Vinayak Yeshwant Prabhu Desai vs Ghanashyam Vithal Tirwadkar

Macklin, J.—The plaintiffs in this case have sued for possession of the property in suit and for minor reliefs on the strength of a so-called razinama executed by defendant No. 1 in favour of plaintiff No. 1 in May, 1917. Plaintiff No. 1 at the time of the execution of this deed was the managing khot of a share of a certain village, and defendant No. 1 was one of the occupants. It appears that defendant No. 1 was heavily in arrears with his rent and that he executed the deed in question to relieve himself from further liability. The plaintiffs have now sued him on the strength of that deed, but are met by the contentions (1) that the deed is invalid as a razinama, not being made with the consent of the managing khot or the body of khots as required by Section 10 of the Khoti Settlement Act, (2) that in any event the document cannot be binding upon the share of defendant No. 2, who was separated from defendant No. 1, and (3) that the suit is barred by Order II, Rule 2, Civil Procedure Code. The trial Court gave the plaintiffs a decree and held defendant No. 2 liable to the plaintiffs'' claim along with defendant No. 1. On appeal this decision was reversed and the suit was dismissed on the ground that the document sued upon was not a razinama, being for consideration, and therefore could not be validated by Section 10 of the Act; that even regarded as a razinama it was invalid, because in the circumstances of the case it was not open to the managing khot to give his consent; that defendant No. 2 was separated from defendant No. 1 and was not, therefore, liable to the plaintiffs'' claim; and that the suit was barred by the provisions of Order II, Rule 2. Plaintiff No. 1 now comes in second appeal upon the same contentions as were raised in the lower Courts and with an additional contention that even if the document sued upon is not a razinama by reason of its being for consideration, still it can be regarded as a sale and one which was validated u/s 9 of the Act by the consent of the managing khot.

It is found as a fact by the lower appellate Court that, although the document expressly states that it was without consideration, still there was a real consideration for the document in an undertaking that the land in the holding of defendants Nos. 1 and 2 (which, I may mention, considerably exceeded the actual land relinquished under the deed) should be relieved from forfeiture for non-payment of arrears of rent. That, in my opinion, is good consideration, and I agree with the lower appellate Court in thinking that it takes the transaction out of the category of relinquishments within the meaning of Section 10 of the Act and makes it a sale. Thus any considerations as to the validity of the deed regarded as a relinquishment can no longer be considered, and the question is whether it is valid as a deed of sale. If it is to be valid as a deed of sale, it is valid only by reason of Section 9 of the Act; and under that section it cannot be valid unless it has received the consent of the managing khot. The section itself says " the khot ", which means the body of khots where there are more than one. But it has been held in Ibrahim Mohidin Mhate Vs. Krishnaji Laxman Bhagvat, that u/s 9 of the Act the managing khot is entitled to give consent to the transfer of a permanent tenancy; and I take it that the managing khot is equally entitled to give consent to a transfer by way of sale of a holding. But for the managing khot to give a valid consent on behalf of the khots within the meaning of Section 9 as interpreted in Ibrahim v. Krishnaji, it is clear that the consent must be given by him as managing khot and not in his individual capacity. Here we have a deed which is to all intents and purposes executed by a person who indeed happens to be the managing khot but acts in his personal capacity; and this consideration applies also to any consent he may be presumed to have given from the fact of his being a party to the deed. I am asked to assume that because he was the managing khot and as managing khot must have known of the transaction, therefore the transaction received his consent as managing khot. But I am unable to assume anything of the sort. There is nothing either in the transaction itself or in the subsequent history of the parties to suggest that the managing khot as such was in any way concerned. Thus the transaction is invalid u/s 9 as a sale. I may mention that the same considerations as to the necessity of the consent of the managing khot as such would apply even to a relinquishment u/s 10. That being so, it is not necessary for me to consider the applicability of Order II, Rule 2, or the liability of defendant No. 2, since the suit must be dismissed as a whole in any event.

Defendant No. 1 put in cross-objections to the order of costs, but they were not pressed. Both the appeal and the cross-objections are dismissed with cost two sets.