M. Farisa Begum and others vs Smt. Syed M. Fathima and another.

M. M. Pareed Pillay. J.

Plaintiff is the appellant in A.S. 84 of 1981 and defendant is the appellant in A.S. 132 of 1981. Plaintiff filed the suit for recovery of Rs. 13,000/- being the owelty amount the defendant agreed to pay to him and also for accounting. The Sub Judge disallowed the owelty claim but the defendant was, directed to render accounts to the plaintiff regarding the income and expenditure in the estate during 1-4-1972 to 31-3-1996. Plaintiff is the owner of plaint B schedule properties, behaving obtained it by a registered partition deed in 1960. He was allotted D schedule in the said partition. Defendant was allotted C schedule properties. At the time of partition it was agreed that the defendant should pay Rs 13,000/- to the plaintiff towards owelty In 1964 plaintiff and defendant executed an agreement agreeing to mutually exchange specific portions of their respective shares in lieu of the payment of Rs. 13,000/-by the defendant, It is specifically stipulated in the agreement that only on defendant''s execution of the exchange deed the liability of payment of Rs. 13,000/- will be discharged. Plaintiff sent lawyer notice to the defendant calling upon him to execute the exchange deed or else to pay Rs. 13,000/- as agreed. There was no favourable response. The learned Sub Judge held that in view of the subsequent agreement plaintiff cannot claim the amount.

There is no dispute that plaintiff is entitled to Rs. 13,000/-by way of owelty. The question to be considered is as to whether in view of the later agreement plaintiff has lost his right to claim owelty. The Court below held that plaintiff cannot claim the owelty amount in view of Ext. A34 agreement. But the Court'' obviously overlooked the fact that nothing was done by the defendant pursuant to that agreement. The specific stipulation in the agreement that only on defendant''s execution of the exchange deed the liability of payment of Rs. 13,000/- will be discharged was not considered by the Court below. As the defendant failed to fulfil his obligation under Ext. A34, the right of the plaintiff to get the owelty amount cannot be denied - As admittedly nothing was done pursuant to Ext. A34 by the defendant, he cannot contend that his liability to pay the owelty amount is no longer in existence.

Section 62 of the Contract Act provides that if the parties to a contract agree to substitute a new contract for it, or to rescind or alter it, the original, contract need not be performed. But there cannot be any novation of contract, if the subsequent agreement was never acted upon as intended by the parties. In a case where the subsequent agreement could not be enforced due to the default committed by the (sic) or due to any reason traced to him plaintiff cannot suffer on the ground that the parties entered into a subsequent agreement. In such a case the principle of novation cannot be applied so as to deny the plaintiff of the benefits of the earlier agreement. In Chhogalal v. Kanyalal (AIR. 1958 Rajasthan 303) the Court held:

Where parties enter into a contract which if valid, would have the effect, by implication, of rescinding a former contract, and it turns out that the second transaction cannot operate as the parties intended, it does not have the effect, by implication of affecting their - rights in respect to the former transaction. It is only when the second transaction operates as the parties intended that the first transaction can be wiped out.

in order to operate as a novation the subsequent contract must be such that it superseded or extinguished the liability of the earlier contract. There is hardly any evidence to hold that the subsequent agreement has superseded the earlier agreement. Hence it cannot be said that plaintiff is not entitled to claim the owelty amount due to him.

It is the case of the plaintiff that defendant continued to be in management of the estate from 31-3-1972 till 31-3-1976 and that he was not paid any share of the profits. The Court below held that defendant was managing the estate and that he is bound to render the accounts of his management during the period. The above conclusion is fully, supported by the evidence in the case. There is no merit in the appeal filed by the defendant. A. S. 132 of 1981 is dismissed with no order as to costs. The finding of the Court below that plaintiff is not entitled to claim Rs. 13,000/- from the defendant is set aside. It is hereby held that plaintiff is entitled to the said amount with 6% interest from the date of suit till realisation. A. S. 84 of 19-81 is allowed with costs.