan Lal and Buddhu Lal at the sitting when the mortgage transaction took place was quite a probable and natural thing which cannot give rise to any suspicion.

It appears from the evidence on the record that Harbhajan Lal, who was a professional deed writer, was usually employed for writing deeds of the plaintiff's father and he figured either as a scribe or as an attesting witness in various documents to which the plaintiff's father was a party. It was quite natural for the plaintiff in such circumstances to take Harbhajan Lal _ along with him to the Raja's palace on the day that th(!

1950 mortgage bond was executed and we see no reason to . -- disbelieve the plaintiff's statement that his original 8"'1u p.,, had intention was to have the deed scribed by Harbhajan v.

Raja Lal. It is said by the High Court that in the mofussil Jwaleshwari districts in the United Provinces the Patwari is the Pratap Narain person generally .employed for drafting and scribing Singh & Others. deeds.

This cannot mean that all the people in the district of Basti used to have their deeds drafted and Jfukherjea J. scribed by the Patwari. We have exhibited documents in the records of this case where the name of Harbhajan Lal appears as the scribe; and so far as the plaintiff's father was concerned, there is no doubt whatsoever that Harbhajan Lal was the scribe ordinarily employed to do his work. In this case also if Jawala Prasad Patwari had not been present on the spot, the plaintiff would certainly have the document scribed by Harbhajan Lal, as so many documents in favour of the plaintiff's father had been scfibed by this man on previous occasions.

We see nothing improbable in the story that it was out of deference to the wishes of the Raja that the plaintiff consented to the document being scribed by Jawala Prasad Patwari.

As regards Buddhu Lal, it is not disputed that he was an old and a trusted servant of the plaintiff's family. That he was trusted in business matters is clear from the fact that his name appears as a witness in the registered receipt (Ex. 10) given by Sheo Balak Ram, to whom a sum of Rs. 500 was paid by Bhikhi Ram under the terms of the disputed mortgage deed.

We fail to see why it was improbable that Buddhu Lal would accompany the plaintiff to the Raja's palace on the day of the execution of the document.

The trial Judge relied to some extent upon the fact that the signatures of the executant and Harbhajan Lal were in the same ink in support of his conclusion that Harbhajan Lal signed the document at the place of its execution and not at the Collectorate Kutchery as alleged by him. Speaking for ourselves, we do not attach much importance to the similarity in the ink which is after all not a very reliable test ; but we do agree with the trial Judge in holding that Harbhajan ....

S.C.R.

SUPREME COURT H.EPORTS 791

1950 Lal must have signed the document at the time when it was executed and not afterwards; and it is really Sarju Pe,.shad inconceivable that an old and experienced deed writer v. like him did not know the requirements of proper Raja attestation. On his own evidence he had attested Jwaleshwari numerous documents and he could not recall a single Pratap Narai" instance where he signed the document in such manner Singh &o Others. as he did in the present case. The way in which the Mukherjea J. learned Judges of the High Court have attempted to explain away this part of Harbhajan Lal's evidence does not appear to be satisfactory. The other observation made by the High Court in this connection that in this particular province there are many persons who are acquainted with law but do nnt care to comply with its requirements on accouut of carelessness, indifference, sloth or over-confidence is not relevant and need not be taken seriously.

Whatever that may be, we have no hesitation in holding that Harbhajan Lal knew perfectly well what attestation means in law and he did sign the document as an attesting witness at the Raja's Kot after the document was executed.

Jawala Prasad Patwari is apparently a man under the control of the defendant and cannot be trusted.

Why Harbhajan Lal did go over to the defendant's side is a question which may not admit of an easy answer. The trial Judge seems to be of opinion that it was probably due to the influence exercised by Jaw ala Prasad Patwari, who is a co-villager of Harbhajan.

We think it unnecessary to speculate upon these matters, for ill our opinion Harbhajan Lal stands condemned by his own statement in court.

Our conclusion is that the finding of the trial Judge on the question of attestation is perfectly consistent with the circumstances and probabilities of the case and the learned Judge did not omit anything which ought to have been present to his mind in coming to a conclusion.

The evidence on the record taken as a whole fully supports the finding, and in our opinion the High Court has reversed it on totally inadequate grounds. The result is that the appeal must be

il\1Jwd ind the judgment of tlle Higl1 Court should be

1950 set aside. As the High Court, however, has dismissed -- the suit only on the ground of non-attestation of the Sarju Pmhad mortgage bond and did not consider the other points

;; ja which were raised before it, the case must go. back to Jwaleshw>ri that court m order that the other matters, which have Prntap Narain been left undecided, may be heard and decided by the

Singh & Others. learned Judges and the case disposed of in accordance with law. The plaintiff appellant is entitled to costs of

fakherjea J. this hearing as well as the costs of the High Court

Nov. 30.

against defendant No. 1.

Appeal allowed.

Agent for the appellant: Rajindar Narain.

Agent for the respondents: 5. P. Varma.

A. M. MAIR & CO.

GORDHANDASS SAGARMULL. [SAIYID FAZL Au, PATANJALI SASTRI and

MEHR CHAND MAHAJAN JJ.] Arbitration-Contract by broer for sale of goods by "sold" and "bought" notes-Arbitration clause-Seller denying right of b•roker to enforce arbitral ,; nn clause-~J urisdiction of arbitrators- Valid, ity of award-Construction of contract.

The appellants, a firm of brokers, entered into a' contract for the sale and purchase of a quantity of jute under a ''sold note"

addressed to the respondents which they signed as " A & Co.,

brokers" and a "bought note" of the same date and for the same quantity of jute addressed to a third person in which also they signed as ' 1 A & Co., brokers".

The" sold note" contained the usual arbitration clause under which '' all matters, questions, disputes, differences and/.or. cla.ims, arising out of and/or concerning, and/or in connection and/or in consequence of, or relating to, the contract ......... shall be referred to the arbitration of the Bengal Chamber of Commerce." A dispute having arisen with regard to a matter wbich admittedly arose out of the contract evidenced by the sold note, the appellants referred the dispute for arbitration.

The respondents raised before the arbitrators the further contention that as the appellants were only brokers they were not entitled to refer the matter to arbitration.

The arbitrators made an award in favour of the appellants.

The respondents wade an application to the High Court under the Indian Arbitration Act for setting aside the award: Held that,. assuming that it was open to the respondents to raise this objection at that stage, inasmuch as this further dispute -

SARJU PERSHAD

RAJA JWALESH\VARI PRATAP NARAIN

SINGH

SAIYID F AZL ALI

MEHR CHAND MAHAJAN

MUKHERJEA JJ

Supreme Court

Verma

Yorke

M. C. Setalvad

Narain Andley

SarJU Pershad

P. . Banerjee

Jwaleshwari Pratap Narain

Mukherjea

MuKHERJEA

8th of March 1926

Raja Pateshwari Partap Narain Singh

Basti Raj

Bhikhiram Sahu

Ramdeo

Ramdeo Sahu

Pratap Narain

Mukhorjea

High Court of Allahabad

York

Raja

Pratap Narai

Madras High Court

Singh

Harbhajan Lal

Jawala Prasad Tewari

Jawala Prasad Patwari

section 68

Indian Evidence Act

Bhikhi Ram Sahu

Ghur Lal

Jawala Prasad Patwari

Jawala Prasad Tewari

Bhikhi Ram

Pmtap Narain gagor

Mukhe

Gbur Lal

Raja

Harbhajan Lal

Jainarayan Sukul

Buddhu Lal

8th of November 1926

Buddhu Lal

Basti

mo Tewari

Sarju Pershad

Jwaleshwari

Pratap Narnin

Singhllim

.•lukhecjea

Swju Pershad

\fakheriea

:ratp, t;;:'" Here was a case where the controversy related to a mg" ""pure question of fact which had to be determined by

,\fakheriea J. weighing and appraising of conflicting oral testimony adduced by the parties.

fll Vida

Carson

Banerjee

Pratop Narain

Banerjee

Singh

Jfukherjea

Patwari

Sheo Balak Ram

Harbhajan

Sarju Pe,.shad

Jaw ala Prasad Patwari

Prntap Narain

Singh

fakherjea

Rajindar Narain

P. Varma

GORDHANDASS SAGARMULL

SAIYID FAZL Au

PATANJALI SASTRI

Bengal Chamber of Commerce