Jodhan Pershad Singh v. Nanhku Pershad Singh

1. A preliminary objection is taken in this case that the appeal is barred by limitation. The facts of the case are that the plaintiff had a mortgage upon property which constituted part of an entire revenue-paying estate. The mortgage had been created by defendant 1 who had sold his interests to defendants 2 to 11. In the deeds of sale transferring the property to these defendants a provision had been made for the immediate payment of the mortgage money to the plaintiff mortgagee. No payment was made in accordance with this contract, but shortly after the transfer of the property the estate was put up for sale for arrears of revenue and purchased by the defendants 12, 13 and 14. The mortgagee in instituting his suit upon the mortgage, alleged that defendants 12, 13 and 14 were not in any sense of the word purchasers at a sale for arrears of revenue; that in fact the revenue had been purposely withheld and a collusive sale effected in the Collector's Court; and that there had been no change in the proprietorship of the property, defendants 12, 13 and 14 being mere benamidars or trustees of defendants 2 to 11. He therefore sought to enforce his mortgage notwithstanding the revenue sale. The learned Subordinate Judge found as a fact that the plaintiffs' allegations with regard to the position of defendants 12, 13 and 14 were correct. They were not purchasers of the property, they were merely trustees for the former holders. He therefore decreed the plaintiffs' suit and made an order that the mortgage property be brought to sale. Defendant 15 was a purchaser of the interest of defendant 13 in a four-anna share of the property which purported to have passed by the revenue sale. Dafedants 12, 13 and 15 therefore appealed against the decree the grounds of appeal being as follows:

(1) For that on the evidence adduced the Court below is in error in holding that the appellants are farzidars of defendants 2 to 11. (2) For that on the evidence adduced in the case the Court below has erred in holding that the revenue sale was brought about by the fraud of the defendants second party. (3) For that the Court below ought to have held that the purchase made by the appellants was free from all enoumbrances and therefore ought to have dismissed the suit against the appellants. (4) For that the Court below ought to have dismissed the suit against the appellants as barred under S. 36, Act 11 of 1859. (5) For that the Court below has misread and misunderstood the provisions of S. 36, Act 11 of 1859, in holding that the section does not apply in the present case. (6) For that the Court below ought to have dismissed the suit as barred by limitation. (7) For that the Court below has erred in allowing the petition filed by the plaintiff for amendment of the plaint, (8) For that the Court below ought to have held that the appellants were bona fide purchasers for value and that they were not party to the alleged fraud and that their purchase was free from encumbrances. (9) For that the findings arrived at by the Court below are not sufficient in law to prove the purchase to be benami. With the exception of grounds 4 and 5, that the suit was barred by S. 36, Act 11 of 1851, the whole question involved in the appeal was whether the finding of fact that defendants 12, 13 and 15 were mere trustees for defendants 2 to 11 was correct. It was not for a moment denied that if the finding of fact was correct, the legal consequence must be that the property was liable for the mortgage-money.

2. It must have been obvious, as we think, to anyone of ordinary legal capacity that the immediate consequence of a decree in favour of the appellant-defendants upon this question of fact would result in the release of the property from liability under the mortgage. Nevertheless in setting forth the valuation it was stated that:

“the appeal is value at Rs. 20,000. The appeal relates to a declaration, that the revenue sale is not a farzi transaction, and that properties purchased by the appellants at the revenue sale are not liable for the mortgage. As it is not possible to estimate at a money value the subject-matter in dispute, the court-fee of Rs. 10 is paid under Article 17, Clause 6 of the Court-fees Act of 1870.”

3. Mr. Sen for the appellants does not suggest that this was a correct view. He admits that the proper court-fee would at least be ad valorem on the property. But he urges that the view taken by the learned vakil who filed the appeal was a reasonable view. We cannot accept this contention. “Reasonable view,” when used in connexion with the words “good faith” as defined in the Limitation Act, S. 2, Cl. 7, implies that what was dona was done with due care and attention. The learned vakil was fully aware that the object of the appeal was to release the properties purchased by the appellants at the revenue sale, from liability under the mortgage. He states definitely that this is the relief sought, and it cannot be said that it was not possible to estimate at a money value the subject-matter in dispute, for obviously the subject-matter in dispute was not less than the liability, as stated by the decree of the learned Subordinate Judge, or the value of the property, whichever might be the lesser sum. We are of opinion therefore that the filing of this appeal on a court fee of Rs. 10 was not done in good faith within the meaning of the Limitation Act. Further we note that the appeal was filed on 13th July, 1915. On 30th July the Deputy Registrar made the following order on the back of the plaint:

“Ask the vakil of the appellant to state why a court-fee of Rs. 10 only has been paid on this appeal.”

4. And in pencil we find below this: “Shown to vakil, 20-8, 24-8, 30-8, 24-11;” and than under this in blue pencil a note: “please put it up on the Lawazima Board to morrow, 21-11-1915.” The initials of the persons making this note are not legible; but under it in ink is written: “I am ready to pay the ad valorem court-fee. (Sd.) H.P Sinha.” The matter was then put upon the Lawazima Board and an order was passed by our learned brothers Chapman and Mullick, JJ.:

“Subject to any objection that may be taken at the hearing, let the deficit court-fee be received, if paid by Monday next.”

5. It was held in Gaya Loan Office, Ltd.…Plaintiff v. Awadh Behari Lal…Defendant .(1) that where a Court definitely allows time for the filing of the deficit court-fee, the plaint must be treated as if the full fee had been paid in the first instance, but in the case before us there has been no definite order made condoning the delay in filing the deficit. Only a conditional order has been made that it will be accepted subject to any objection that might be made at the time of the hearing of the appeal. The Judicial Committee has expressed very strongly its views with regard to this matter in the case of Krishnasami Ponikondar v. Ramasami Chettiar(2). Their Lordships point out that a question of limitation is one vitally affecting the rights of the parties, and not to be decided in their absence. No question was decided by our learned brothers, Chapman and Mullick, JJ., whether under Section 5 of the Lim. Act, the appellant had shown good reason for the extension of the period within which his appeal might be filed. Under Section 4 of the Court-fees Act, the Court is expressly prohibited from receiving a memorandum of appeal which has not been properly stamped. The memorandum of appeal now before us could not be accepted until the deficit court-fees had been paid, and therefore in order to bring the suit within time we are now required to make an order under Section 5 of the Lim. Act, to the effect that the appellant has satisfied us that he had sufficient cause for not preferring the appeal on a memorandum properly stamped within the prescribed period.

6. We have already set forth our reasons for holding that no vakil acting with due care and intelligence could have imagined that Rs. 10 was a sufficient court-fee. We have also set forth facts apparent upon the back of the plaint, indicating that the vakil not only failed to exercise due care and intelligence in estimating the court-fee, but also when the deficit in the court-fee had been brought to his notice (a deficit which when he gave his attention to the matter he found it impossible to refuse to admit), he acted with wanton negligence from the end of July to the end of November.

7. It has been so frequently held that wanton negligence by vakils is not sufficient ground for the exercise of the Court's clemency under Section 5 of the Lim. Act, that it is unnecessary to quote cases. We are of opinion that the failure of the plaintiff in this case to file this appeal on a memorandum properly stamped was due to gross negligence on the part of his legal advisers and therefore refuse leave to extend the time. The appeal is therefore barred by limitation and is dismissed with costs.

V.S/R.K

8. Appeal dismissed.