AI Structured Summary
Not yet generated for this judgment
Judgment
Chhatpar, J.—This second appeal arises out of a suit filed by the Appellant for a declaration that a certain land bearing Survey No. 6 known as Secretariat Vadi situated in Gondal is of the Plaintiff''s absolute ownership and that a Khedukhat obtained from the Plaintiff by the Defendant is null and void and for the consequent prayer for injunction restraining the Defendant from interfering with the possession of the Plaintiff. The Plaintiff alleged that he had purchased this land in 1944 from one Kala Ladha who held it under a Lekh issued in 1942 under the Gondal Land Revenue Code. The Plaintiff was duly recorded as Khatedar of the land and paid assessment from 1944 to 1947 when it was alleged the land was taken from him by the Maharaja of Gondal State and granted to the Defendant who is the Yuvrani of the Gondal State. It was alleged that under coercion of the Ruling Authority, he permitted his sons to execute a Khedukhat in favour of the Defendant acknowledging the Plaintiff as the tenant of the Defendant and having taken the land on lease for cultivation for the Samvat year 2004 for the rental of Rs. 10/ -. This Khedukhat is dated 13-6-47. Thereafter when the integration and formation of the State of Saurashtra came into being in early 1948, the Plaintiff attempted to get back the land and for that approached the Collector and other revenue authorities and having failed to get redress has now filed the present suit. He claims that his title to the land was that of an absolute owner; it was both heritable and transferable; he contended that the acquisition of the land by the Maharaja was illegal and the grant of the land to the Defendant was consequently void; he also alleges that the Khedukhat executed on his behalf by his sons was executed under coercion and therefore void; he therefore seeks for declaration of his ownership and the consequent relief of injunction against the Defendant. The land is in his possession and hence no prayer for possession is made.
The Defendant''s contentions were that the suit was not maintainable by virtue of Articles 12 and 14 of the Covenant, whereby the Rulers of the former Kathiawar States agreed to form the State of the United State of Kathiawar now called the State of Saurashtra. The Defendant also claimed that the land has been granted by the Ruler of Gondal State under a regular Lekh passed in her favour and therefore her title is complete. The Defendant also relied upon the Khedukhat, and contended that the Plaintiff was estopped from questioning the Defendant''s, title. A technical objection was also raised that the suit for declaration without seeking possession was not maintainable but this objection is apparently not maintainable as the possession was already with the Plaintiff. Both the lower Courts held that the Defendant cannot claim immunity from being sued either under Article 12 or Article 14 of the Covenant. On merits both the lower Courts held that the Khedukhat was not executed under coercion as alleged by the Plaintiff and that the Plaintiff was consequently estopped from disputing the title of the Defendant but nevertheless the lower Courts went into the question of title and held that the acquisition or resumption of the land by the Ruler of Gondal was legal and that the Defendant''s title to the land by grant by the Ruler was valid. The suit and the appeal of the Plaintiff were consequently dismissed. The lower appellate Court ordered each party to bear its own costs commenting upon the action of the Ruler as arbitrary and on the apparent inequity of depriving the Plaintiff of valuable land with out paying any compensation therefor. The Plaintiff has now come in second appeal to this Court
The same points urged in the lower Court have been urged before me; but I intend to deal with the points raised in the case not in the serial order and the manner as done by the lower appellate Court. I shall first deal with the question whether Article 12 or Article 14 of the Covenant gives immunity to the Defendant from being sued in any Court of Saurashtra. They read as under:
Art, 12. The Ruler of each Covenanting State, as also the member of his family shall be entitled to all personal privileges, dignities and titles enjoyed by them, whether within or outside the territories of the State, immediately before the 15th day of August 1947.
Art. 14. No enquiry shall be made by or under the authority of the State of Kathiawar, and no proceedings shall lie in any Court in that State, against the Ruler of any Covenanting State whether in a personal capacity or otherwise, in respect of anything done or omitted to be done by him or under his authority during the period of his administration of that State.
Article 12 has apparently no application and Mr. Chudgar the learned Advocate for the Respondent has not addressed any remarks as regards it. He has mainly relied upon Article 14 on the ground that it gives immunity to the Ruler of Gondal from being sued in any Court and argues that the same immunity will apply to any person who derives title from him. But this argument is apparently fallacious. The immunity from being sued is personal to the Ruler himself and cannot extend to persons other than the Ruler. Article 14, therefore, is no bar to the present suit being filed against the Defendant.
The next point to be considered is whether the Khedukhat in question is vitiated by coercion and therefore of no effect. This document is in fact executed by Vashram and Ramji, the two sons of the Plaintiff purporting to act on behalf of the Plaintiff as his Vahivatdars. It is not executed by the Plaintiff himself but the Plaintiff has not challenged the authority of his sons to execute it on his behalf So it would be binding upon him, unless the Plaintiff proves that it was executed by using coercion. Now there is a concurrent finding of both the lower Courts against the Plaintiff that the Khedukhat was not executed by coercion or using force or threats as the Plaintiff attempted to make out, but was a document voluntarily entered into on behalf of the Plaintiff and it is only after the integration and formation of the State of Saurashtra that the Plaintiff tried to resile from it and claim the land as full owner. The question of coercion is one of fact and the finding of the lower appellate Court is binding on a Court of second appeal. Mr. Baxi, the learned Advocate for the Appellant, has not seriously questioned this proposition of law in view of ample authority in favour of it. Reference may be made to the Privy Council case of -- AIR 1932 89 (Privy Council) , where the Privy Council regarded the question whether a transaction was procured by fraud and undue influence, one of the parties being in a fiduciary relationship to the other, as a question of fact. This case was followed by the Bombay High Court in the case of -- Gopal Bhaurao Jape Vs. Jagannath Pandit Vasudeorao Pandit Maharaj, , holding that the question whether or instrument was obtained from a person by undue influence and misrepresentation was and must be a question of fact. In an earlier decision of the Bombay High Court in the case of -- Bhimbhat v. Yeshwantrao ILR 25 Bom 126, Fulton J. at page 128, observed:
The question whether the relations between the parties were such that one of then was in a position to dominate the will of the other, and used that position to obtain an unfair advantage over the other, was one of fact, with the finding on which we could only interfere if there were no evidence to support it.
I may also mention the well-known dictum repeated in several cases that the state of a man''s mind is as much a fact as the state of his digestion, and referred to by the Privy Council in the case of -- C. Sabhapathi v. G. Huntley AIR 1938 P.C. 91 at P. 97, which principle was reiterated by the Calcutta High Court in the case of -- Premsukhdas Singhynia Vs. N.C. Bural and Pyne, , I had occasion to refer to these cases in my recent judgment in -- ''Civil Second Appeal No. 9 of 1951'' in the case of -- Trivedi Mulshaker Pragji v. Bhanumati Bhimji.
But Mr. Baxi the learned Advocate for the Appellant has tried to propound that the facts as admitted or proved in the case amount to a case of coercion or undue influence. in law. These facts according to him are that it was established (i) that the Plaintiff had title as Khatedar and such title was both heritable and transferable; (ii) that shortly before 13-6-47, the order of taking possession of the land from the Plaintiff and giving the same to the Defendant was passed and the order was actually served on 13-6-47; and (iii) that on this very same day i.e., 13-6-47 the Khedukhat has been passed. These three established facts lead to no conclusion other than that the Plaintiff was obliged to enter into the Khedukhat by coercion. But this argument in my opinion is fallacious. In a certain set of circumstances, these facts would no doubt be relevant and important factors in coming to the conclusion whether a document was executed under coercion or undue influence. But it is equally possible that these three facts may lead to a transaction perfectly legal and free from coercion or undue influence e.g. the Plaintiff in the present case might have realised the futility of raising any objection to the act of acquisition or resumption by the Maharaja of Gondal and making the best of a bad situation might have voluntarily entered into a transaction of tenancy on extremely advantageous terms as indeed appear to be the case. Consequently the argument of the learned Advocate for the Appellant that no other conclusion can be arrived at except that of coercion or undue influence from the combination of the above three facts is not tenable.
Coercion and undue influence are questions of fact depending upon the circumstances of each case. The Plaintiff in the present case had not set up the case of undue influence in the plaint but had confined his case to that of coercion alleging that he was forced to enter into the Khedukhat by the authority of the State under threats and fear. Mr. Baxi, the learned Advocate for the Appellant has largely addressed me on the document being executed under undue influence and has tried to take advantage of Sub-section (8) of Section 16, Contract Act, and argued that once it was established that the Plaintiff was one of the subjects of the Gondal State, that fact itself should raise the inference that the Ruler was in a position to dominate the will of the Plaintiff. This subsection also requires Anr. ingredient that the transaction on the face of it or on the evidence must be unconscionable. He has failed to impress me on both the requirements of Sub-section (3) apart from the question that he has tried to make out a new case which was not set up in the pleadings.
The mere fact that the Plaintiff was then the subject of the Ruler does not lead to the inference that the Defendant, who is a daughter-in-law of the Ruler, was in a position to dominate over the will of the Plaintiff nor does the transaction itself appear to be unconscionable, as a very large piece of land is given on a nominal rental. The evidence on the record to which reference has been made by the learned Advocate shows that this document was executed when neither the Ruler nor the Defendant nor even her Karbhari were present. The Plaintiff was not obliged to take possession of the land as a Khedut of the Defendant. The conclusion appears to be too strong that he wanted to take full advantage of a bad situation and got this land on the basis of a tenancy at very indulgent terms. There is also evidence of some negotiations for compensation which appear to have failed. It is only after the integration and formation of the State of Saurashtra that the Plaintiff has tried to question the validity of the Khedukhat and get back the land instead of making any attempt to get compensation either from the Maharaja or from the Saurashtra Government, who have under the Covenant taken over the obligations of the Maharaja. The plea of the Khedukhat having been executed under coercion or undue influence therefore fails.
If the Khedukhat stands as a valid and operating document, the estoppel of a tenant from questioning the title of his landlord comes into being. This proposition as laid down by Section 116, Evidence Act, and reiterated in a number of rulings both of the Privy Council and of the different High Courts is too well known to need any authority. I may however refer to the leading Privy Council case of -- Bilas Kunvar v. Desraj Ranjit Singh and Ors. ILR All 557 , wherein it was held that a tenant who has been let into possession cannot deny his landlord''s title, however defective it may be, so long as he has not openly restored possession by surrender to his landlord. The Plaintiff is in possession of the land and such possession from the date of the Khedukhat is attributable to the tenancy created by the Khedukhat. He cannot relinquish that character and rely upon the prior possession as Khatedar. He has actually paid rent under the Khedukhat and attorned to the Defendant. Under the circumstances, the fact that the Plaintiff was already in possession as Khatedar does not prevent the operation of the estoppel. Discussion on this subject is to be found in Monir''s Law of Evidence, Third Edition, at pages 1000 and onwards. The Privy Council in the case of -- AIR 1937 251 (Privy Council) observed that the words "at the beginning of tenancy" occurring in Section 116 do not give a ground for a contention that when a person already in possession of land becomes a tenant to Anr. , there is no estoppel against his denying his lessor''s title. The true question to be decided in such cases is not whether the tenant was let into possession by the landlord, but whether a valid tenancy had arisen; the tenant may show that no valid tenancy was created between the landlord and himself because the lease was executed or the attornment made under a mistake, or in consequence of fraud, misrepresentation or coercion practised on him by the landlord. But in the absence of any such circumstances as would avoid a contract, the execution of a lease or a verbal agreement to hold as a tenant would constitute a valid tenancy and bring in the estoppel. Section. 116 relates also to tenancies other than those in which the tenant was first let into possession. The principle of estoppel applicable will be the same whether a, man was let into possession or whether he has continued in such possession by specific agreement between himself, and his landlord. (See in this connection the commentary and cases cited at p. 1001 in Monir''s Law of Evidence) I am therefore of the opinion that in view of the finding that the Khedukhat is binding upon the Plaintiff, the lower Court should not have gone into the question about the validity of the title of the Defendant.
The learned Advocate for the Appellant has strongly contended that the acquisition or resumption by the Maharaja of the land in question and of its grant to the Defendant and the Khedukhat executed by the Plaintiff were in fact parts of the same transaction and therefore it is necessary to go into the validity of the acquisition or resumption and the grant to the Defendant as part of the evidence for determining the validity of the Khedukhat, which comes in the way of the Plaintiff. But I am clearly of the opinion that by no stretch of imagination can these three transactions, be considered as one, although they may form a series of events in an episode. In law the transaction of acquisition or resumption would be an act of the Maharaja as against the Plaintiff, which will be complete irrespective of the subsequent grant of the land to any third party. Similarly the grant of the land to the Defendant by the Maharaja would; be a separate transaction by itself. And lastly the Khedukhat executed between the parties to the suit was a transaction entirely by itself recording certain terms on which the land was given to the Defendant for cultivation. The lower appellate Court has upheld the validity of the Khedukhat even on the assumption that the act of the Maharaja in depriving the Plaintiff of the land was arbitrary and unjust Hence the enquiry into the title of the Defendant becomes a matter outside the scope of the suit, once it is held that the Khedukhat is binding on the Plaintiff and the estoppel of the tenant comes into play. 1 shall be frustrating the purpose of the estoppel if I went into the question of title and gave decision thereon. The result is that this appeal fails, as no other question remains for consideration.
Mr. Chudgar the learned Advocate for the Appellant has commented on the adverse remarks of the lower Court against the Maharaja of Gondal and has requested me to order their deletion. He has also claimed that the lower Courts have erred in not granting costs to the Defendant. In view of my decision that it was not open to the Plaintiff to go into the question of the title of the Appellant, I am of the opinion that the lower Court should have refrained from making any remarks against the Maharaja of Gondal and more so when it is held that his action in acquiring or resuming the land from the Plaintiff was legal. I remain content with making these observations.
As regards costs, I do not propose to disturb the orders of the lower Courts. But I dismiss, the present appeal and grant costs to the Respondent to be paid by the Appellant, who will bear his own costs.