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Parbhu Dayal v. Ali Ahmad
Structured Summary of the Opinion (Stanley, C.J. and Banerji, J.)
Factual and Procedural Background
This matter arises from a suit for redemption of a usufructuary mortgage dated 5 February 1863 executed by Ram Bakhsh in favour of Debi Das over a 10-biswa share in the village of Lodhamai. The mortgage provided that profits would be appropriated in lieu of interest, except that Rs. 100 per annum was to be paid to the mortgagor.
In 1866 the mortgagor, Ram Bakhsh, sold an equity of redemption in 7 biswas of the mortgaged land to Abdul Rashid, Abdul Aziz and Mahmud Khan (sons of Zahur Ahmad Khan). In 1871 Zahur Ahmad Khan purchased at auction a portion (described in the record with specific biswa/biswansi/kachwansi quantities) of the remainder; the remaining small portion was purchased by Debi Das, which had the effect of breaking up the integrity of the original mortgage.
Zahur Ahmad Khan died in 1873. In 1877 his three sons, under the guardianship of their mother, sued Debi Das for redemption of the 1863 mortgage. The court of first instance, on 25 May 1878, decreed that the plaintiffs pay Rs. 6,967-1-4. The plaintiffs obtained possession under that decree on 17 July 1878. Debi Das appealed; on 2 June 1879 the appellate court (this Court) held that the mortgagee was entitled to an additional sum (nearly Rs. 9,000) and varied the decree of the court below by directing payment of that further sum in addition to the amount previously decreed.
The additional sum directed by the appellate court was not paid, and as a result the decree became infructuous. Debi Das resumed possession on 1 April 1880 and sought mesne profits for the period of dispossession. On 13 March 1881 the court below awarded Rs. 5,615-14-10 (the record contains gaps at certain points regarding some particulars of subsequent steps).
In execution of that award (and for its realisation) there was an auction sale in 1881. The sale proceedings and later transactions led to a sequence of suits and sales: multiple suits to redeem, a dismissal in 1905 of one suit for procedural non-joinder (the heirs of Debi Das were not joined), and subsequent sales by the three brothers to third parties (including a sale to Parbhu Dayal in 1905 and a suit instituted by Parbhu Dayal in January 1909). The present appeal arises from the dismissal by the court below of Parbhu Dayal's suit for redemption.
The court below dismissed the plaintiff's suit on the ground that the equity of redemption of the mortgagors had validly passed to the mortgagee Debi Das under the 1881 auction sale, and thus the plaintiff, as purchaser from the mortgagors, had no right to redeem.
Legal Issues Presented
- Whether the court below had jurisdiction to award mesne profits in execution of the appellate outcome despite the appellate decree not specifically directing payment of mesne profits.
- Whether the auction sale held in 1881 for the realisation of the mesne profits was valid and conveyed the equity of redemption to the purchaser (Debi Das or his transferees).
- Whether the order dated 31 March 1881 (the order awarding mesne profits) was procured by fraud.
- Whether, notwithstanding the auction sale, portions of the mortgaged property later inherited by daughters of Zahur Ahmad Khan (and subsequently by their brothers) remained unaffected by the 1881 sale and therefore preserved a right of redemption in the plaintiff.
- Whether the plaintiff, claiming also to be a lessee from the three sons of Zahur Ahmad Khan, is entitled to claim redemption on that basis.
Arguments of the Parties
Appellant's Arguments
- The court below had no jurisdiction to award mesne profits because the appellate decree (which varied the decree of the court of first instance) did not direct payment of mesne profits; reliance was placed on section 583 of the Code of Civil Procedure, 1882.
- The 1881 auction sale held for realisation of mesne profits was a nullity if the award itself was beyond jurisdiction, and therefore the equity of redemption did not pass to the mortgagee.
- Reliance on the Privy Council decision in Kalka Singh v. Paras Ram was urged to show that an executing court cannot award mesne profits absent such a direction in the decree being executed.
- The order of 31 March 1881 was procured by fraud.
- A portion of the property (shares that passed by inheritance to daughters and then partly to their brothers) was allegedly acquired after the 1881 auction sale and thus should not have been affected by that sale; accordingly the plaintiff's vendors retained a redeemable portion which the plaintiff as purchaser could redeem.
- The plaintiff also claimed to be a lessee from the three sons and, on that basis, asserted a right to seek redemption.
Respondent / Mortgagee's Contentions (as summarized in the opinion)
- The mortgagee contended that under the terms of the mortgage he had the right to continue in possession and to receive the rents and profits so long as any amount remained due to him under the mortgage, and therefore he was entitled to the rents and profits he did not obtain during the period of dispossession.
- Implicitly, the mortgagee maintained that the subordinate court (the court of first instance) had jurisdiction to determine restitution and mesne profits once the appellate decree varied the earlier decree and awarded an additional sum which was not paid.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Hurroo v. Shoorodhonee Debia (opinion cites a ruling by Sir Barnes Peacock, C.J.) | That the reversal by an appellate court carries, by necessary implication, a direction to cause restitution to be made of all benefits of which the successful party was deprived by the erroneous decree of the court of first instance. | The court relied on this principle to hold that an appellate reversal implies entitlement to restitution (including mesne profits) and thus supported the view that the subordinate court could award mesne profits by way of restitution despite the appellate decree not using specific words awarding mesne profits. |
| Dorasami Ayyar v. Annasami Ayyar (Madras High Court) | Adoption of the same view as to restitution on reversal: an appellate reversal implies restoration of benefits lost due to the erroneous decree. | The court cited this decision as a supporting authority for the proposition that absence of specific direction in an appellate decree does not preclude the subordinate court from ordering restitution (including mesne profits) where reversal has occurred. |
| Collector of Meerut v. Kalka Prasad (this High Court) | Similar proposition that restitution follows reversal and that courts below may give effect to that restitution. | Used to reinforce the conclusion that the subordinate court had jurisdiction to award mesne profits as part of restitution following reversal by the appellate court. |
| Kalka Singh v. Paras Ram (Privy Council) | Held that an executing court, acting in execution of a decree, acted without jurisdiction when it awarded mesne profits despite the absence of any direction for mesne profits in the decree itself; sale for realisation of such improperly awarded mesne profits was invalid. | The court distinguished that decision as inapplicable: in Kalka Singh the executing court itself awarded mesne profits contrary to the decree, whereas in the present case the subordinate court had jurisdiction to determine and order restitution (including mesne profits) following reversal by the appellate court. Therefore Kalka Singh did not control the present facts. |
Court's Reasoning and Analysis
The court undertook a step-by-step examination of the appellant's contentions and the authorities relied upon.
1. Jurisdiction to award mesne profits: The court held that when an appellate court reverses a decree and thereby awards additional sums to the successful party, the reversal contains by necessary implication a direction for restitution of benefits that the successful party lost by reason of the erroneous earlier decree. The court cited Hurroo v. Shoorodhonee Debia and analogous decisions (Dorasami Ayyar v. Annasami Ayyar; Collector of Meerut v. Kalka Prasad) to support the proposition that the absence of a specific direction in the appellate decree for mesne profits does not deprive the subordinate court of jurisdiction to order restitution by awarding mesne profits.
2. Role of the subordinate court: The court emphasised that the only court competent to enforce the defeated plaintiffs' liability to make restitution (i.e., the court of first instance/subordinate judge) had jurisdiction both to restore possession to the mortgagee and to restore other benefits (including mesne profits) of which the mortgagee had been deprived. The court observed that the appellate decision had awarded an additional sum and the non-payment of that amount rendered the earlier decree infructuous; upon that state of affairs the subordinate court was entitled to determine and enforce restitution.
3. Distinguishing Kalka Singh v. Paras Ram: The court considered the Privy Council decision relied upon by the appellant but found it inapplicable. In Kalka Singh the executing court, lacking a direction in the decree, awarded mesne profits and sold property for their realisation — and that was held to be without jurisdiction. By contrast, in the present matter the subordinate court's award of mesne profits was made in the exercise of its jurisdiction to effect restitution following appellate reversal; therefore the reasoning of Kalka Singh did not defeat the award here.
4. Validity of the 1881 sale: Because the subordinate court had jurisdiction to award mesne profits as restitution, the sale held in execution of that award in 1881 was valid and conveyed to the purchaser the equity of redemption of the vendors of the plaintiff.
5. Fraud allegation: The court rejected the appellant's contention that the 31 March 1881 order was procured by fraud. The opinion notes that the mortgagee had withdrawn an amount previously awarded under the decree of the court of first instance, but finds that this circumstance did not impair his right to claim mesne profits after the appellate court varied the decree. The court found no concealment or other fact amounting to fraud to the prejudice of the mortgagors.
6. Whether any portion of the equity of redemption survived the 1881 sale (inheritance argument): The court analysed the sale-deeds and khata descriptions. It observed that the 4 biswas sold to the plaintiff in December 1901 were expressly described as part of the 7 biswas purchased by the three brothers in 1866; thus those 4 biswas were owned by the three brothers before the 1881 auction sale and were therefore not a post-sale acquisition. As for the 1 biswa sold in 1905 (described as part of khatas Nos. 2 and 3), the court noted khata No. 2 had been given in Zahur Ahmad Khan's lifetime to his three sons, and the three brothers owned a larger share than the 1 biswa sold to the plaintiff in those khatas by their own right and not as heirs of their sisters. On this basis the court refused to presume that the sale to the plaintiff included any part of property that the vendors may have acquired by inheritance from their sisters, and thus found that the plaintiff's purchases did not secure any share saved from the 1881 sale.
7. Lease contention: The court held that what the plaintiff termed a lease (as set out in paragraph 5 of the plaint) had not come into force; it was in truth only an agreement to grant a lease in future upon the lessors' recovery of possession. The court concluded that a mere agreement to grant a lease of that nature did not entitle the plaintiff to claim redemption.
Holding and Implications
Holding:
APPEAL DISMISSED.
The court affirmed the judgment of the court below and dismissed the plaintiff's appeal with costs.
Immediate consequences for the parties:
- The 1881 sale held in execution of the mesne-profits award was held to be valid and to have conveyed the equity of redemption to the purchaser (and thus the plaintiff, as purchaser from the mortgagors, had no right of redemption in respect of the lands covered by that sale).
- The allegation of fraud in procurement of the 1881 order was rejected; the mortgagee's acts described in the record did not amount to concealment or fraud invalidating the sale.
- The plaintiff's alternate contentions — that a portion of the property passed by inheritance to daughters and thus remained redeemable, and that the plaintiff's lease (or agreement to lease) entitled him to redemption — were rejected on the facts and legal analysis recorded.
Broader legal effect: The court applied established authorities to hold that an appellate reversal carries, by necessary implication, the right to restitution of benefits lost by the successful party and that the subordinate court has jurisdiction to order restitution (including mesne profits) in consequence. The court distinguished the Privy Council's decision in Kalka Singh v. Paras Ram as inapposite to the facts here. The opinion rests on application of those precedents; it does not state that it is creating a novel rule beyond following and applying earlier authorities.
Appeal dismissed.
Stanley, C.J and Banerji, J.:— This appeal arises in a suit for redemption of a mortgage, dated the 5th of February 1863, executed by one Ram Bakhsh in favour of one Debi Das, in respect of a 10 biswa share of the village Lodhamai. The mortgage was usufructuary, and it was provided in it that the profits were to be appropriated in lieu of interest, except a sum of Rs. 100 per annum, which was to be paid to the mortgagor. There were other provisions in the mortgage which for the purposes of this appeal it is unnecessary to refer to. In 1866 Ram Bakhsh sold 7 biswas out of the 10 biswas, that is, his equity of redemption in the 7 biswas, to Abdul Rashid, Abdul Aziz and Mahmud Khan, defendants, sons of Zahur Ahmad Khan. In 1871 Zahur Ahmad Khan purchased at auction 2 biswas 19 biswansis 10 kachwansis out; of the remainder of the mortgaged property. The remaining 10 kachwansis were purchased by Debi Das, who thus broke up the integrity of the mortgage. Zahur Ahmad Khan died in 1873 leaving him surviving the three sons above mentioned, five daughters, and two widows. In 1877 the three sons, under the guardianship of their mother, brought a suit for redemption of the mortgage of 1863 against Debi Das. On the 25th of May, 1878, the suit was decreed by the Court of first instance, the decree providing that the plaintiffs should pay to the mortgagee Rs. 6,967-1-4. On the 17th of July, 1878, the plaintiffs to that suit obtained possession of the mortgaged property in execution of that decree. Debi Das preferred an appeal to this court, and on the 2nd of June, 1879, this Court held that the mortgagee was entitled to a further sum amounting to nearly Rs. 9,000 and varied the decree of the court below by directing payment of the above sum in addition to the amount which, the decree of the court of first instance had ordered the plaintiffs to pay. The additional sum so awarded was not paid by the plaintiffs and the result was that the decree became infructuous. Debi Das thereupon applied for and resumed possession on the 1st of April, 1880. He then asked the Court to grant him mesne profits for the period during which he was out of possession by reason of the plaintiff's having executed the decree obtained by them from the court of first instance. On the 13th March, 1881, the court awarded to him Rs. 5,615-14-10 as ???. For the realisation of this amount Debi Das ??? of redemption of the plaintiffs to that suit to ??? on the 20th of August, 1881, and himself ??? mortgaged the 10 biswas to Sagar Mal ??? a decree on their mortgage and ??? 10 kachwansis to be sold by auction, ??? and Ali Ahmad, defendants, 1901 the three sons of ??? present ??? namely, the three sons of Zahur Ahmad Khan, and the daughters of Zahur Ahmad Khan brought a suit to redeem the mortgage of 1863. That suit was dismissed by this Court in 1905 on the ground, among others, that the heirs of Debi Das had not been joined as;parties to the suit. On the 7th of September, 1905, Abdul Kashid, Abdul Aziz and Mahmud Khan sold to Parbhu Dayal a further one biswa share and on the 16th of January, 1909, Parbhu Dayal instituted the suit out of which this appeal has arisen for redemption of the mortgage of 1863.
The court below has dismissed the suit that the ground that the equity of redemption of the mortgagors had validly passed to the mortgagee Debi Das under the auction sale which took place in 1881 and that therefore the plaintiff acquired no right under his purchase to redeem the mortgage.
The plaintiff has preferred this appeal. It is not denied that if the equity of redemption was acquired by the mortgagee the plaintiff's suit must fail, but it is urged by the learned advocate for the appellant that the Court had no jurisdiction to award mesne profits; that the auction sale held in 1881 for the realisation of the mesne profits so awarded was a nullity, and that the equity of redemption of the plaintiff's vendors did not pass to the mortgagee, Debi Das. This contention is based on the argument that the decree of the High Court varying that of the court below did not direct the award of mesne profits. Reliance is placed on the terms of section 583 of the Code of Civil Procedure, 1882. We are unable to accede to the contention of the learned advocate. In our opinion a decree of reversal by an appellate court contains, by necessary implication, a direction to the court ??? to cause restitution to be made of all the benefits of ??? successful party in the appeal was deprived by the ??? the erroneous decree of the court of first ??? by Sir Bakxes Peacock, C.J in Hurroo ??? v. Shoorodhonee Debia , “it is the ??? reversal that the party against ??? have restitution of all that he ??? Court of appeal ??? A similar view was held by the Madras High Court in Dorasami Ayyar v. Annasami Ayyar and by this High Court, in the Collector of Meerut v. Kalka Prasad . The absence of a specific direction in the decree of the High Court for payment of mesne profits did not deprive the court, which made the order of the 31st of March, 1881, of its jurisdiction to award mesne profits by way of restitution. It is clear that the court which could enforce the liability of the defeated plaintiffs to make restitution was the court of first instance. That court had jurisdiction not only to restore to the mortgagee the possession which he had lost, but all other benefits of which he had been deprived. As we have stated above, the decree of the High Court awarded to the mortgagee a further sum in addition to that awarded by the court of first instance and the effect of the non-payment of this additional sum was that the suit stood dismissed. The mortgagee contended that under the terms of the mortgage he had the right to continue in possession and to receive the rents and profits so long as any amount remained due to him under the mortgage and was therefore entitled to the rents and profits which he did not obtain during the period of his dispossession. The Only Court which could determine the question thus raised, and had jurisdiction to decide that question, was the court of the Subordinate Judge. It had jurisdiction to decide whether mesne profits should or should not be awarded. Whether its decision was correct or erroneous is immaterial, as the court had jurisdiction to decide rightly and to decide wrongly. Even if it be assumed that it erred in awarding mesne profits, it cannot be said that it acted without jurisdiction. Dr. Satish Chandra Banerji, the learned advocate for the appellant, strenuously relied on the ruling of their Lordships of the Privy Council in Kalka Singh v. Paras Ram . That ruling is in our judgment wholly inapplicable to the present case. There a court had made a decree for possession but not for mesne profits. The court executing the decree, in spite of the absence of a direction in the decree itself as to the payment of mesne profits, awarded such profits to the decree-holder and sold the judgment-debtor's property for the realisation thereof. It was held that the order of the court, executing the decree for the award of mesne profits, was without jurisdiction. That is not the case here. As we have pointed out above, the court of first instance was competent to determine the question of restitution. It had therefore jurisdiction to award mesne profits by way of restitution and it cannot be rightly contended that in so awarding it, it acted without jurisdiction. We are therefore of opinion that the sale which took place in execution of the decree for mesne profits so far back as the year 1881 was a valid sale and conveyed to the purchaser the equity of redemption of the vendors of the plaintiff.
The next contention on behalf of the appellant is that the order of the 31st of March 1881 was procured by the mortgagee by fraud. We are not satisfied that any fraud was perpetrated. It is true that the mortgagee had withdrawn from court the amount awarded to him under the decree of the court of first instance but that circumstance did not in any way affect his right to claim mesne profits, upon the decree of the court of first instance being varied and superseded by the decree of the lower appellate court. There was nothing which he concealed from the court, and we fail to see in what respect, it can be said that he acted fraudulently to the injury of the interests of the mortgagors.
The third contention on behalf of the appellant is that the court below ought not to have dismissed the suit totally, and that the whole of the equity of redemption had not passed to the mortgagee Debi Das. It is said that after the death of Zahur Ahmad Khan a portion of his interest in the mortgaged property was inherited by his five daughters, two of whom died in 1897. The brothers of those daughters, it is urged, inherited a portion of their share, and as this share was acquired after the auction sale, and as the sisters were no parties to the suit in which mesne profits were awarded, the share of the sisters, inherited by the plaintiff's vendors, was saved to them and as purchaser of such share the plaintiff is entitled to claim redemption. As we have already stated, Abdul Rashid, Abdul. Aziz and Mahmud Khan sold 4 biswas to the plaintiff on the 7th of December, 1901. The sale-deed distinctly refers to the 4 biswas as being part of the 7 biswas mentioned in the khewat as khata No. 1. The 7 biswas share was purchased by Abdul Rashid, Abdul Aziz and Mahmud Khan from the original mortgagor Ram Bakhsh in 1866. Therefore, so far as the 4 biswas share convened by the sale-deed of the 7th of December, 1901, is concerned, it was the property which was owned by the three brothers before the auction sale of 1881. As for the 1 biswa sold to the plaintiff under the sale-deed of the 7th of July, 1905, it is described in the sale-deed as being part of khatas Nos. 2 and 3. The khata No. 2, consists of 1 biswa 9 biswans is 15 kachwans is, which, it is admitted in the plaint, was given by Zahur Ahmad Khan in his life-time to his three sons. The third khata, no doubt, comprises property left by Zahur Ahmad at his death and inherited by his heirs, but as only 1 biswa out of khatas 2 and 3 was sold to the plaintiff and the plaintiff's vendors owned a larger share than 1 biswa in those khatas in their own right, and not as heirs to their sisters, we see no reason to presume that they intended to include in the sale a part of the share inherited by them from their sisters. We are therefore not satisfied that the sale to the plaintiff comprised any part of the property which his vendors may have acquired by right of inheritance to their sisters.
The last contention on behalf of the appellant is, that he is also a lessee from the three sons of Zahur Ahmad Khan and as such is entitled to claim redemption. The nature of the so-called lease is set forth in paragraph 5 of the plaint. It is manifest that the lease has not come into force and that in reality what is called a lease is only an agreement to grant a lease, which would come into operation in the event of the lessors recovering possession of the property now in the hands of transferees from the mortgagee. ??? of a transaction of this nature the plaintiff is not Entitled to claim redemption.
For these reasons we agree with the court below in holding that the plaintiff's suit was untenable and accordingly dismiss the appeal with costs.
Appeal dismissed.
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