Bookmark
PDF
Share
CaseIQ

Bajrangi Prasad Singh v. Kesho Singh

Patna High Court

Jun 1, 1927

Judgment

Subsequent
References

CaseIQ

Important Paras

Please sign up to view Important Paras.

Smart Summary (Beta)

Judgment Summary — Excerpt from Das, J. (with concurrence by Allanson, J.)

Factual and Procedural Background

The opinion concerns a mortgage suit arising out of two mortgage bonds (dated 3rd March, 1902 and 23rd June, 1902) and a dispute over whether the suit is barred by limitation and whether certain defendants are estopped from denying the plaintiffs' security. The material facts (as stated in the opinion) include:

Kesho Singh (the karta of a joint family) is alleged by the plaintiffs to have made part payments and to have signed account adjustments on the backs of the bonds in the years 1324 and 1328; signatures and entries exist for payments and adjustments in prior years (payments alleged from 1316 in the first bond and from 4320 in the second bond, in the plaintiffs' account).
There had been prior friction between Kesho Singh and Ram Swarup Singh: Kesho bought property in his son's name; Ram Swarup objected claiming joint family funds were used and his objection was dismissed by the land registration officer. The record does not state whether Ram Swarup subsequently sued on that point.
The learned Subordinate Judge treated Kesho Singh's conduct and the background dispute as creating suspicion of collusion or conspiracy between Kesho Singh and the plaintiffs against Ram Swarup.
The defendants first party had mortgaged certain properties (including some jote lands) as security for ticca rent; those jote lands had earlier been mortgaged to the plaintiffs under the bond of 23rd June, 1902. Plaintiffs obtained a decree against the mortgagors and proceeded to sell the mortgaged properties, allegedly without disclosing the prior incumbrance on the jote lands. Subsequent purchasers (defendants second party) relied on non-disclosure and claimed estoppel.
The learned Subordinate Judge dismissed the plaintiffs' claim; the appeal under review challenges that decision on limitation, collusion/conspiracy, account adjustments, and estoppel.

Legal Issues Presented

Whether the plaintiffs' suit is barred by limitation, or whether part payments made by Kesho Singh (as karta) operate to save the claim from limitation.
Whether Kesho Singh's alleged part payments or conduct indicate collusion or conspiracy with the plaintiffs such that those payments should be disregarded.
Whether the account adjustments of 1324 and 1328 are suspicious and ought to be treated as manufactured or unreliable.
Whether the plaintiffs are estopped from enforcing their security in respect of the jote lands against subsequent purchasers (defendants second party) because the plaintiffs did not disclose a prior incumbrance in earlier proceedings.

Arguments of the Parties

Plaintiffs' Position

The plaintiffs alleged part payments and regular interest payments (entries on the backs of the bonds, signed by Kesho Singh) which, taken together, negate a defence of limitation.
The plaintiffs sought to enforce their mortgage bonds (3rd March, 1902 and 23rd June, 1902) and obtain the usual mortgage decree and sale of mortgaged properties to recover the debt.

Defendants' Position (as reflected in the Subordinate Judge's reasoning)

The learned Subordinate Judge considered the history of dispute between Kesho Singh and Ram Swarup as evidence of enmity and thereby inferred possible collusion between Kesho Singh and the plaintiffs to prejudice Ram Swarup.
It was suggested that Kesho Singh's written statement, filed on behalf of himself and his minor sons, amounted to a practical admission favorable to the plaintiffs (the Subordinate Judge inferred Kesho was "completely on the side of the plaintiffs").
The defendants argued (at least for some defendant) that part payments by Kesho Singh would not operate to save the claim from limitation as to Ram Swarup and his sons, relying upon the Madras High Court decision in Narayana Ayyar v. Venkataramana Ayyar.
Defendants second party (subsequent purchasers) argued estoppel: the plaintiffs, having omitted to disclose a prior incumbrance on the jote lands in prior proceedings, should be estopped from enforcing their security against the purchasers.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Narayana Ayyar v. Venkataramana Ayyar (Madras High Court)	Case concerned an acknowledgment under section 19 of the Limitation Act (not a part payment under section 20).	The court distinguished this case as being about acknowledgement (s.19) rather than part payment (s.20), found it was decided on its own facts, and held it was not applicable to the present case.
Sarada Charan Chakravarti v. Durgaram De Sinha	(As applied by this court) Authority from the Calcutta High Court supporting that the karta of a joint family may act as the agent of the family and make part payments on its behalf.	The court preferred and followed this Calcutta High Court authority in concluding that the karta's part payments can save limitation for the family’s claim.
Har Prosad Das v. Bakshi Harihar Prosad Singh	(Calcutta High Court authority) Supports the principle that part payments by the karta bind the joint family for limitation purposes.	The court relied on this decision as part of the body of Calcutta High Court authority it preferred over the Madras decision, applying the principle to hold the suit not barred by limitation.
Chandra Kanta Bhattacharjee v. Behari Lal Bhattacharjee	(Calcutta High Court authority) Further support for the proposition that the karta is the family's agent for making binding part payments.	The court followed this authority together with the other Calcutta decisions to justify treating Kesho Singh's alleged part payments as operative to stop limitation.

Court's Reasoning and Analysis

Das, J. undertook a step-by-step analysis of the contested findings and legal issues:

On the allegation of collusion or conspiracy between Kesho Singh and the plaintiffs: the judge rejected the Subordinate Judge's inference of conspiracy as speculative. He reasoned that Kesho Singh, as karta of the joint family, had the same interest in the family properties as Ram Swarup and could not reasonably be thought to conspire to injure the family (and thus himself). The prior objection by Ram Swarup to the land-registration entry (dismissed by the officer) was insufficient to establish the enmity-based inference of conspiracy relied upon by the Subordinate Judge.
On Kesho Singh's written statement and the Subordinate Judge's view that Kesho was effectively on the plaintiffs' side: Das, J. stated that if Kesho had truly made part payments as alleged, it would have been dishonest for him to defend the suit on behalf of the joint family; he found it unjustified to assume that a person must contest every suit regardless of whether a genuine defence exists. Therefore, the Subordinate Judge's suspicion based on the written statement was misplaced.
On the account adjustments in 1324 and 1328: the court considered the adjustments and signatures genuine and explained a plausible commercial reason for the adjustments — to ascertain the liability of the mortgagors. The presence of Kesho Singh's signatures on the entries rendered the suggestion of conspiracy unnecessary and speculative.
On limitation and the effect of part payments: the court distinguished Narayana Ayyar (a s.19 acknowledgement case) from the present question of part payment under section 20. Preferring a line of Calcutta High Court authorities, the court held that the karta of a joint family acts as agent of the family and is duly authorised to make part payments on the family's behalf; therefore, the part payments (if made) prevent the claim from being barred by limitation. On this basis the judge concluded the suit was not barred by limitation and that the plaintiffs were entitled to a decree.
On estoppel asserted by defendants second party (subsequent purchasers): the court reconstructed the factual sequence — the plaintiffs obtained a decree and executed a sale of mortgaged properties, but did not disclose a prior incumbrance on the jote lands in those proceedings. However, the crucial fact (as found by the appellate court) is that the defendants second party did not purchase the jote lands at the sale held in execution of the decree against the defendants first party. Because the second party purchasers did not buy the contested jote lands in that sale, the court held no estoppel arose against the plaintiffs in the present suit.
Remedial decision and interest/costs: having concluded the Subordinate Judge's findings were speculative and the legal position favoured the plaintiffs, the court allowed the appeal, set aside the lower court's judgment and decree, and granted the plaintiffs the usual mortgage decree on the two specified bonds. The court also found the contractual interest excessive, reduced the allowable interest to 12% per annum with yearly rest until the date fixed for payment (six months from judgment) and 6% per annum thereafter, and awarded costs to the plaintiffs.

Holding and Implications

Core Ruling: The appellate court allowed the appeal, set aside the judgment and decree of the Court below, and gave the plaintiffs the usual mortgage decree based on the bonds of 3rd March, 1902 and 23rd June, 1902.

Specific orders and immediate consequences for the parties:

The plaintiffs' mortgage decree on the two bonds is granted.
Interest was reduced by the court as excessive: fixed at 12% per annum with yearly rest up to a date fixed for payment (six months from the date of this judgment), and at 6% per annum thereafter.
The date for payment was fixed at six months from the date of the judgment; interest at 12% per annum with yearly rest must be calculated up to that date and thereafter at 6% per annum.
The plaintiffs were awarded their costs throughout.

Broader implications and precedent: The court expressly preferred a set of Calcutta High Court decisions that recognise the karta of a joint family as authorised to make part payments on behalf of the family, and distinguished a Madras High Court decision as inapposite on its facts and as involving a different statutory provision (acknowledgement under section 19 rather than part payment under section 20). The opinion does not state that it creates any novel legal doctrine beyond applying and preferring those authorities; its holding is applied to the facts before the court and results in relief for the plaintiffs in this suit.

Concurrence: Allanson, J. agreed with the reasoning and result.

Show all summary ...

Das, J.:— (After stating the facts set out above proceeded as follows): In my opinion the argument which found favour with the learned Subordinate Judge is far too speculative to deserve any serious consideration. It is within the bounds of possibility that a money-lender may become anxious to save his claim from being barred by limitation and therefore demand part payment before the claims are about to be barred by limitation. The learned Subordinate Judge says that there is quarrel between Kesho Singh and Ram Swarup Singh and he refers to a case between them eight years ago. What happened was this Kesho Singh purchased some property in the name of his son who applied for mutation of his name in the land-registration department. Ram Swarup claimed that the property was acquired out of joint family funds and that the name of the son of Kesho Singh should not be recorded in the land registration department. The objection of Ram Swarup was dismissed by the land registration officer; and we do not know whether Ram Swarup instituted any suit to enforce his claim in regard to the property purchased; but the learned Subordinate Judge fastens upon this circumstance to found a case of enmity between Kesho Singh and Ram Swarup and his conclusion is that this enmity is sufficient in itself to induce Kesho Singh to enter into a conspiracy with the plaintiffs in this action as against Ram Swarup; but it, seems to me that Kesho Singh could not possibly injure Ram Swarup without injuring himself. The properties are the properties of the joint family and Kesho Singh as the karta of the joint family is as much interested in these properties as Ram Swarup. It seems to me idle to contend that Kesho Singh should enter into a conspiracy with the plaintiffs in order to injure himself.

The learned Subordinate Judge next regards the attitude of Kesho Singh in this case with suspicion. He says as follows:

“Both parties, i.e, plaintiffs and defendant no. 2 accuse each other of being in collusion with Kesho Singh. One has merely to peruse the written statement of Kesho Singh filed in this case to find out which of the two aforesaid versions is correct. This written statement was filed not only by Kesho alone but also on behalf of all his minor sons including the minor son of Murli Singh also who was an executant of the two disputed bonds. What is the defence of these defendants? A practical admission of the whole case of the plaintiffs. It is therefore absurd on the part of the plaintiffs to contend that Kesho Singh is in collusion with Ram Swarup, the only defendant, who in spite of odds presented a hold front to these plaintiffs and contested their claim keenly. It is therefore needless for me to labour this point. Suffice to say that Kesho Singh is proved to have been completely on the side of the plaintiffs. This is another important circumstance in favour of Ram Swarup and forms another link in the chain of his defence regarding limitation.”

I am wholly unable to understand the argument of the learned Subordinate Judge. If Kesho Singh did make the part payments as alleged by the plaintiffs, it would not only be idle but dishonest on his part to defend the suit on behalf of the joint family. But apparently the learned Subordinate judge is under the impression that every suit should be contested whether there be a defence or not. With this view I do not agree.

Lastly the learned Subordinate Judge is suspicious of the adjustment of accounts in 1324 and 1328. He says as follows:

“Next we come to the alleged adjustment of hisabs in 1324 and 1328. Payments used to be made according to plaintiffs' case towards interest regularly from 1316 in the first bond and from 4320 in the second bond. These payments used to be duly entered on the back of the bonds and signed on every occasion by Kesho Singh. Admittedly Kesho did not want to make full payment of the dues of the two bonds on the dates on which the hisabs are said to have been written and signed by him in 1324 and 1328. It is therefore inexplicable why on those dates there was any adjustment of the entire dues of these two bonds.”

For myself I have no difficulty in understanding the position. The parties wanted to have the liability of the mortgagors ascertained and that is the reason why the accounts were adjusted on two occasions—once in 1324, and once in 1328. They admittedly bear the signature of Kesho Singh and I can find no explanation why Kesho Singh should enter into a conspiracy with the plaintiffs to injure himself. In my opinion the decision of the learned Subordinate Judge on this point is entirely speculative and should carry no weight with us.

The learned Subordinate Judge next says that the part payments even if made by Kesho Singh will not save limitation so far as Ram Swarup and his sons are concerned and he relies upon the decision of the Madras High Court in Narayana Ayyar v. Venkataramana Ayyar. That was a case of an acknowledgment under section 19 of the Limitation Act and not of part payment under section 20 of the Limitation Act. That case was moreover decided on its own facts and they are not applicable to the facts of the present case. For myself I prefer to follow the decisions of the Calcutta High Court in Sarada Charan Chakravarti v. Durgaram De Sinha, Har Prosad Das v. Bakshi Harihar Prosad Singh and Chandra Kanta Bhattacharjee v. Behari Lal Bhattacharjee. In my opinion the karta of a joint family is the agent of the entire family duly authorised to make part payments on behalf of the family. I hold that the suit is not barred by limitation and that the plaintiffs are entitled to a decree as claimed.

On the question of estoppel the learned Subordinate Judge has come to the conclusion that so far as Ram Swarup is concerned, the defence is not avail able to him; but so far as the defendants second party, namely, the subsequent purchasers, are concerned, the defence is available to them. The point arises in this way. The defendants first party took a ticca of some properties belonging to the plaintiffs and as a security for the ticca rent payable by them they gave a mortgage of certain properties to the plaintiffs. The mortgage included certain jote lands which had already been mortgaged by them to the plaintiffs under the bond of the 23rd June 1902. The ticca rent was not paid and the plaintiffs sued upon their mortgage. They obtained a decree in due course and proceeded to sell the mortgaged properties. Now it appears that they did not disclose the fact that the jote lands were already the subject of a prior incumbrance. The defendants second party have purchased these lands and they claim that the plaintiffs not having disclosed their incumbrance in the proceedings to which I have already referred are estopped from enforcing the security so far as the jote lands are concerned in this suit as against them. The answer to the argument is that the defendants second party did not purchase the jote lands at the sale held in execution of the decree obtained by the plaintiffs as against the defendants first party. In my opinion no question of estoppel arises in this suit.

I would allow the appeal, set aside the judgment and the decree passed by the Court below and give the plaintiffs the usual mortgage decree on the foot of the mortgage bonds of the 3rd March, 1902, and the 23rd June, 1902. The interest, however, is excessive and it has not been shown that there was any necessity to borrow money at the high rate of interest charged. We reduce the interest to 12 per cent, per annum with yearly rest. We fix the date of payment six months from the date of this judgement. Interest at 12 per cent, per annum with yearly rest must be calculated up to the date fixed for payment, and thereafter at six per cent, per year. The plaintiffs are entitled to their costs throughout.

Allanson, J.:— I agree.