Baban Misra and Others vs Bishwanath Pande and Others

Saunders, J.—This appeal is by the defendants in a suit brought by the reversionary heirs of one Pokhai Pande for possession of land sold by his sister-in-law Mt. Tetri while she held the estate in lieu of maintenance after the death of his widow. The sale of approximately six and a half bighas of land was effected by means of two documents executed in 1922 in favour of defendant 1, who is her nephew. A portion of the land covered by one of these sale deeds, 1 bigha 4 kathas 3 dhurs, had been given in usufructuary mortgage to another person by Pokhai Pande in 1911, the sum secured by the mortgage being Rs. 899.

This sum and a sum also for redemption of another mortgage which had been executed by Mt. Tetri herself were left with defendant 1, who in 1924 sold the 1 bigha 4 kathas 3 dhurs to defendants 2 and 3 for Rupees 1,203 without having redeemed either of the mortgages. Defendants 2 and 3 redeemed the usufructuary mortgage and obtained possession of the land which they had bought from defendant 1. Separate written statements were put in by defendant 1 and by defendants 2 and 3 and in both the written statements the plaintiffs'' claim to be the reversioners of Pokhai Pande was denied and it was pleaded that the sales by Mt. Tetri had been for necessity.

The trial Court decreed the suit and an appeal against the decree was dismissed by the District Judge of Muzaffarpur. This second appeal is by the three defendants, but it is pressed only on behalf of defendants 2 and 3. Mr. Mullick appearing for the appellants did not question the findings of the lower Courts as to the plaintiffs'' right as reversioners or as to the invalidity of the alienations by Mt. Tetri, but he contended that defendants 2 and 3 are entitled to a refund of the Rs. 899 which they paid to the usufructuary mortgagee. He relied on the decisions of two cases, Mohamed Shumsool Hooda v. Shewukram (1874) 22 WR 409 and Jagdeo Sahu v. Mahabir Prasad 1934 Pat 127. In the former case a mortgage subsisting upon an estate at the time of a sale by a widow with only life interest in the estate was afterwards redeemed by the purchaser and the Judicial Committee of the Privy Council held that it was equitable that when the plaintiff claims the estate, credit should be given to the purchaser for the payment of the mortgage which otherwise the plaintiff himself would have had to meet.

In the other case the reversioners of a deceased mortgager instituted a suit for possession against the person who had purchased the mortgaged property and had deposited the mortgage debt and the view was taken by this High Court that although, as in the present case, Section 92, T.P. Act, did not apply because the section was enacted after the sale, yet the transferee was entitled to the equitable relief claimed by him and that credit should be given to him for the payment of the mortgage debt.

Mr. Parmeshwar Dayal appearing for the respondents attempted to distinguish those cases from this case for the reason that in the former the payments had been made in good faith whereas defendants 2 and 3 failed to satisfy the Courts below that they were honest purchasers of the property.

He contended also that it is not open to these defendants to claim equitable relief on this ground as they did not do so in their written statement and did not cause any issue to be framed for adjudication of the claim, but contested the suit on same grounds as those taken by defendant 1, stating only as regards the sale that it was executed by defendant 1 in their favour for consideration and was in every way valid and binding on the estate. The plaint however contained no allegation that called for an assertion of good faith on their part. All that the plaintiffs stated in the plaint regarding these two defendants was that they were impleaded as defendants because they were subsequent purchasers of some of the properties and a declaration was prayed for that the first defendant had no right to sell any of the properties to; them.

The claim was made by these defendants during the hearing of the suit and it was rejected merely because they did not give evidence as witnesses to prove that the purchases have been made in good faith. I do not consider that it was necessary for them to do so when there was no imputation of bad faith in the plaint. In the appeal to the District Judge the plaintiffs'' claim to be given possession of the property was not questioned, the appeal being argued only on the ground that the appellants were entitled to a refund of the money they had paid to the mortgagees. The learned District Judge dealt with the point at some length and rejected the claim because he found that defendant 1 had acquired the properties dishonestly with the intention of keeping the estate oat of the hands of the reversioners; taking the correct view that if equity is to be invoked it should be only in favour of persons shown to have acted disinterestedly and in good faith with no intention of securing any unfair advantage for themselves.

But nothing that the learned Judge has said regarding the dishonesty of the transactions can have any reference to defendants 2 and 3 on whose behalf the claim must have been intended to be made for the claim was not open to defendant 1 who did not redeem either of the mortgages. The confusion of their case with the case of defendant 1 seems to have been due to the fact that the defence taken by these defendants was virtually the same as his. Nevertheless, as I have said, there is no reason to suspect bad faith on their part. Mr. Parmeshwar Dayal has referred to the case of 1929 Mad 110(3), where a transferee of the property of a minor which he obtained from a person who was not the minor''s guardian was found not to be entitled to be reimbursed the money which he bad spent for the benefit of the estate.

The facts however are clearly distinguishable from the facts of the present case as there was a distinct finding in that case that the transferee''s conduct throughout had been dishonest. In the present case I do not see why the plaintiffs should obtain the property free of the encumbrance which they would have had to pay if the property had not been sold to defendants 2 and 3 and so derive a very substantial benefit from the transaction which they have successfully impugned. I would therefore dismiss the appeal so far as defendant 1 is concerned and allow it partly in favour of defendants 2 and 3 by adding a declaration to the decree that the plaintiffs will not be put in possession of the 1 bigha 4 kathas and 5 dhurs bought by these defendants from defendant 1 until the plaintiffs have paid to them the sum of Rs. 899. The three defendants will be liable for three quarters of the plaintiffs'' costs in the Courts below and the parties will bear their own costs of this appeal.

Agarwala, J.

I agree.