Haldher Prasad Singh and Another vs Natha Singh and Others

Rowland, J.—This appeal by the decree-holders arises out of an objection in execution which was decided against the appellants u/s 47, Civil P.C. The mother of the appellants sued to recover, possession of certain properties after setting aside alienations made by her own mother. For the purpose of prosecution of this suit she entered into a champertous agreement with Narsingh Singh. The suit was decreed for part of the zamindari property claimed with mesne profits and costs and the decree was affirmed in appeal. During the pendency of the appeal, Mt. Ramzhari Kuer died in 1932 and the present appellants were substituted. They entered into an agreement with Narsingh Singh similar to that between the lady and him. In pursuance of the agreement they executed on 10th October 1934 a sale deed in his favour.

They are now seeking to execute the decree for costs and there is pending an application by them for ascertainment of the mesne profits. This objection was taken against the execution of the decree for costs by judgment-debtors 21-23. They are brothers of Narsingh Singh who is now dead and they have alleged in their petition of objection that the decree for costs and mesne profits was transferred to Narsingh Singh by the sale deed of 1934 so that the appellants can no longer execute this part of the decree. The Subordinate Judge accepted the case of the objectors; hence this appeal.

The question turns on the reading and construction of the sale deed. The Subordinate Judge has treated it as governed by a passage which he cites and understands to mean that besides the zamindari property the decree for costs and mesne profits was also transferred. In appeal we are invited to examine the document as a whole and to hold that the passage referred to by the Subordinate Judge does not bear the meaning he has attributed to it both on a proper construction of the words used and also because that meaning is contrary to the tenor of the whole of the document.

First the document recites the agreement between Mt. Ramjhari Kuer and Narsingh Singh. She is said to have agreed that

she would execute a sale deed in respect of one-half of the proprietary interest that would be acquired by means of the suit in his (Narsingh''s) favour in lieu of the costs of the suit and his labour.

This part of the document does not allude to any promise by the lady to transfer the costs or mesne profits that might be awarded. The objection of the respondents gave quite a different version of the agreement between the lady and Narsingh Singh.

According to this version, the lady was to execute a deed of absolute sale in respect of one-half of the milkiat interest, costs and mesne profits for which the decree would be passed. Further that the decree would be jointly executed by the lady and Narsingh Singh in respect of their one-half share each of the milkiat interest, costs and profits. So far as this agreement was concerned, the objection of the respondents was totally at variance with the agreement as recited in the sale deed which they rely on to support their case. The next agreement was that entered between the. appellants and Narsingh Singh after the death of Mt. Ramjhari Kuer. What the sale deed recites is that

out of the proprietary interest we would get from the appeals we would execute a deed of sale in his (Narsingh''s) favour in respect of one-half share of the interest claimed in the suits as agreed to by our mother, and we would keep the other half.

In the petition of objection of the respondents this agreement is not referred to. The objection as presented alleged that the sale deed of 10th October 1934 transferred to Narsingh Singh half the decree for costs and mesne profits in addition to half the zamindari property. At a later stage the objectors were permitted to substitute the word ''half and to claim that the entire decree for costs and mesne profits bad been transferred to them. Such a transfer, it will be seen from what has already been said, would go a good deal beyond what had been promised in the previous agreements. Those agreements appear to have contemplated that Narsingh Singh should bear all the costs of the litigation and that he should receive in return simply half of the properties and not that he should receive back as well as the property the costs incurred by him.

In fact Rs. 700 had been spent during the appeal in the High Court by the present appellants and at the time of the execution of the sale deed provision was made for the repayment of this amount of Rs. 700 in cash by Narsingh Singh to the appellants. Coming to the transfer itself the document further recites:

Now Babu Narsingh Singh requested us, the executants, that we should take our dues of Rs. 700 and execute a deed of sale in respect of half share of the proprietary interest that was acquired by means of the suit.

There is no, reference of any request by Narsingh Singh that the executants should execute a deed of sale in respect of any part of the decree for costs or mesne profits. The document then says that the executants have sold the stated shares of proprietary interest

together with (mai) appurtenances and rights of water, forest, etc....In short all the zamindari rights appertaining thereto masewa the decree for costs and mesne profits and also (wobhi) 3 Kathas 4 dhoors of kaimi jote lands.

The particulars of the property transferred are given at the beginning and also at the end of the deed. At the beginning mention is made of the consideration of Rs. 4000 and of the property transferred as 1 anna 14 gandas and 4 kowris of proprietary interest and 3 kathas and 4 dhoors of kaimi jote lands. At the end again details of the proprietary interest sold and specification of properties of the vended property are set out and again there is no reference to any decree for costs or mesne profits. The expression "maseva" was interpreted by the Subordinate Judge as meaning "besides or in addition" and Mr. Mahabir Prasad has referred to the Student''s Practical Dictionary in support of this interpretation; but I find in the dictionary cited, the translation given is not ''besides'' but ''beside'' a meaning much more analogous to ''outside than to'' along with or including. In Shakespear''s Hindustani and English Dictionary the expression ''sewa'' is rendered as ''more, additional, besides, except, save, but, other than, over and above.'' No doubt if the word ''sewa'' stood alone'' there would be no difficulty in holding that the expression was meant to exclude the decree. ''Ma'' means ''what is''. The combined expression ''maseva'' is rendered in Shakespear''s Dictionary ''what is besides; besides, moreover, over and above, save''.

According to its literal meaning then the expression ''maseva'' may be rendered as that which is besides the decree and may imply everything but the decree. Having regard to the tenor of the document as a whole I am of opinion that this is the meaning which the expression must bear in its present context. On that view I would hold that the money decree was not transferred to Narsingh Singh by the sale deed. On that view the objection ought to have been dismissed.

I would allow the appeal, dismiss the objection and direct that the Subordinate Judge proceed with execution according to law. The appellants are entitled to their costs of this appeal and of the objection in the Court below.

Chatterji, J.

I agree.