AI Structured Summary
Not yet generated for this judgment
Judgment
Wort, J.—This appeal raises two question. The first is with regard to the admissibility of certain documents upon which the lower Courts have relied for the proof of the plaintiffs'' title and the second relates to a payment by the plaintiffs, who are the respondents before me, made to prevent a sale in execution which, according to their contention was fraudulent execution, inasmuch as the property which was alleged to be that of the judgment-debtor was the property of the plaintiffs.
It is unnecessary to state the facts in detail; but the dispute is with regard to a tank which (according to the plaintiffs) was in the two annas share of persons known as Sekhar Babus. The defendant on the other hand contended that it was within the 14 annas interest belonging to him. According to the plaintiffs the collusive rent sale was instituted by the defendant, this tank was put up for sale, and after attachment the plaintiffs deposited the money u/s 6, Bengal Bent Recovery Act. Incidentally I should say that this property is situated in Chota Nagpur. It is with regard to this payment to overt the sale in execution that the plaintiffs claimed and succeeded in obtaining a decree for money paid under compulsion, in other words, an involuntary payment. It will be seen therefore that the case depended in the first instance upon the plaintiffs proving their title to the property. For that purpose a number of documents were adduced in evidence on behalf of the plaintiffs'' the ones with which we are more particularly concerned are Exs. l to 7. Ex. 1 was a kabala executed by Sekhar Babus in favour of the plaintiffs. To this no objection can be taken as it was necessary (and it is admitted by the appellant) for the plaintiffs to adduce this document in evidence.
There were such documents however as leases by the Sekhar Babus to certain fishermen with regard to the fishery rights in the tank; they were Exs. 2, 3 and 7. Exs. 4, 5 and 6 were sudbarna bonds executed by the Sekhar Babus or some of them in favour of the plaintiffs. It is quite clear that the only documents amongst that number to which objection might be taken are the documents in which the Sekhar Babus purport to grant fishery rights in the tank. The learned Judge in the Court below in considering these documents came to the conclusion that they established the fact that Sekhar Babus of Lagda used to hold a 2 annas share in the mauza in niskar right and, in this connexions I must point out that one of the contentions of the plaintiffs in the action was based on. the alleged fact that this tank was rent free and not (as the defendant alleged and as the Record of Rights recorded) liable. to a rent of something like Rs. 11.
It was these documents therefore to. some of which objections are taken, upon which the learned Judge relied in coming, to the conclusion that this tank was rent free. Now, there is no serious dispute in the case that the actual title of the plaintiffs was proved but whether it was a title to land which made them liable to a rent of Rs. 11 or whether they had title to a property which was rent-free was the substantial question in the case, and, as I have said and repeat, it was upon, some of these objectionable documents that the Judge relied in order to come to conclusion that there was a niskar right, that the tank was not assessable to rent. But assuming that the contention of the learned advocate who appears on behalf, of the appellant is right in this connexion, it does not in my opinion dispose of the point.
The objection is based, I assume, on the contention than in this document upon which reliance was placed, it had been recited by the Babus (the transferors) that the right was a niskar right but as I have said, assuming the contention is right, it does not dispose of the matter, because the learned Judge proceeds, after discussing the documents to which I have referred (which he calls the earlier documents) to discuss what he calls the old documents and upon these documents also he comes to the conclusion that this niskar right is established.
But it is contended, relying upon some of the authorities of this Court, that as it is impossible to ascertain to what extent the Judge''s mind was influenced by the objectionable documents, the case should at least be remanded for a determination of this question of title after the exclusion of the documents to which objection is taken.
I cannot hold however that the decisions of this Court on this point can be taken as universal in the sense that they are applicable to every case where inadmissible evidence has been admitted. Section 167, to Evidence Act, expressly prescribes the course to be adopted; and, if I were to take the decisions of this Court on this matter as universal; it would be tantamount to repealing Section 167, Evidence Act, as it will be seen that Section 167, applies to second appeals on the civil side or cases tried by a jury on the, criminal side: and not to first appeals where the facts are a matter for decision of the appellate Court. It seems to me, following the words of Section 167, that there was evidence in this case upon which the Judge could come to this conclusion: and particularly, as it is a judgment of affirmance, I decline to interfere on this point.
I now come to somewhat difficult question as to whether this payment was a voluntary payment or involuntary payment. The facts (as I must state them) are that the payment was made before the sale took place. It is so alleged in the plaint, is not denied in the written statement, nor is it discussed in any detail in the judgments of the Courts below. In this state of affairs I must hold that it was a payment to prevent the sale taking place rather than to set aside the sale. The first decision on this question is the case of Dooli Chand v. Ram Kishen Singh (1882) 7 Cal 648, a decision which at first sight; would appear to have the widest possible application. Their Lordships of the Judicial Committee in summing up the case said:
Their Lordships think that there is no pretence for saying that the payment was voluntary. It was made to prevent a sale which would otherwise inevitably have taken place of the mouzah which the respondents had purchased, and was made therefore under compulsion of law that is, under force of these execution proceedings.
Reliance was placed on the well-known case of Valpy v. Manley 1 CB 594. I for the moment go to the decision of this Court in Raghu Ram v. Deokali Pande ''1928 Pat 193, and it is contended that that decision is binding on me. The decision of the Judicial Committee cited above, as I have said, lays down the proposition of law in the widest possible terms. In the case of this Court, though in somewhat different circumstances, it has been held that the payment was voluntary and therefore the money could not be recovered. In the first instance I should point out that although the learned Judges who decided the case to which I have just made reference referred to a decision of the Bombay High Court which had referred to the decisions of the Judicial Committee, the learned Judges them selves make no reference to the decision of the Privy Council to which I have referred nor to any of the later decisions of the Judicial Committee. The decision of this Court can be distinguished on the ground that the payment made in the Patna case was under Order 21, Rule 89 after the sale had taken place. Kulwant Sahay. J., in delivering the judgment of the Court said:
The person making the payment must accept the validity of the sale. He cannot make a payment under Order 21, Rule 89, and at the same time challenge the validity of the sale. A payment under Rule 89 must be an unconditional payment with the object of the money being paid to the decree-holder.
He had at an earlier stage of his judgment spoken of the fact that the object of Order 21, Rule 89 is to enable the judgment debtors or persons interested in the property sold to deposit the money to have the sale set aside. In the first instance, therefore I am bound to follow the decision of the Judicial Committee and, in doing so, I distinguish the decision of their Lordships of the Privy Council from the decision of this Court, on the ground that in the earlier case the payment was made before the sale had taken place and in the Patna case the payment was made to set aside the sale after it bad taken place. Whether any such distinguishing feature is, possible to explain the decision of this Court, I must say I have very serious doubts.
The next case to which reference is made is the case of Narayan Vasudeb v. Amgauda Malagauda, 1921 Bom 169. That is the case to which the learned Judges of this Court referred in coming to the decision that the money was a Voluntary payment; and, again, the distinguishing feature; if any, was the fact that the money there was deposited under Kanhaya Lal v. National Bank of India Ltd., (1913) 40 Cal 598, their Lordships of the Judicial Committee again in a case in which money was deposited to obviate an attachment and therefore to prevent the sale taking place, held that the money was recoverable as involuntary payment. Now, the case of Dooli Chand v. Ram Kishen Singh, (1882) 7 Cal 648, the case of Kanhaya Lal, to which I have just referred, and the English case upon which the earlier decision of the Judicial Committee proceeded were all cases in which payment was made to prevent the sale and the payment was made under protest. In each of the cases reference is made particularly to that; and it is contended by the learned advocate appearing on behalf of the appellant, that unless money is paid under protest it can not be said to be an involuntary payment.
I must say I have some difficulty in coming to a conclusion on that point, more particularly by reason of the words of their Lordships of the Privy Council in Dooli Chand v. Ram Kishen Singh (1882) 7 Cal 648, the words which I have quoted and repeat:
it was made to prevent a sale which would otherwise inevitably have taken place of the mouzah which the respondents had purchased, and was made therefore under compulsion of law.
I find it almost impossible to hold that the mere addition of "protest" (although as I have pointed out their Lordships in each of the cases to which I have referred have said that protest was present) would in any way affect the question of whether the payment was involuntary or not. Their Lordships of the Privy Council held that the payment was involuntary by reason of the fact that it was under compulsion of law in the sense that a sale would be inevitable unless the money was deposited. On the whole therefore I come to the conclusion that the question of whether a protest was actually made or not is immaterial.
Had I held otherwise, it would have been necessary in my judgment in this case to come to a conclusion against the respondents. The question certainly was not debated in the Courts below, but on the pleadings as I find them there is no suggestion by the plaintiffs that any protest was made. It is contended by Mr. Mazumdar on behalf of the respondents that the mere fact that the payment was made to avoid the sale is sufficient. That is in substance the argument. In my judgment, for the reasons which I have stated, it is an argument which must succeed.
There is a farther contention on behalf of the appellant and that is that u/s 6, Bengal Rent Recovery Act, the person who may deposit the money is either the judgment-debtor or the person interested, and that the plaintiffs in this case are not the persons contemplated by this section.
The section speaks of the payment being made by the defaulting holder of a tenure or anyone on his behalf. There is no question of tenure in this case and it is contended incidentally that there was on jurisdiction to accept the payment under this section. That question in my judgment cannot now be gone into. But) the substantial point that remains is whether 8. 6, being different from Order 21, Rule 55 in this respect that whereas under the latter order and rule any person may deposit the money u/s 6 the person interested may deposit the money, such a difference should necessitate a different conclusion on this question.
It seems to me that argument cannot be supported: that is to say, the difference is not so fundamental as to affect the ultimate result. Whether we describe the plaintiffs as an interested party or not, it is clear that they were entitled to deposit the, sum under O.21, Rule 55, if the CPC applied. Apart from the question of jurisdiction with which I have already dealt it is not disputed that they could also deposit u/s 6, Bengal Rent Recovery Act, which applied to this case. It seems to me therefore necessarily to follow that there can be no distinction drawn on this ground. I Would therefore hold, that this was an involuntary payment.
There was a further point however with which I must deal and that Was that the most the plaintiffs, had Was a six annas interest in the tank and therefore that they were not entitled to deposit the whole of the amount referable to the 16 annas and consequently the payment could not have been considered an involuntary payment. In my judgment that argument cannot be supported. Assuming for the moment that the plaintiffs were the persons entitled to deposit a portion of the amount, the only way of saving the property, over which, (on the decisions of the learned Judges in the Courts below) the judgment-debtor had no title was to deposit the whole sum.
I therefore come to the conclusion that it was an involuntary payment. For these reasons the decision of the learned Judge in the Court below was right and the appeal must be dismissed with costs. There will be leave to appeal.