1. This is an appeal by the defendant against the judgment of the Subordinate Judge of Chapra, reversing the decision of the Munsif of the same place, in a suit filed by the plaintiff, Ganesh Gir, who is now dead and is represented by his widow and sons, for specific performance of contract in respect of an agreement between the parties to a decree passed on compromise on 10th January, 1949. The suit originally had been filed for a decree for Rs. 446/14/- on a simple mortgage bond executed by the defendant in favour of the plaintiff on 10th June, 1938. It was compromised on 10th January, 1949. The terms settled, inter alia, were that the defendant will pay Rs. 335/- on the amount due, although the claim under the original mortgage deed was Rs. 446/14/- and that he will pay Rs. 50/- in cash and execute a usufructuary mortgage in favour of the plaintiff for the same land for which the original mortgage had been executed. The amount of the bond will be for the balance of Rs. 255/-. It was alleged that the defendant paid Rs. 50/- by money-order and subsequently executed a usufructuary mortgage bond, but the registration of the bond was delayed purposely, and, therefore, the plaintiff filed the suit. There was an alternative relief that in case the document cannot be registered, a decree for Rs. 285/- as principal and Rs. 85/13/6 as interest be passed in favour of the plaintiff against the defendant.
2. The suit was contested by the appellant, who pleaded, inter alia, that the suit was barred by limitation, that the zarpeshgi bond in question was a forged and fabricated document, the defendant having not executed it, and that the plaintiff was not entitled to any decree for money in the alternative.
3. The learned Munsif held that the zarpeshgi bond regarding which specific performance was prayed for was not a genuine document, and, therefore, it could not be registered by the defendant. The plaintiff could not also get a decree for execution of another zarpeshgi bond, nor could he claim, a money decree, and that the plaintiff's claim was barred by limitation.
4. The learned Subordinate Judge, in appeal, agreed with the learned Munsif that the zarpeshgi bond in question was not a genuine document, that the claim of the plaintiff in respect of the prayer for getting the document registered by the defendant was not barred by limitation in view of section 19 of the Limitation Act, because by two notices, Exts. A and A(1) sent by the defendant to the plaintiff on 4th August, 1949, and 27th June, 1949, respectively, the defendant had acknowledged his liability to that extent.
5. It appears that before the learned Subordinate Judge a point was raised that since it was found that the plaintiff had been guilty of preparing the fabricating document he was not entitled to any relief. The case of Tribeni Prasad Singh v. Jai Narain singh, AIR 1937 Pat 425, was cited before him, but he did not accept the contention and distinguished this case. He observed that he did not see any reason for refusing the prayer of the plaintiff for execution of a zarpeshgi deed in lieu of his just dues regarding which his right had been duly acknowledged by the defendant in his notices.
6. The learned Subordinate Judge held that the plaintiff could not claim a decree for money because there was no acknowledgment regarding that right of his in any of the notices, the notices mentioning only the liability in respect of the execution of the zarpeshgi deed. In the result, he allowed the appeal, set aside the judgment and decree of the learned Munsif and directed the defendant to execute a fresh zarpeshgi deed in respect of the property and amount mentioned in the compromise decree within three months of the date of the judgment, failing which the plaintiff was to be entitled to get the deed executed through court.
7. The defendant has come up in appeal, and it has been urged by the learned counsel for the appellant that the appeal should be allowed on the following grounds. The first point raised is that the suit is barred under section 47 of the CPC, and the learned counsel relied on the cases of Jadunandan Prasad v. Bhagwat Mahton, 1955 BLJR 253 : (AIR 1955 Pat 350). Vedapuratti v. Vallabha Valiya Raja, ILR 25 Mad 300 (FB) and Hari Ravji Chiplunkar v. Shapurji Hormasji Shet, ILR 10 Bom 461 (PC). In reply, the learned counsel for the respondents has urged that the decree passed in the previous mortgage suit does not direct registration of the document.
8. The only thing which is mentioned in the decree as a term of the compromise between the parties is that the defendant will execute and complete a usufructuary mortgage bond in favour of the plaintiff. However, the learned counsel has cited the case of Merla Ramanna v. Nallaparaju, (S) AIR 1956 SC 87 and contended that section 47 itself contemplated that even if a suit is separately filed, it can be treated as: an application under this section. The learned counsel for the appellant concedes this point but says that can be done only if it is found that the claim of the plaintiff was not barred by limitation. This brings me to the question of limitation.
9. It has been found by the court below that under section 19 of the Indian Limitation Act the plaintiff's claim is not barred by limitation, that section operating as extending the time in his favour. I think, the view of the court below is correct. The two notices, exhibits A and A(1), referred to above, in terms mention the fact that the defendant was willing to execute; the usufructuary mortgage bond in favour of the plaintiff. That clearly amounted to an acknowledgment of the liability by the defendant in writing signed by his duly authorised lawyer.
10. In the notice dated 6th July, 1949, there is a clear mention by the defendant that the plaintiff had already accepted Rs. 50/- which he had sent to him by money order, according to the terms of the compromise decree, to get the zarpeshgi deed executed. It also refers to the fact that in this convection the plaintiff was ???. Therefore by this notice the defendant calls upon the plaintiff to get the zarpeshgi deed executed within a week from the date of me receipt of the notice by him.
11. I have no doubt in my mind that this amounted to an acknowledgment of the liability of the right of the plaintiff to get a zarpeshgi deed from the defendant, and this acknowledgment was made within a few months of the compromise decree. It, therefore, extended the period of limitation in favour of the plaintiff: the present suit was filed on 7th June, 1952.
12. I am also clear in my mind that this acknowledgment also amounted to the acknowledgment of the liability of debt in favour of the plaintiff by the defendant by necessary implication because the very fact that the defendant wanted to execute a zarpeshgi deed in favour of the plaintiff for the balance of the decretal amount amounted to an acknowledgment of the fact that he was liable to pay to the plaintiff that amount for which he offered to execute the zarpeshgi deed in pursuance of the compromise decree of 10-1-1949.
13. The contrary view taken by the learned Subordinate Judge is, in my opinion, erroneous, and I think that the plaintiff's claim for money in the alternative should not be held to be barred by limitation, and a decree can be passed in his favour, if it is found that in the particular case instead of passing a decree for specific performance of contract, namely, asking the defendant to execute and register a zarpeshgi bond in favour of the plaintiff a decree for money is thought proper to be passed in favour of the plaintiff against the defendant.
14. The second point raised before me was that the plaintiff was not entitled to any relief whatsoever even on the admitted case when he had come to court with a forged document. A large number of cases were cited before me in support of this ???. Five of these cases are of this High Court, and they are Ram Autar Shukul v. Baldeo Shukul*, AIR 1932 Pat 352; AIR 1937 Pat 425, Nagina Rai v. ??? Singh, AIR 1938 Pat 42, Bindeshry Singh v. Pergash Singh, AIR 1939 Pat 255, and Laduram Marwari v. Bansidhar Manvari, 18 P.L.T 640 : (AIR 1937 Pat 572). All these cases deal with negotiable instruments, and, therefore, they are, in my opinion, not authorities for the proposition put before me by the learned counsel in this case having regard to the facts thereof. The Negotiable Instruments Ac: itself contains the provision dealing with the consequences of forging or altering any negotiable instrument.
15. The learned counsel for the appellant, however cited two other cases dealing with documents and bonds, and they are Gogun Chandar Chose v. Dhunidhur Mundul, ILR 7 Cal 616, and Mahila Bai v. Ram Singh, AIR 1954 Madh B. 31. These cases also deal with the conscquence of alterations in a document, the document in controversy having been already in existence. That is the great distinguishing factor, because in the present case the finding is that no document had been in existence. This is not a case of any alteration or forging in an already existing document. I, therefore, think that these cases do not help the appellant in this case.
16. The only case made out by the defendant is that he had made over a stamp paper to the plaintiff for relting a zarpeshgi bond prepared. There is no case here that the document had actually been executed, and subsequently the plaintiff had made certain alteration and fabrications in the document. I agree that in a case in which the plaintiff has not come with clean hands and is guilty of fraud and forgery, he should not be given any relief ordinarily, but in the present case the only thing which can be said against the plaintiff was that for some reason or other not clear, he thought it proper to get a zarpeshgi bond prepared on the stamp paper, showing that it had been executed by the defendant which he had actually not done.
17. Beyond this he does not appear to have done anything to over-reach the defendant and put him to any loss. For instance, he did not mention in the document any amount due to him from the defendant higher than what actually was due nor did he purport to include in the document any amount which was different from or in excess of what the parties had agreed to be the subject-matter of the agreement embodied in the compromise decree dated 10-1-1949. The fraud, therefore, is not of such a grave nature as to bring in the application of the above principle of law to disentitle the plaintiff to any relief whatsoever in this case.
18. The third point raised by the learned counsel for the appellant was that the court below ought not to have granted relief to the plaintiff in the shape of asking the defendant to execute anther zarpeshgi bond, because such a relief cannot be granted in the absence of a contract to that effect. It is said that this relief was granted by the Court below under the general relief prayed for by the plaintiff and that this should not have been done. I do not think it is necessary to express any opinion on this point, because, in the circumstances, I am of opinion that the proper decree to be passed in this case will be to give a decree for money against the defendant and not for having another document from the defendant.
19. Having regard to the circumstances of this case it will not be fair and just to ask the defendant now to execute a zarpeshgi deed in favour of the plaintiff especially when the latter himself sought the relief, in the alternative, for a decree for money against the defendant.
20. The last point also, in this view of the matter, does not call for any opinion from me at present. It is that a decree for registration of the document was not maintainable because the claim for a decree for registration can be made only under section 77 of the Indian Registration Act and not apart from it. In reply to this contention, the learned counsel for the other side has contended, and I think rightly, that this was not a case under section 77 on the Act, because there had been never any prayer made by the plaintiff before the Registrar for registering this document and the latter had refused to do so.
21. It has further been contended on behalf of the respondents that this section does not debar him from seeking any relief Which is open to him and that such a relief as sought here was actually open to the plaintiff to come to court and the case of Jhaman v. Amrit, ILR 24 Pat 325 : (AIR 1946 Pat 62), was relied upon. As I have stated above, having taken the view that the plaintiff should, in the circumstances of the case, get a decree for money only, I do not think it is necessary to express any opinion on this point. The result is that the appeal is allowed to this extent that the plaintiff will get a decree for money to the extent of only Rs. 285/-, principal amount, besides interest at Rupees six per cent per annum from the date of the compromise decree till the date of this suit. The plaintiff shall not get any relief for permission for the registration of the document. To that extent the decree passed by the court below is modified. In the circumstances of the case, there will be no order for costs through out.
D.R.R
22. Order accordingly.