Gauri Dutt Marwari vs D.K. Dowring and Others

Dhavle, J.—Appeal No. 1 of 1929 arises out of a title Suit No. 65 of 1926, brought by Mrs. Dowring, widow of Revd. C. Dowring, and two daughters of hers, Mrs. Howatson and Mrs. Williams for declaration of title to and confirmation of possession of a bungalow in Muzaffarpur purchased by Mr. Dowring in the name and with the money of Mrs. Howatson under a deed of sale executed by Baijnath Prasad Singh, defendant, second party, on May 24, 1923. Gauri Dutt Marwari, defendant first party, purchased this bungalow at a Court sale on December 1, 1925, in execution of a compromise decree of October 5, 1923, obtained by him against Baijnath in money Suit No. 430 of 1922. Plaintiffs'' case was that by reason of certain arrangements between the parties, to which reference will be made latter, Gauri Dutt had no right to proceed against the bungalow in execution and they sought to save their title, or rather the title of Mrs. Howatson, against Gauri Dutt with his execution purchase. The suit was decreed with costs for which Gauri Dutt and Baijnath were made separately liable. Gauri Dutt therefore appeals, and Baijnath has filed a cross objection on the ground that no costs should have been awarded against him.

Appeal No. 14 of 1950 arises out of a Suit No. 39, brought three months earlier fin May 1926) by Baijnath and his descendants against Gauri Dutt, Mrs. Howatson and Jugal Kishore Prasad Singh (and a minor brother of his) in respect of the purchase of several items of property by Jugal Kishore On December 4, 1925, at a Court sale brought about by Gauri Dutt in execution of his compromise decree against Baijnath in the same money suit of 1922. The plaint as it stood originally, prayed for the setting aside of the execution sale, and in the alternative for the recovery of Rs. 5,000 as damages either from Mrs. Howatson or from Gauri Dutt. The claim was based on the allegations that Gauri Dutt had been previously paid Rs. 0,000 for the bungalow referred to in the other appeal and had therefore no right to take out execution for the entire decretal amount as he did, that the sale processes were fraudulently caused to be served surreptitiously and that thus the properties which the plaintiffs valued at Rs. 5,000 were lost to them. The allegation that Rs. 0,000 had been paid to Gauri Dutt was rested on information given by Mr. Howatson, and para. 18 of the plaint put the alternative case that if in fact she did not pay the money as she was required by the sale-deed regarding the bungalow to do, she was liable to make good the loss of Rs. 5,000 sustained by them in consequence of her omission. More than a year after the institution of the suit, the plaintiffs entered into a compromise with the auction-purchaser and agreed that the execution sale of December 4, 1925, was valid and proper. Three months afterwards they obtained an amendment of the plaint by the deletion of the reliefs originally sought against the auction-purchaser.

What was thus left of the suit was the prayer for damages either from Gauri Dutt or from Mrs. Howatson. The lower Court came to the conclusion that the whole cause of action had disappeared by reason of the plaintiff''s compromise with the auction-purchaser, and accordingly dismissed the suit. Baijnath and his family accordingly appeal. It will be convenient to refer to the plaintiffs of Suit No. 39 under the name of Baijnath alone, to Gauri Dutt as the appellant, and to the plaintiffs in Suit No. 65 as the plaintiff. The pleadings in the two cases are by no means models of lucidity, and Gauri Dutt''s written statements in particular are of an argumentative and involved character. The issues of fact between the parties are however clear. As soon as he brought his money Suit No. 430 of 1922, Gauri Dutt applied for and obtained attachment before judgment in respect of the properties that he ultimately brought to sale in the execution proceedings of December 1925. It appears that negotiations for a settlement began almost immediately. Baijnath was heavily in debt and Gauri Dutt agreed to take Rs. 8,000 in satisfaction of his claim. Mr. Dowring, an old missionary, had been pensioned off by the American Mission, and having no house to live in, was helped with money by Mrs. Howatson to buy Baijnath''s bungalow. The price was settled at Rs. 6,500, out of which Rs. 6,000 was to remain in deposit with Mr. Do wring to be paid to Gauri Dutt when he released the bungalow from the attachment.

This arrangement was arrived at in consultation with Babu Jnanendra Mohan Dutt, who was Gauri Dutt''s Pleader and also Pleader of the Mission for a long time, and who prepared the deed of sale, Ex. 1, on November 24, 1922. Jnanendra Babu had informed one of the missionaries that the bungalow was charged with a mortgage of another creditor called Kishundeo Babu, and says that as there was delay in Baijnath settling with this creditor, Mr. Dowring deposited the money in the Imperial Bank. The learned Advocate for the appellant is right in his contention that the Pleader has mixed up the incidents of November 1922 and May 1923, for it was not till after the registration of the sale-deed on May 29, 1923 that Mr. Dowring deposited Rs. 5,000 and Re. 1,000 in the Savings Batik section of the Imperial Bank. According to Gauri Dutt, the sale-deed was originally executed on November 24,1922 and he admits executing on the same date Ex. 6, a baraitnaima or deed of release, in respect of his claim under the attachment before judgment obtained by him against the bungalow, for Rs. 6,000 shown m the deed as received by him out of the consideration money of the sale-deed. It is common ground that the transactions were not completed that day, evidently because Baijnath bad not yet been able to do anything about Kishundeo''s mortgage. Matters seem to have advanced a little in May 1923, when Baijnath either executed or at least dated his execution of the sale-deed as May 24, 1923 (though in the date given in the first line of the document the only change made was the, alteration of the month from November to May, the year still remaining as 1922) and got it registered on the 29th. Kishundeo''s settlement had yet to come, and Mr. Dowring, therefore, deposited the money in the bank, as is clear from the pass-books in evidence.

On June 27, 1923, Baijnath executed a deed of sale, Ex. 9, in part settlement of Kishundeo''s claims, but it was only after two or three other deeds (of mortgage) that the settlement was complete, and on September 11, 1923 Baijnath had Ex. 9 registered, and Kishundeo in accordance with his settlement with Baijnath paid Gauri Dutt Rs. 2,000. This payment is admitted by the appellant, who also admits that he had at first agreed to take Rs. 8,000 only from Baijnath in satisfaction of the debts in suit. The lower Court has found that on this very date Mr. Dowring paid Gauri Dutt Rs. 5, 990 and received from him the deed of release with its date altered to accord with the date of the sale-deed as registered and that on September 13, Mr. Dowring sent the balance of Rs. 10 to Gauri Dutt and obtained from him a receipt for the entire Rs. 6,000, Ex. 7. This is altogether denied by Gauri Dutt. Mr. Dowring died in August 1925 after about a year''s illness and before Gauri Dutt''s execution sale in December 1925. In March 1926, Mis. Howatson gave Gauri Dutt a notice of her claim through a mukhtar, and on the 16th of that month her sister, Mrs. Williams, one of the plaintiffs in Suit No. 65 acting in consultation with Mrs. Dowring, filed a complaint u/s 420, Penal Code, against Gauri Dutt.

The matter was ultimately brought up to the High Court in revision and the proceeding was quashed by Foster, J., towards the end of July 1926 after the institution of the present suits. The Contest in Suit No. 65 thus became a contest between Mrs. Dowring, ah old missionary lady of 70 and one daughter who was staying with her and Mrs. Howatson who occasionally used td come to Muzaffarpur, on one side, and Gauri Dutt who is characterized by the learned Subordinate Judge as a "shrewd man of business" on the other, the point of the characterization being that Gauri Dutt admittedly once filed in the High Court a false certificate of illness, and he says,. to meet another false certificate of illness filed by the other side, and then filed an affidavit that his certificate was as false as that of the other side. "The matter," says Gauri Dutt in his evidence.

was inquired into by the High Court, and it was held that on account of misrepresentation, my certificate was obtained, otherwise the Civil Surgeon''s position would have been humiliated.

The findings of the lower Court rest primarily on the evidence of Mrs. Dowring who was herself a witness to the payment on September 11 of Rs. 5,990 to the appellant. This is supported, as far as it goes, by the entries in the pass-books, showing withdrawals of Rs. 4,995 and Rs. 995 from the Imperial Bank on that date. Mrs. Dowring says that Gauri Dutt handed over the baraitnama, Ex. 6, on this occasion, the payment being due to the fact that Gauri Dutt had gone that day to Mr. Dowring and asked for payment of the ''deposit money'' as everything had been settled. The baraitnama shows an alteration of the date from November 24, 1922, to May 24, 1923. Abdul Latif, the admitted scribe of the document, who was called as a witness for the plaintiffs, says that he made the alterations of date at the instance of Gauri Dutt on some date in September 1923. The appellant''s case is that when the transaction could not be put through on November 24, 1922, owing to Baijnath''s inability to satisfy Mr. Dowring about the removal of Kishundeo''s encumbrance, appellant considered that the contract was at an end and left the document with his karpardaz Ali Hussain, father-in-law of the scribe, Abdul Latif. Gauri Dutt however could not but have known that Ali Hussain was Baijnath''s karpardaz as well; and having regard to the contents of the document and to Gauri Dutt''s shrewdness and business experience the lower Court has, in my opinion, rightly declined to accept such a story.

The contract of November 24, was by no means at an end on that day merely because the transaction was not complete. As between Mr. Dowring and Baijnath, reference has been made before us to a document which is not included in the paper book, Ex. 9 (a), a letter written by Baijnath promising to do his part as quickly as possible, and to the execution of the sale-deed and the mortgage bond for Rs. 500 received from Mr. Dowring, Ex. E, that were registered by Baijnath on May 29, 1923. That Gauri Dutt must have been aware of this is shown by the evidence of his Pleader Jnanendra Babu who says that Gauri Dutt had approached him and asked him to persuade Revd. Dowring to pay him the said deposit of Rs. 6,000 after matters were settled with Kishundeo Babu. The Pleader, therefore, advised Mr. Dowring to pay the money under a receipt and get a deed of release of the property from attachment. I can see no reason whatsoever to disbelieve the Pleader, even though it is true that his evidence is somewhat confused, obviously because he was consulted by one party or the other on more than one occasion, but not consulted in September 1923 at the time the money was paid out to Gauri Dutt. It has been suggested that if the date of the baraitnama which was originally executed by Gauri Dutt on November 24, 1922 was altered in September 1923 at the instance of Gauri Dutt, there was no reason why the alteration should have been to May 24, 1923 : but the answer to this is that the baraitnama was obviously regarded as a sort of counter-part, that is the way Mr. S. K. Mitra in his well-reasoned argument for the plaintiffs put it-of the sale-deed which was finally executed on May 24, the contents of the two documents show their close inter-dependence. It was argued for the appellant that Mr. Dowring would not have been content to take in return for the payment of Rs. 5,990 an unregistered document like Ex. 6, and stress had been laid on the fact that he was in touch with a Pleader and that for the 500 rupees paid in May to Baijnath he had taken the mortgage bond to which I have already referred. I am not impressed by this contention.

Mr. Dowring was not in touch with his Pleader at that time, and unless he had some idea of the lengths to which the appellant might go, which seems quite unlikely, he may well have been content, temporarily at any rate, to go away with Ex. 6 for the money paid. Gauri Dutt promising to give a proper receipt when the balance of Rs. 10 was sent to him. It has also been contended that the baraitnama required registration and is therefore, inadmissible in evidence. But what the document does is to acknowledge receipt of Rs. 6,000 in part payment of the amount claimed by him in his money suit and to agree to the sale of the bungalow by Baijnath to the purchaser on that occasion and promise to release it from Gauri Dutt''s attachment before judgment:

I do solemnly declare that I have no claim of attachment in respect of the property-for have I any kind of encumbrance thereon. It has been purchased by the same Mrs. G. L. Howatson without any kind of incumbrance or attachment made at my instance.

An attachment before judgment, it is well settled, does not create any title but merely prevents any alienation to the prejudice of the attaching creditor. Mr. G. P. Das for the appellant has cited Sankaralinga Reddi v. Kandasami Tevan 30 M 443 : 17 M.L.J. 334 , a case in which it was held that interference with an attaching creditor''s right to have the property kept in custodia legis for the satisfaction of his debt is an actionable wrong. He has also cited Dhirendra Nath v. Kamini Kumar, AIR 1924 Cal. 786 , in which it was held that a creditor who in has won suit attaches the defendant''s property is among those persons "whose interest is affected by the sale" within Order XXI, Rule 90, but it has to be remembered that in the present case the appellant had not yet obtained his decree, and in Jogendra Nath v. Manmotha Nath 15 Ind. Cas. 688 : 16 C.L.J. 566 : 17 C.W.N. 80, it was pointed out that attachment before judgment is different from attachment in execution after judgment and does not give the attaching creditor any interest even within Order XXI, Rule 90. Our attention has been drawn to several other rulings. In Abdool Hossein v. Goolam Hossein 30 B 304 : 7 Bom. L.R. 142, it was held that the release by a Muhammadan son of his right to inherit does not require registration, as the right is neithar vested nor contingent but only a chance or mere possibility of succession, the appellant''s right to the bungalow under attachment was even weaker, he might possibly not have succeeded in his money suit, and even if he had succeeded he might have been paid off by the judgment-debtor without any execution sale at all or with the proceeds of property other than the bungalow. In Krishnamachariar v. Rukmani Ammal 15 M.L.J. 370it was held that an agreement by a plaintiff not to prosecute his suit against defendant No. 6 who, he had found, had really bought some of the property in suit from defendant No. 1 and even if a decree were passed, not to execute it did not amount to a release of the interest of the plaintiff and did not require registration. In Abdul Samad Khan Khiladar and Another Vs. Bibijan alias Hanifa Khathu and Others, , an agreement not to exercise a right to partition of immovable property was held not to require registration u/s 17, Registration Act.

In Gulab v. Mehndi 67 Ind. Gas. 417 : AIR 1922 Lah. 95 : 3 Lah. 112 : 4 Lah. L J 52, an agreement by one brother not to contest any alienation made by another of his half share of the joint property was held not to require registration. It is unnecessary to multiply such instances. If the purchase on behalf of Mrs. Howatson had been made without the consent of Gauri Dutt as, attaching creditor, Gauri Dutt, could undoubtedly after obtaining a decree in his suit and in execution of that decree purchasing the property himself have turned the private purchaser out, but it does not seem to mo that this amounted before the decree at any rate to any interest in the property or that he had any other right in it as against the private purchaser. The document, therefore, in my opinion, did not require registration. It has also "been suggested that Mrs. Dowring had nothing to do with the transaction, but this overlooks the fact that it was her daughter that was for furnishinng the fund for securing the residence for the aged couple. Mr. Das has pointed out that according to the plaint Gauri Dutt made the bariatnama over on September 13, there being yet another version to be found in Mrs. Willams'' complaint which speaks of the delivery of the bariatnama as on May 24, 1924.

I am not impressed by these discrepancies. The evidence of Mr. Dowring and Mrs. Howatson shows that their memory is not very good in the matter of dates and that they are, not unnaturally not quite able to follow affairs of this kind. As regards the receipt Ex. 7, it has been urged that Taslim P. W. No. 8, who proved the signature of Gauri Dutt on it, is a mere pairvikar who has been used to fill up gaps in the plaintiff''s case and who is therefore entirely unreliable. Taslim may have had something to do with the transaction, for the stamp paper for the sale deed was purchased on November 24, 1922, by him, but his admissions in cross-examination do show that he is entirely unreliable. On that footing it has been contended on behalf of the appellant that there is no evidence that the receipt was signed by Gauri Dutt, for Mr. Dowring sent the 10 rupees by their chaprasi Kamala who afterwards made the receipt over to them, and Kamala has not been called. Mrs. Dowring explains that Kamala is no longer in their service. It is plain that Mrs. Dowring has not falsely fabricated the receipt, but it has been suggested that Kamala may have done so without Mrs. Dowing''s knowledge. It seems to me that that bare possibility must be ruled out in view of the sworn evidence of Kamala in the cheating case where in the presence of Gauri Dutt he stated that on September 13, 1923, ha got Rs. 10 from the mother of the complainant (Mrs. Williams; and paid the amount to Babu Gauri Dutt, whereupon the latter granted the witness the receipt in question which he signed in the witness''s presence.

It has been contended that this deposition of Kamala is inadmissible in evidence because he was not cross-examined on behalf of Gauri Dutt on that occasion. The deposition was apparently admitted in evidence by the lower Court u/s 33, Evidence Act, and having regard to the relative standing of Mrs. Dowring and Gauri Dutt, I have no doubt that the learned Subordinate Judge rightly felt that Kamala was being kept out of the way by the adverse party. Now Section 33 does not require it for such a deposition to be admissible that the adverse party should have actually exercised his right to cross-examine the witness Gauri. Gauri Dutt clearly had the right and opportunity to cross-examine Kamala on the occasion, as the law was understood at that time: see Ashirbad Muchi v. Maju Muchini 8 C W N 833, and though there is force in Mr. Das''s argument that in warrant cases the accused do not often cross-examine the prosecution witnesses before the framing of the charge, I am not prepared to accept the proposition that such failure to cross-examine makes the deposition inadmissible in evidence. Section 33 seems to me clear on the point nor has it been definitely laid down in any of the numerous cases referred to by Mr. Das that the deposition will become inadmissible in evidence because of the failure of the accused to cross-examine.

The weight to be attached to such a deposition is another matter altogether. In my opinion that deposition is sufficient in the circumstances of this case to support the plaintiffs'' story that the receipt had come from the appellant. Reference has also been made to the behaviour of Baijnath after September 11, 1923, in order to throw discredit on Mrs. Dowring''s story of payment to Gauri Dutt. Baijnath apparently stated in the course of his deposition in the money suit that the money had been paid by Mr. Dowring to Gauri Dutt. He did not, however, have Mr. Dowring examined during the trial, though Mr. Dowring had been kept in attendance as a witness, and he now says that he was told by his Pleader not to have any talk with Mr. Dowring at that time and further that he did not even ascertain from Mr. Dowring whether the money had been paid. The result was that he agreed to compromise according to which Rs. 7,752 was due to Gauri Dutt. This could not have been the case if Gauri Dutt had been paid Rs. 6,000 by Mr. Dowring on Baijnath''s account for the bungalow. But the suggestion is that the point was kept open though it is obvious that after the clear admission in the deed that Rs. 7,752 was due Baijnath would not be heard by any Court, in default of any fraud established, to say that Rs. 6,000 had been already paid. In the execution proceedings Baijnath set up a story that the sum of Rs. 8,000 was paid after the compromise of October 5, 1923. At the time of the sale he himself asked that out of the seven properties in question the bungalow should be sold first, and this though there is no dispute that he had executed the sale-deed in favour of Mrs. Howatson more than two years previously. Even before the execution sale Baijnath had treated the bungalow as unsold property and included it m the security which he was required under the orders of the High Court to furnish ill.********* order to obtain a stay of execution While his appeal to the High Court against an order dismissing his objection to execution for default was pending. Mr. Mifcra, has endeavoured to explain Baijnath''s strange behaviour, though without conceding, what cannot be argued by the appellant, that Baijnath''s behaviour was evidence against Dowrings. Mr. or Mrs. Dowring or Mrs. Howatson, it will be seen presently, could hardly have come in before the compromise decree, or even during the execution,, �to set up their rights under the purchase from Baijnath, and in any case they may well have been content to wait until Baijnath definitely repudiated that private sale and had the bungalow sold in execution. I have scrutinised the plaintiffs'' evidence in the light of the detailed criticism on behalf of the appellant, and I see no reason what- � soever, especially in view of the fact that Gauri Dutt has chosen to withhold his account books in support of his story that Mr. Dowring paid him no money, to differ from the findings of fact of the learned Subordinate Judge regarding the payment of Rs. 5,990, on September 11, and Rs. 10, on September 13, to Gauri Dutt.

It has also been contended on behalf of the appellant that Section 47, Civil Procedure Code, is a bar to the plaintiffs suit. Reference has been made to several cases which it is necessary to notice except the Full Bench decision in Ishan Chunder v. Beni Madhub 21 C 62 : 1 CWN 36, in which it was laid down that representatives within the meaning of the section include not only legal representatives (heirs, executors or administrators) but also representatives-in-interest, such as purchasers, whether at a private or at a Court sale, who so far as the interest purchased is concerned, are bound by the decree. The last clause is important for present purposes. If Mrs. Howatson (through Mr. Dowring) purchased the attached bungalow with the consent of the attaching creditor and if she paid this creditor out of the consideration for the sale the money on receipt of which he gave up whatever claim he had to the property under his attachment before judgment and this is what actually happened, it seems clear that she would in no sense be bound by the decree and that Gauri Dutt could. assert no right under his attachment against her purchase, this was in fact what was held in 1886 in the case of Fakir Sahu v. Ganesh Prasad A W N 1886, 176. A purchaser from the judgment-debtor pendente lite cannot be regarded as a representative of the judgment-debtor for the purpose of execution proceedings if it cannot be said that for the purpose of those proceedings he is affected by the decree and stands in the shoes of the judgment-debtor. Mrs. Howatson, was by reason of the appellant''s receipt of Rs. 6,000, and his baraitnama, entitled to ignore the execution proceedings taken by the appellant against Baijnath, and the suit was, in my opinion, not barred by Section 47.

The result is that Gauri Dutt''s appeal fails. I would dismiss it with costs including courts (if still unpaid) of the Pleader guardian appointed by the Deputy Registrar of this Court for the minors who were brought on the record in place of Mrs. Williams (deceased) until Mrs. Dowring herself came forward as the guardian of those minors. The cross-objection of Baijnath need not detain us long. The argument was that it was Gauri Dutt that was found by the lower Court to have wronged the plaintiffs by the sale of the bungalow in execution and that, therefore, Gauri Dutt alone should have been made to pay the plaintiffs'' costs. But it is clear that Baijnath was not without blame in the matter. It was he that was selling the property to Mrs. Howatson, and it was on his account that money was paid to Gauri Dutt. He ought to have stopped the sale by Gauri Dutt by taking proper steps, and there was nothing except his strange and unexplained behaviour that prevented him from ascertaining the facts before consenting to a decree which left the position of the bungalow in unnecessary doubt. The order making him separately liable for costs was not, therefore, unjustified, and the cross-objection must, in my opinion, be dismissed.

Coming to Baijnath''s appeal, Mr. Sri Narain Hahay, has argued that the suit was based on breach of two contracts, one being the contract under which Mrs. Howatson was to pay Rs. 6,000, to Gauri Dutt, and the other the contract embodied in the compromise of October 5. It is not easy to reconcile this with para. 19 of the plaint which says that the cause of action accrued on December 4, 1925, this being the date when the properties purchased by Jugal Kishore were put up to auction, and with the relief asked for against defendant second party of first party as the Court may consider proper, in Clause 4 of para. 20 Of the plaint. Mr. Sahay has asked us not to read the plaint too strictly. Even if that be accepted, however, Baijnath can obtain no relief against Mrs. Howatson, because it is quite clear that the money due to be paid by her was in fact paid before the decree in the money suit, and as to the contract embodied in the compromise the plaintiffs cannot get over the fact that in the compromise Baijnath admitted that Rs. 7,752, was due at that time.

They have not shown that any fraud was committed by or on behalf of Mrs. Howatson, or by Gauri Dutt, in connection with the compromise; and they are bound by Baijnath''s admission of the amount then due. It may be that, as suggested by Mr. Mitra, who appeared for Mr. Dowring, Baijnath was in hurry to get the compromise recorded in view of the facts that Gauri Dutt was making larger and larger demands and that for some reason or other Baijnath would not put Mr. Dowring into the witness box to prove the payment of Rs. 6,000, to Gauri Dutt. Having entered into the agreement and consenting to a decree on the footing that Rs. 7,752, was due on that date, he cannot now be heard to say that that amount ought to have been reduced by Rs. 6,000, or that in taking out execution in accordance with the compromise decree Gauri Dutt and guilty of a breach of contract. The liability of the plaintiffs under their decree is really res judicata. I would, therefore, dismiss the plaintiffs'' appeal, First Appeal No. 14, with costs.

Macpherson, J.

I agree.